Pete Garcia v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-068-CR

 

PETE GARCIA,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 85th District Court

Brazos County, Texas

Trial Court # 23,656-85

 

O P I N I O N

 

A jury convicted Appellant Pete Garcia of three counts of aggravated sexual assault. See Tex. Penal Code Ann. 22.021(a)(1)(B), (2)(B) (Vernon Supp. 1997). The jury sentenced Garcia to incarceration for life in the Institutional Division of the Texas Department of Criminal Justice and a $2,000 fine on count one and 60 years' incarceration and a $1,000 fine on each of the remaining counts.

Garcia brings this appeal asserting seven points in which he claims the evidence is legally and factually insufficient to support his convictions and the court erred in denying his motion for new trial. We will affirm the judgment.

FACTUAL BACKGROUND

The Brazos County grand jury presented an indictment against Garcia on April 20, 1995. The indictment charges Garcia with sexually assaulting his daughter A.G. The record reflects that A.G. was four years old at the time of trial. The first count of the indictment alleges aggravated sexual assault by penetration. See id. 22.021(a)(1)(B)(i). The indictment alleges that this offense occurred on or about October 31, 1994. The second and third counts allege aggravated sexual assault by penetration and by contact. Id. 22.021(a)(1)(B)(i), (iii). These second and third offenses allegedly occurred on or about November 1 and November 24 respectively. The court did not submit the penetration allegations of the second and third counts in its charge to the jury. //

The record reflects that Estela Corpus, A.G.'s mother and Garcia's wife, was the State's primary witness. Corpus' recollection at trial of the dates on which the alleged sexual assaults occurred revolved around an operation she had in a Bryan hospital on January 24, 1995. // That is, she recalled that the first two incidents occurred before her operation and the last occurred after.

When questioned about the first incident, Corpus testified that she found Garcia and A.G. in a bedroom. She could not do anything because he had a gun beside him. Garcia was "massaging" A.G.'s vagina with his penis. Corpus testified that A.G.'s panties had been pulled down and their sexual organs were actually touching. A.G. was crying during this incident. Corpus concluded that this first occurrence happened in Bryan // prior to her operation. On cross-examination, she testified that this first incident occurred in 1994.

Concerning the second occurrence, Corpus wavered as to the date on which it happened, thus:

Prosecutor: Did anything like that ever happen again?

Corpus: Yes.

Prosecutor: When?

Corpus: September 21, 1995.

Prosecutor: September, 1995, was just about four months ago.

Corpus: `94 or `95. I'm not sure.

Prosecutor: Was it last year? //

Corpus: Yes.

She testified that this second incident occurred prior to her operation like the first. She was in a weakened condition prior to her operation. When she attempted to intervene, Garcia pushed her away. He threatened to kill Corpus if she told anybody what he was doing. Garcia's was "playing with [A.G.'s vagina] with his [penis]." Their sexual organs were touching and A.G. was screaming. Corpus did not see whether Garcia penetrated A.G.'s vagina. She testified that Garcia was not moving "back and forth," but he was moving A.G.

Corpus then testified about a third incident which happened after her operation in the same manner as the two prior instances. Garcia "rub[bed]" A.G.'s vagina with his penis. Corpus testified that this third occurrence happened in Bryan. // She did not tell anyone because Garcia threatened to kill her. Sometime later, Garcia "beat [Corpus] up severely", and the police arrested him for assault.

On cross-examination, Corpus testified that Garcia had sexually assaulted A.G. only on the three occasions she described. Garcia sought to impeach Corpus with the statements she made to Bryan Police Detective Jeff Reeves on March 2, 1995. Garcia's counsel inquired about a previous trip to the police department in which she failed to report the abuse allegations. He tried to impeach her with a statement she made to her sister Sarita ("Sara") in which she told Sara she had lied about the allegations. He also attempted to impeach Corpus with a statement she made to a Child Protective Services ("CPS") caseworker that Sara had forced her to report the allegations.

Detective Reeves testified that CPS reported the sexual assault allegations to the police on February 10, 1995. Reeves located Corpus on March 2 and took a statement from her about the allegations. Corpus initially advised Reeves that nothing had happened. However, after further discussion she admitted that she did not want to tell Reeves about the incidents because she feared Garcia. She agreed to give Reeves a statement.

On cross-examination, Reeves agreed that he had difficulty obtaining details about the allegations from Corpus. He attributed this difficulty to her emotional state and a language barrier. // In the initial interview, Corpus advised Reeves that Garcia sexually assaulted A.G. anywhere from "a couple of times" to five or possibly more times. She told Reeves that Garcia put his penis in A.G.'s vagina. With considerable prompting, Corpus told Reeves that the incidents all occurred after October 31, 1994 and that the last assault occurred on November 24. She told him that all the incidents happened in Bryan.

The State elicited on re-direct examination that Corpus also told Reeves about how Garcia threatened her with a rifle during one of the incidents and made her watch.

Sara testified as an "outcry" witness. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 1997). The Garcia children lived with Sara when Corpus entered the hospital for her operation. Corpus lived with Sara for a brief period after the hospital discharged her. She then decided to return to Garcia's apartment. Corpus' children pleaded with her not to return to Garcia. The children stayed with Sara.

That night, A.G. began repeatedly telling Sara that her "cookie hurt[]." She woke up that night crying. According to Sara, A.G. asked Sara and her husband James to "`take Sapo away from me. He's hurting me right here,' and she would point where." A.G. was pointing between her legs. A.G. had nightmares "every night." Sara explained that A.G. used "Sapo" as a nickname for Garcia.

Sara described other incidents through which she learned what A.G. meant when she referred to her "cookie." On one occasion, James asked A.G. and her younger sister if they wanted some cookies. They ran to him and "touched his penis" through the front of his pants. Another incident occurred when A.G. demonstrated what she meant with her younger sister. She opened her sister's legs and "put[] the teddy bear between her privacy" as if it were a man. During this incident, A.G. repeatedly called Garcia's name. On another occasion, A.G. straddled Sara's son and said, "Play with my cookie, and I'll play with your wee-wee." A.G. told Sara she learned this from Garcia.

Sara initially reported these matters to the sheriff. She then reported to CPS on February 9. CPS placed the children with Sara and other family members during the next months. Sara described several encounters during this period where A.G. cursed men in public and told them not to look at her. Sara conceded on cross-examination that Corpus told her on one occasion that she had lied about the allegations.

Corpus' sister-in-law Darla had custody of A.G. and her younger sister for several months in Idaho. She confirmed that the girls had nightmares and cried at night. She also witnessed similar encounters in public where they cursed strange men. The girls told Darla they did this "[b]ecause men hurt." Darla also described several instances during which she observed the girls acting out sexually. She felt that these instances were inappropriate behavior for children the girls' ages.

Dr. Scott Schams, a pediatrician, reviewed the clinical notes made by his colleague Dr. Kathleen Burford who examined A.G. on February 28, 1995. // Burford's notes revealed her observation that A.G. had a thickened hymen. Schams testified that this condition could be normal or could be caused in several ways, including repeated trauma. He agreed that attempted intercourse by an adult male could possibly cause the condition noted.

Burford's examination also detected scar tissue which Schams concluded had been caused by some past trauma. Burford also noted that A.G. did not "protest" the examination. Schams opined that A.G.'s relaxed condition during the examination is consistent with the manner in which a child who has been sexually abused would react. He concluded that the thickened hymen and scar could "very possibl[y]" have resulted from sexual abuse.

On cross-examination, Schams agreed that the thickened hymen could have also been caused by other traumas such as "falling onto something very hard" like a bicycle seat or playground equipment. He testified that Burford's findings were consistent with trauma which would be caused by penile penetration. He agreed, however, that the trauma could have been caused by some other object.

During his case in chief, Garcia presented several witnesses primarily to discredit Corpus' testimony. Debbie Cisneros testified that she had observed A.G. affectionately hugging and kissing Garcia around Christmas of 1994. She did not see Garcia abuse or mistreat Corpus in any way. To the contrary, she testified that Corpus verbally abused Garcia on that occasion. Cisneros concluded that Corpus did not have a good character for truthfulness. On cross-examination, Cisneros testified that during Christmas of 1994 Corpus and her children lived "on and off" with Garcia about one-half mile away from her house in Bryan. When Corpus was not with Garcia, she and the children lived with Sara a little more than a block away from Cisneros.

CPS caseworker Kira Marbach supervised a visit between Garcia, Corpus, and the children on March 3. Marbach recalled that the children responded affectionately to their parents at this visit. On cross-examination, Marbach testified that in her experience it is common for abused children to respond in this manner to their parents when they have been apart for a period of time, even if one of the parents was the perpetrator of the abuse.

CPS assigned Gina Kasarek to the Garcia case from April to June. She described the children as well-behaved and polite during her visits with them. She never received any reports of the children experiencing behavioral problems. On cross-examination, Kasarek agreed that children who have been sexually abused do not act out sexually in a consistent pattern. She confirmed that abused children are commonly happy to see their parents during supervised visits, even though one of the parents was the perpetrator of the abuse.

Agripina Sanchez testified that she leased a home to Garcia in Burleson County from June to December of 1994. // She added that Corpus and the girls lived with him "while he was there."

A CPS supervisor, Joan Hazelwood, testified from CPS records. // The records reflect that on February 9, 1995 A.G. told a CPS caseworker that Garcia had never "touched her privates." On February 10, Corpus told the caseworker that Garcia did "not touch [the girls'] private places." On cross-examination, Hazelwood agreed that young children are often reluctant to describe instances of sexual abuse during initial encounters with a CPS caseworker. She explained that spouses of parents who abuse their children often recant their initial reports because of the consequences which follow their reporting (e.g., lack of financial support from the perpetrator). She considered the sexual behavior engaged in by A.G. to be inappropriate for a child her age unless she had "experienced some type of sexual activity to [her] own bod[y]."

Roland Ramirez and Denise Johnson concluded Garcia's case. Ramirez and Johnson had both known Garcia and Corpus for several years. Ramirez provided his opinion that Corpus did not possess a good character for truthfulness. Johnson recounted a phone call she received from Corpus in which Corpus told Johnson that her family forced her to report Garcia for sexual abuse. Corpus told Johnson he really did not do it.

LEGAL SUFFICIENCY

In his first, second, and third points, Garcia attacks the legal sufficiency of the evidence to support his convictions in counts one, two, and three, respectively.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

Before reviewing the individual points, we must first address the premise on which each of Garcia's legal sufficiency arguments rest. Garcia's underlying premise is that the chronology of Corpus' testimony necessarily correlates to the chronology of the indictment's allegations. That is, when Corpus testified about the "first" incident, she necessarily was testifying about the allegations of count one. Garcia states it in this manner, "Corpus' account of the October 31, 1994 incident went like this: [whereupon he quotes Corpus' testimony describing the "first" incident]." He refers to Corpus' testimony concerning the other incidents in like manner (i.e., "the November 1, 1994 incident" and "the November 24, 1994 incident." We are not convinced that the chronology of the evidence must necessarily correlate to the chronology of the indictment.

When the indictment alleges that an offense occurred "on or about" a particular date, the State must prove that the accused committed the offense alleged within the applicable limitations period, regardless of the date alleged. Lemell v. State, 915 S.W.2d 486, 489 (Tex. Crim. App. 1995). The State is not bound by the date alleged so long as the proof shows that the offense occurred prior to presentment of the indictment and within the limitations period. Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990). When the State alleges that an offense occurred on or about a certain date, the date alleged is "immaterial." Dufrene v. State, 853 S.W.2d 86, 89 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). The limitations period for aggravated sexual assault of a child is ten years. Tex. Code Crim. Proc. Ann. arts. 12.01(2)(D), 12.03(d) (Vernon Supp. 1997).

Because A.G. was four at the time of trial, all three alleged offenses occurred within the limitations period. The offenses alleged necessarily occurred before the presentment of Garcia's indictment because A.G. no longer lived with Garcia or Corpus after February of 1995. The fact that the State alleged three offenses in a single indictment does not mean the State must prove its allegations in chronological order. The State must prove that each offense alleged occurred within the limitations period prescribed for that offense and prior to the presentment of the indictment. Lemell, 915 S.W.2d at 489; Gallegos v. State, 756 S.W.2d 45, 47 (Tex. App. San Antonio 1988, pet. ref'd).

Count One

Garcia contests the legal sufficiency of the evidence to show that he "penetrated the female sexual organ of A.G. during" the alleged October 31 encounter.

The State may prove penetration by circumstantial evidence. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990). The victim need not testify as to penetration. Id. Evidence of the slightest penetration suffices to uphold a conviction, so long as it has been shown beyond a reasonable doubt. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974); Rodriguez v. State, 762 S.W.2d 727, 732 (Tex. App. San Antonio 1988), pet. dism'd improvidently granted, 815 S.W.2d 666 (Tex. Crim. App. 1991).

When viewed in a light most favorable to the verdict, Corpus testified that Garcia's penis was touching A.G.'s vagina. // A.G. was screaming at this time. Garcia was not moving back and forth, but he was moving A.G. A.G. told Sara that Garcia had hurt her vagina. She engaged in developmentally inappropriate sexual acting out. Dr. Schams concluded that A.G.'s thickened hymen and the scar were consistent with trauma caused by the insertion of an adult male's penis.

From this evidence, we conclude that a rational trier of fact could have found that Garcia sexually assaulted A.G. by penetration as alleged. See Rodriguez, 762 S.W.2d at 732 (evidence sufficient based on victim's testimony that accused touched her vagina, medical evidence "consistent" with penetration, and outcry testimony). Thus, the evidence is legally sufficient to support the jury's verdict with respect to count one. We overrule Garcia's first point.

Counts Two & Three

In his second and third points, Garcia claims the evidence is legally insufficient to prove the State's allegations of contact and penetration in counts two and three, respectively. The State abandoned the allegations of penetration. // Thus, we review the evidence to determine whether it is legally sufficient to prove contact.

Corpus testimony establishes that Garcia "massaged" A.G.'s vagina with his penis. He had pulled her panties down. Their sexual organs "actually touched."

She testified that on a separate occasion Garcia used A.G. in the same way she had previously described. During this incident, Corpus stated that their sexual organs touched again. Sara's outcry testimony confirmed that Garcia's penis had come in contact with A.G.'s vagina.

From this evidence, we conclude that a rational trier of fact could have found that Garcia sexually assaulted A.G. by contact on the two occasions alleged. See Rodriguez, 762 S.W.2d at 732. Thus, the evidence is legally sufficient to support the jury's verdict with respect to counts two and three. We overrule Garcia's second and third points.

FACTUAL SUFFICIENCY

Garcia asserts in his fourth, fifth, and sixth points that the evidence is factually insufficient to support his convictions in counts one, two, and three, respectively.

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse "only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id.

We consider all the evidence in the record related to the contested issue, "not just the evidence which supports the verdict." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We review the evidence tending to prove the issue, "and compare[] it to the evidence which tends to disprove that [issue]." Id. We give appropriate deference to the jury's decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the "verdict merely because [we] feel that a different result is more reasonable." Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 146, 149 (Tex. 1986)).

In these points, Garcia argues that several inconsistencies within the record combine to render the evidence factually insufficient. He cites the evidence of Corpus' lack of credibility; Corpus' and A.G.'s conflicting statements about the occurrence of the allegations; A.G.'s demonstrations of affection toward Garcia; the inconclusive nature of the medical evidence; and conflicting testimony about where Corpus and Garcia lived during the pertinent time period to support this argument.

To review the factual sufficiency of the evidence to support the allegations of each count, we will compare the evidence tending to support the allegations with the evidence tending to disprove them. See Santellan, 939 S.W.2d at 164.

The Allegations as a Whole

Our review of the record reveals the following evidence which tends to disprove the allegations as a whole:

Corpus gave conflicting testimony about when the alleged incidents occurred;

Corpus told Reeves that Garcia had sexually assaulted A.G. possibly five or more times but testified that Garcia sexually assaulted A.G. only three times;

Cisneros and Ramirez characterized Corpus as untruthful;

Corpus told Sara on one occasion that she had lied about the allegations;

Corpus told Johnson that her family had forced her to report Garcia to the authorities and that the allegations were not true;

CPS records reflect that A.G. and Corpus both denied the allegations during the initial stages of the CPS investigation;

Corpus initially denied the allegations when questioned by Reeves;

Cisneros and Marbach observed A.G. respond affectionately to Garcia;

Cisneros saw Corpus verbally abuse Garcia on one occasion;

Kasarek never received any report of A.G. experiencing behavioral problems and always found her to be well-behaved and polite;

Schams agreed that the thickened hymen and scar detected in the examination could have been caused by trauma from some accident incidental to normal child's play; and

Sanchez testified that Garcia leased a house from her in Burleson County between June and December of 1994 and that Corpus and A.G. lived with Garcia in Burleson County when he stayed in this house.

 

We find the following evidence in the record which tends to support the allegations as a whole:

A.G. was four years old at trial. Neither Garcia nor Corpus had custody of A.G. after February of 1995;

The grand jury presented Garcia's indictment on April 20, 1995;

Corpus testified that Garcia had assaulted her and threatened her with a gun on other occasions;

A.G. told Sara that Garcia had hurt her "cookie";

Her actions demonstrated that her vagina was her "cookie";

She acted out sexually;

CPS assigned Kasarek to A.G.'s case only between April and June of 1995. Kasarek testified that child victims of sexual assault do not consistently act out sexually;

She told Sara she learned these things from Garcia;

Sara and Darla testified that A.G. cursed men because they hurt her;

A.G's relaxed manner during the medical examination is consistent with the manner in which a child who has been sexually abused would react;

Corpus testified that the first and last incidents occurred in Bryan. Reeves testified that she told him all three happened in Bryan. Sara testified that Bryan is located in Brazos County;

Cisneros testified that Corpus and the children lived in Bryan in December of 1994;

Marbach and Kasarek testified that sexually abused children often respond affectionately to their parents, even if a parent was the perpetrator of the abuse;

Hazelwood testified that abused children are often reluctant to describe instances of sexual abuse during initial encounters with CPS workers;

Reeves testified that Corpus told him that she initially denied the allegations because she feared Garcia;

Hazelwood stated that parents of sexually abused children frequently recant the allegations because of the consequences which follow; and

Hazelwood testified that A.G.'s sexual behavior is inappropriate for a child her age, unless she had "experienced some type of sexual activity to [her] own bod[y]."

 

Count One

The following evidence tends to disprove the allegations of count one:

Corpus testified that she did not see whether Garcia's penis penetrated A.G.'s vagina, but she told Reeves she saw Garcia put his penis in A.G.'s vagina.

 

Other evidence in the record tends to support the allegations of count one:

Corpus testified that Garcia's penis was touching A.G.'s vagina;

She saw Garcia moving A.G. back and forth;

She told Reeves that Garcia's penis penetrated A.G.'s vagina;

A.G. acted out sexually in a manner simulating sexual intercourse; and

Burford's findings of a thickened hymen and scar are consistent and with trauma caused by penile penetration.

 

Count Two

We find the following additional evidence which tends to support the jury's verdict on the second count: //

Corpus saw Garcia "massaging" A.G.'s vagina with his penis;

A.G.'s panties were down during this incident; and

Their sexual organs "actually touched."

 

Count Three

 

The record reflects other evidence which tends to support the jury's verdict on the third count: //

Corpus testified that the same thing happened a third time;

She testified that Garcia "used" A.G. the same way as she had previously described when she recounted the two previous incidents of abuse;

She stated that on this third occasion their sexual organs touched again and Garcia was "rubbing" A.G.; and

Garcia threatened to kill Corpus if she told anyone about this incident.

 

Corpus and A.G. initially denied the allegations. Hazelwood explained that this is common among sexual abuse victims. Reeves testified that Corpus explained to him she initially denied the allegations because she feared Garcia.

Corpus gave conflicting accounts of whether she personally observed Garcia's penis penetrate A.G.'s vagina. However, she consistently maintained that she did see contact between them in both her initial report and her testimony. Sara's outcry testimony tends to confirm that A.G. had been traumatized by Garcia.

Corpus' testimony that Garcia only abused A.G. on three occasions varied from her initial statement to Reeves.

A.G. responded affectionately toward Garcia on different occasions. Marbach, Kasarek, and Hazelwood all explained that this is common behavior for children who have been sexually abused.

Sara and Darla testified that A.G. cursed men because they hurt her. Kasarek said none of A.G.'s foster parents or other caregivers ever reported this type of behavior to her. However, CPS assigned her to the case for only a three month period.

Schams agreed that the injuries observed by Burford could have been caused by some trauma sustained in normal child's play. Nevertheless, he concluded that A.G.'s behavior during the examination and the injuries noted are consistent with a child who has been traumatized by attempted intercourse by an adult male.

Hazelwood observed that A.G.'s sexual acting out suggests that she had previously "experienced some type of sexual activity to [her] own bod[y]."

Cisneros and Ramirez characterized Corpus as untruthful. This characterization is supported by the inconsistencies in Corpus' various accounts of the alleged episodes of abuse. However, the State provided alternative explanations for each of the inconsistencies. The jury had the task of assessing the weight and credibility of Corpus' testimony.

We must give due deference to the jury's conclusions regarding the weight and credibility of the evidence. Clewis, 922 S.W.2d at 133. After reviewing the entire record, we conclude that the verdict on each count is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 134. Thus, the evidence is factually sufficient to support the verdicts. We overrule Garcia's fourth, fifth, and sixth points.

THE MOTION FOR NEW TRIAL

In his seventh point, Garcia complains that the court erred in overruling his motion for a new trial which alleged juror misconduct.

THE ALLEGED MISCONDUCT

Garcia contends that three instances of juror misconduct occurred during his trial. The first instance allegedly happened when one juror failed to advise his trial counsel that she had been a victim of sexual abuse and another failed to say that her uncle had sexually assaulted a member of the family. He also alleges that the jurors improperly considered the effect of parole law in their deliberations. The final alleged instance of misconduct occurred when the jurors received "other evidence" in the form of speculation about the contents of the CPS notebook Hazelwood held as she testified and "knowledgeable" jurors making individual calculations of the date of Garcia's probable release under the parole law.

Jurors Withholding Information

The State asked the voir dire panelists, "Have some of you known a victim of child sexual assault?" The record reflects that at least ten potential jurors responded affirmatively. //

During his voir dire examination, Garcia's trial counsel asked the jurors:

If anybody here is a victim of any kind of past sexual abuse or you have a loved one or friend or anybody that was the victim of sexual abuse, and if you think that that would affect your ability to be fair and impartial in this case, can I get a promise from you that you'll come talk to us?

You don't have to say anything now if you don't want to, but if that applies to anybody, will you please promise to stay behind and talk to the judge and lawyers about it if that applies to anybody? Do you promise me to do that? Okay.

The evidence at the hearing on Garcia's motion for a new trial revealed that the presiding juror had a relative who had been sexually assaulted as a child. Another juror, Juror C.S., had been sexually assaulted as a child. Garcia's trial counsel testified that neither of these jurors responded to the State's voir dire question. Neither Garcia's appellate counsel nor the State asked either juror whether she had responded to the State's question. //

The presiding juror testified that she had responded to Garcia's question by raising her hand. She did not come forward at the conclusion of voir dire, however, because she "did not think that [the prior incident] would interfere with [her] ability to pass a fair judgment."

Juror C.S. testified that she did not respond to Garcia's question because she "didn't feel like [her prior victimization] would make [her] unfair or impartial."

A form of juror misconduct occurs when a juror withholds material information during voir dire. See Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). "[D]efense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial . . . ." Id. at 363-64. Unless defense counsel poses questions so calculated, a juror cannot be said to have withheld information. Id. at 364.

Because Garcia's trial counsel asked his question in a conjunctive form, prospective jurors had no need to respond unless they had been a victim of sexual abuse or knew such a victim and they believed "that that would affect [their] ability to be fair and impartial." Both of the jurors in question testified that they did not believe the prior incidents would affect their ability to be fair and impartial. Thus, they did not withhold any information. Id.

Receipt of Other Evidence and

Improper Consideration of Parole Law

Garcia contends that juror speculation about the contents of a notebook held by Hazelwood when she testified constituted new evidence. Hazelwood testified from the CPS record. Two jurors testified at the new trial hearing that the jurors noted the thickness of Hazelwood's notebook and speculated that the file contained documentation of other instances of sexual abuse perpetrated by Garcia. One of these jurors also testified that a few jurors discussed whether Garcia should be assessed a harsher punishment because of the possible other offenses.

The presiding juror testified that she admonished the jurors not to discuss or consider the contents of the notebook in their deliberations.

Garcia also alleges that several jurors injected new evidence into the deliberation process by their calculations of when Garcia would be eligible for release on parole. During the hearing on Garcia's motion for new trial, two jurors testified that several of their counterparts told them that under the parole law, Garcia would only serve a fraction of his sentence. Each of the jurors who provided this parole law information gave different calculations of the time Garcia would actually serve (e.g., one juror allegedly calculated that Garcia would be released in 10 years if sentenced to 60). The two jurors stated that they agreed to harsher sentences because of this information.

The presiding juror disputed these allegations. She testified that the effect of the parole law was mentioned at several points during the jury's deliberations. However, at each instance where it was mentioned, she cautioned the jurors that they were not to consider or discuss parole law. Two other jurors testified that they did not recall that any specific parole law calculations were made or discussed by other jurors.

The decision to grant or deny a motion for new trial alleging juror misconduct lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not substitute our judgment for the trial court's, but rather determine whether the decision is arbitrary or unreasonable. Id. "The trial court is the sole judge of the credibility of the testifying jurors." Id. When the jurors' testimony conflicts, the trial court does not abuse its discretion in overruling the motion. Id.

The mere mention of evidence outside the record among jurors during their deliberations does not mandate a new trial. Reed v. State, 841 S.W.2d 55, 59-60 (Tex. App. El Paso 1992, pet. ref'd). This is particularly true when the mention is immediately followed by an admonishment that the jury cannot consider the "other evidence." Id. at 60. If the evidence conflicts concerning whether the jurors discussed matters outside the record, the court does not abuse its discretion in overruling a motion for new trial based on the alleged receipt of such matters. Id.; accord Lewis, 911 S.W.2d at 7.

We have already determined that the presiding juror and Juror C.S. did not withhold information. The court heard conflicting evidence on the other issues raised in Garcia's motion for new trial. Thus, the court did not abuse its discretion in overruling the motion. Lewis, 911 S.W.2d at 7. We overrule Garcia's seventh point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

 

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed May 7, 1997

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