CATHY JEAN CHAFFIN,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00996-CR
CATHY JEAN CHAFFIN,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF GRAYSON COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITHAM
JUNE 29, 1989
Appellant appeals a conviction for resisting arrest. In her sole point of error, appellant contends that the trial court erred in failing to admit into evidence two affidavits from jurors at the hearing on her motion for new trial. We disagree. Acccordingly, we affirm.
Appellant's initial arrest occurred after the car she was driving was pulled over for registration irregularities. The arresting officer testified that appellant failed to produce her license or proof of insurance and was subsequently placed under arrest. At that time, appellant attempted to re-enter her vehicle, close the door, and start the engine. When the officer attempted to pull appellant out of the car, appellant kicked the officer in the legs. A struggle ensued during which the officer knelt in the front seat of the vehicle and handcuffed appellant. Appellant continued to resist arrest even after being placed in the patrol unit. Appellant's defense was based on the theory that she was justified in using excessive force. Appellant insists that the officer had knelt on her abdomen, causing appellant great pain. The pain resulted from her delivery of a baby six weeks prior to her arrest. In delivering, appellant received fifteen stitches in her abdomen.
Following trial, appellant produced two jurors' affidavits which served as exhibits to her motion for new trial. These affidavits contained testimony concerning the mental processes of two jurors. In the first affidavit, one juror stated that she was unsure whether the officer's words constituted force. She stated that the jury had sent out a note to the judge who merely told the jury to read the charge. The juror then stated that other jurors said that an officer's words did not constitute force. Shortly after listening to this discussion, the juror changed her vote from "not guilty" to "guilty." In the second affidavit, another juror also stated that he changed his vote after listening to other jurors. A woman on the jury happened to be a nurse who felt that appellant's stitches would have been healed by the time of the arrest. This woman had had stitches herself, and did not believe that pain would have been a factor in appellant's resisting arrest. The juror signing the affidavit chose to believe this woman juror. He changed his vote from "not guilty" to "guilty."
Appellant contends that the affidavits show the mental processes of jurors as the admission of "other evidence" in the jury's deliberations over and above the evidence adduced at trial. A hearing was conducted on appellant's motion. Appellant attempted to introduce these affidavits into evidence at this hearing. The State objected to the admission of the affidavits. The State argued that the affidavits constituted hearsay and were inadmissible under Texas Rule of Criminal Evidence 606(b). Rule 606(b) provides:
 
 
                Upon an inquiry into the validity of a verdict or
                indictment, a juror may not testify as to any
                matter or statement occurring during the course
                of the jury's deliberations or to the effect of
                anything upon his mind or emotions as influencing
                him to assent to or dissent from the verdict or
                indictment or concerning his mental processes in
                connection therewith, except that a juror may
                testify as to any matter relevant to the validity
                of the verdict or indictment. Nor may his affi-
                davit or evidence of any statement by him concern-
                ing a matter about which he would be precluded from
                testifying be received for these purposes.
TEX. R. CRIM. EVID. 606(b).
The trial court sustained the State's objections to the introduction of the affidavits and overruled appellant's motion for new trial.
Under rule 606(b) jurors remain incompetent to impeach their verdict by affidavit or testimony about their mental processes during deliberations except where relevant to an overt act of jury misconduct. See Daniels v. State, 600 S.W.2d 813, 816 (Tex. Crim. App. 1980); Frias v. State, 335 S.W.2d 765, 765 (Tex. Crim. App. 1960). In the present case, the jurors are merely testifying to their mental processes based on their past experiences. The law contemplates that jurors will consider their past experiences. Bartell v.State, 464 S.W.2d 863, 865 (Tex. Crim. App. 1971). In determining what is proper and what is improper discussion among jurors, regard must be had for the fact that the jury are supposedly men of different walks of life, avocations, and necessarily views that would be affected by their past experiences and situations. Bartell, 464 S.W.2d at 865. They could hardly arrive at a solution of their differences without a discussion of the facts before them, and each man's discussion would necessarily be tinged or affected by his own viewpoint and experiences. Bartell, 464 S.W.2d at 865. We conclude, therefore, that the trial court did not err by refusing to allow the jurors' affidavits into evidence. We overrule appellant's sole point of error.
Affirmed.
                                                  
                                                  WARREN WHITHAM
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00996..F
                
 
 
 
File Date[01-02-89]
File Name[880996]