Charles Marshall v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-01-00376-CR
Charles MARSHALL,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2000CR5766
Honorable Mary Rom n, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: September 11, 2002

AFFIRMED

Charles Marshall was convicted of the offense of driving while intoxicated, third offense and was sentenced to five years imprisonment. Marshall brings two issues on appeal. We overrule both issues and affirm the judgment of the trial court.

Background

Marshall was charged with driving while intoxicated after being involved in an automobile accident with another vehicle occupied by the Castorena family. Members of the family suffered personal injuries as a result of the accident. Marshall pled not guilty and was convicted after a trial by jury.

Juror Misconduct

In his first issue, Marshall argues that the trial court "erred in denying his motion for new trial based on the grounds that after retiring to deliberate the jury received other evidence and that jury misconduct occurred." Marshall contends that jury misconduct occurred during deliberations on his punishment. In support of his motion, Marshall attached affidavits of four jurors. The affidavits consistently affirm that during deliberations, one of the jurors informed the other jury members that Marshall had already served thirty days in jail for his first driving while intoxicated offense and had also served ninety days in jail for his second offense. The juror told the other members that she had "taken this information from the copies of the court papers that were in evidence." The juror was incorrect; Marshall never served jail time for his first two driving while intoxicated offenses. Marshall claims that this juror's conduct constitutes an improper outside influence on the other jury members. We disagree.

A defendant must be granted a new trial when, after retiring to deliberate, the jury has received other evidence or when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial. Tex. R. App. P. 21.3(f)-(g); In re S.P., 9 S.W.3d 304, 308 (Tex. App.--San Antonio 1999, no pet.). Allegations of juror misconduct must be supported by an affidavit from a juror. In re S.P., 9 S.W.3d at 309. Although the Texas Rules of Evidence limit the testimony a juror may give when the validity of a verdict or indictment is questioned, a juror may testify to "outside influences" improperly bearing on any juror:

[A] juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b). The following acts do not constitute an outside influence: (1) information gathered by a juror and introduced to the jury; (2) coercive influence of one juror over other jurors; and (3) injection of a juror's own personal experiences or knowledge. In re S.P., 9 S.W.3d at 309. An outside influence must emanate from outside the jury and its deliberations, such as a non-juror introducing information to the jury. Id. Here, the affidavits contain no allegations of outside influence. They only allege that a juror misinterpreted documents in evidence. We, therefore, hold that the trial court did not err in denying Marshall's motion for new trial and overrule his first issue.

Evidence of Insurance

In his second issue, Marshall argues that the trial court abused its discretion in refusing to allow him to introduce evidence that he had liability insurance and that the Castorena family was compensated for their injuries. A trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard on appeal. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion will be found "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We will uphold the trial court's ruling even if it is incorrect if we conclude "it is permissible under any theory applicable to the case." Draheim v. State, 916 S.W.2d 593, 599 (Tex. App.--San Antonio 1996, pet. ref'd).

At the guilt/innocence phase of the trial, James Castorena testified regarding the injuries suffered by his family as a result of the accident. During cross-examination, Marshall's attorney attempted to question Castorena about the $40,000 settlement his family received from Marshall's insurance company. The State objected, arguing that whether Castorena had been compensated was irrelevant. Marshall responded that it was being offered to show Castorena's prejudice against Marshall. The trial court disagreed, noting that Castorena had already received his settlement and there was no civil action pending against Marshall:

Court: Let me understand this correctly. There is no civil suit pending?

State: No civil suit pending.

Court: This man has nothing to gain from testifying today?

State: Nothing, Your Honor.

As Castorena and his family had already received a settlement and did not have a civil action pending against Marshall, the trial court did not abuse its discretion in determining that the evidence was irrelevant.

Marshall also argues that he should have been permitted to introduce this evidence during the punishment phase of the trial to show that restitution had already been made to the Castorena family. However, during the punishment phase when Marshall's attorney attempted to introduce the evidence, the attorney argued only that he should be allowed to question Marshall about the insurance issue because the State had left a false impression. The State had asked Marshall whether he wrote the victim a letter of apology. Marshall's attorney argued that he should be allowed to elicit testimony from Marshall that his insurance company instructed him not to contact the Castorena family. At no time did Marshall's attorney argue to the trial court that the evidence should be allowed to show that restitution had been made to the Castorena family. Marshall, thus, has waived this argument on appeal. See Tex. R. App. P. 33.1. Even had Marshall not waived this issue, whether Marshall had liability insurance is simply not relevant to his punishment in a criminal case. We overrule Marshall's second issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish