Galen Morris v. The State of Texas--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00062-CR

Galen Morris,

Appellant

v.

The State of Texas,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 0611498 CR

MEMORANDUM Opinion

Morris appeals his conviction for harassment of a hunter. See Tex. Parks & Wildlife Code Ann. 62.0125(g) (Vernon 2002). We affirm.

Texas Rule of Evidence 606(b). Morris s first two issues concern Texas Rule of Evidence 606(b). In Morris s first issue, he contends that the trial court erred in overruling Morris s motion for new trial, which the court did on the basis of Rule 606(b). In Morris s second issue, he contends that Rule 606(b) is unconstitutional as applied to him.

Rule 606(b) provides, in relevant part:

Upon an inquiry into the validity of a verdict . . . , 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 . . . . 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 . . . whether any outside influence was improperly brought to bear upon any juror . . . .

Tex. R. Evid. 606(b).

Motion for New Trial. In Morris s first issue, he contends that the trial court erred in overruling Morris s motion for new trial.

The decision to grant or deny a defendant s motion for new trial is reviewed only for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 905 (Tex. Crim. App. 2007); accord Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

[T]he test for abuse of discretion

is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.

State v. Herndon, 215 S.W.3d 901, 907-908 (Tex. Crim. App. 2007) (quoting Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005)); see Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g).

The evidence that Morris sought to offer at the hearing on his motion for new trial constituted two affidavits concerning the jurors use of the notes they had taken during trial. Morris cursorily argues that his affidavits were admissible as evidence of an outside influence. Cf. Tex. R. App. P. 33.1(a), 38.1(h). Assuming without deciding that Morris s issue is adequately briefed, Morris s evidence of the jurors use of notes does not constitute evidence of outside influence. The plain language of . . . Rule 606(b) indicates that an outside influence is something outside of both the jury room and the juror. White v. State, No. PD-0118-06, 2007 Tex. Crim. App. LEXIS 693, at *8 (Tex. Crim. App. June 6, 2007). To constitute outside influences, . . . information must have come from a source outside the jury, i.e., a non-juror who introduces information affecting the verdict. Tinker v. State, 148 S.W.3d 666, 673 (Tex. App. Houston [14th Dist.] 2004, no pet.); accord Franks v. State, 90 S.W.3d 771, 799 (Tex. App. Fort Worth 2002, no pet.); see Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000).

The trial court did not abuse its discretion in holding that Rule 606(b) s general prohibition barred the admission of Morris s affidavits, and those affidavits were not admissible under the rule s exception for evidence of outside influences; and thus the court did not err in overruling Morris s motion for new trial. We overrule Morris s first issue.

Constitutionality. In Morris s second issue, he contends that Texas Rule of Evidence 606(b) is unconstitutional as applied to him.

As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection or motion . . . . Tex. R. App. P. 33.1(a). To preserve error for appellate review, the point of error on appeal must comport with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); accord Dixon v. State, 2 S.W.3d 263, 269 (Tex. Crim. App. 1998); see Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005); Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).

Morris did not make a constitutional complaint in the trial court. Morris s complaint on appeal does not comport with his objection at trial. We overrule Morris s second issue.

Sufficiency of the Evidence. In Morris s third issue, he contends that the evidence was factually insufficient.

In a factual sufficiency review, the evidence is reviewed in a neutral light . . . . Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), overruled on other grounds, Watson at 405). Evidence is factually insufficient when, . . . the evidence is so weak that the verdict seems clearly wrong or manifestly unjust, or the verdict is against the great weight and preponderance of the evidence. Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007) (quoting Watson at 414-15, 417). [A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial. Watson at 417.

Morris argues that there is no evidence that he made any noise, and no evidence that he knew when the complainant was hunting, so that Morris could not have intentionally harassed the complainant by making noise. The State points primarily to the following evidence. While hunting, the complainant heard coming from the area of Morris s house the sound of an air horn blowing and someone yelling whether the complainant had seen any deer. Morris told the complainant that he had been blowing the horn and that he planned on continuing blowing the horn. (Br. at 12 (quoting I R.R. at 122).)

The jury was rationally justified in finding Morris guilty beyond a reasonable doubt. The evidence was factually sufficient. We overrule Morris s third issue.

Conclusion. Having overruled Morris s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed August 29, 2007

Do not publish

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