Vandy Inthalangsy v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-94-308-CR

VANDY INTHALANGSY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 20642CR

O P I N I O N

Although Vandy Inthalangsy pled guilty to aggravated robbery, he requested that a jury determine his punishment, and it assessed a sentence of twenty years' imprisonment. See Tex. Penal Code Ann. 29.03 (Vernon 1994). He sought a new trial because one of the jurors read a newspaper article relating to the case during a day-long break in the jury's deliberations. See Tex. R. App. P. 30(b)(7), (8). The court denied his motion and he attacks that ruling by one point of error. We will affirm.

After hearing evidence, the jury deliberated until approximately 6:00 p.m. on August 9, 1994. One of its members could not attend court the next day, so the jury did not meet on August 10. On the 10th, the Waxahachie Daily Light published an article entitled "Jury Still Out On Robbery Case," which reported on the status of the jury's deliberations. The article indicated that the victim "saw venom in [Inthalangsy's] face" during the offense and that the possibility of probation for Inthalangsy "unnerved" the victim. The article quoted the victim as saying, with regard to probation, "It's only an injustice against the rest of society. . . . There have been too many instances of youth not being punished for their crimes and then they go out and get deeper and deeper into it. They have no respect for life or the law." The jury returned its verdict on August 11, assessing the twenty-year punishment.

Inthalangsy moved for a new trial, alleging not only jury misconduct but also that the jury received other evidence after it retired to deliberate. See id. He attached to his motion an affidavit from one of the jurors, who confessed to reading the Daily Light article on August 10 and to changing her vote on punishment from ten years to twenty years on August 11. At the hearing on the motion for a new trial, however, this juror testified that the article "[h]ad nothing to do with [her] decision" on punishment and that she had not mentioned it to any of the other jurors. A second juror also testified that the article was not mentioned during deliberations.

Inthalangsy had the burden of establishing his entitlement to a new trial. See Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985); Martin v. State, 823 S.W.2d 395, 397 (Tex. App. Texarkana), pet. ref'd, 830 S.W.2d 137 (Tex. Crim. App. 1992). We will not disturb the court's ruling unless he establishes that the court abused its discretion by denying his motion. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

He is entitled to a new trial if he establishes that "after retiring to deliberate the jury has received other evidence." See Tex. R. App. P. 30(b)(7); Rogers v. State, 551 S.W.2d 369, 370 (Tex. Crim. App. 1977). He must show that the jury actually received other evidence that was detrimental to him. See Garza v. State, 630 S.W.2d 272, 276 (Tex. Crim. App. 1982) (on rehearing); Reed v. State, 841 S.W.2d 55, 59 (Tex. App. El Paso 1992, pet. ref'd). " [O]ther evidence' is not actually received by the jury . . . unless it was discussed and considered by the jury and had some harmful effect on the defendant." Reed, 841 S.W.2d at 60 (citing Stephenson v. State, 571 S.W.2d 174, 176 (Tex. Crim. App. [Panel Op.] 1978)). Because both jurors testified that the article was not mentioned during deliberations, the court could find, as a matter of fact, that the jury did not actually receive other evidence. See Stephenson, 571 S.W.2d at 176; Honeycutt v. State, 157 Tex. Crim. 206, 248 S.W.2d 124, 125 (1952). Thus, the court did not abuse its discretion by rejecting Inthalangsy's contention under Rule 30(b)(7). See id.; Tex. R. App. P. 30(b)(7).

Alternativly, if Inthalangsy establishes that "the jury has engaged in such misconduct that [he] has not received a fair and impartial trial," he is entitled to a new trial. See Tex. R. App. P. 30(b)(8); Rogers, 551 S.W.2d at 370. The juror who read the article testified that it did not influence her decision on punishment. Both of the jurors stated that the article was not discussed during their deliberations. Based on this testimony, the court could find that Inthalangsy's right to a fair and impartial trial was not affected by the juror's reading of the article. See Moody v. State, 827 S.W.2d 875, 899 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 113 S. Ct. 119, 121 L. Ed. 2d 75 (1992); Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990). Thus, he has not shown that the court abused its discretion by rejecting his claim under Rule 30(b)(8). See id.; Tex. R. App. P. 30(b)(8).

Because Inthalangsy has not shown that the court abused its discretion when it denied his motion for a new trial, we overrule his sole point of error.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 31, 1995

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