                                NO. 12-09-00221-CR
                      IN THE COURT OF APPEALS
          TWELFTH COURT OF APPEALS DISTRICT
                                   TYLER, TEXAS
DARRELL FRANKLIN LEE,                          §             APPEAL FROM THE 7TH
APPELLANT

V.                                            §              JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                      §              SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Darrell Franklin Lee appeals his conviction for indecency with a child by contact. He
raises two issues on appeal. We affirm.

                                          BACKGROUND

       In September, 2007, Appellant’s four year old biological daughter, A.L., and her two
siblings visited Appellant at his home for an overnight stay. Appellant and A.L.’s mother were
in the process of obtaining a divorce at the time. Following A.L.’s stay at Appellant’s home, she
made an outcry to her mother that Appellant touched her in her “wrong spot.” After the
allegations were further investigated and developed by the Smith County Sheriff’s Department,
with the assistance of the Children’s Advocacy Center, Appellant was arrested and indicted for
indecency with a child by contact. At trial, the jury convicted Appellant of the charged offense
and assessed punishment at twenty years of imprisonment and a $10,000.00 fine. Appellant
timely filed a motion for new trial, which was denied by a written order of the trial court. He
timely appealed.


                                DENIAL OF NEW TRIAL HEARING
       In his first issue, Appellant argues that the trial court abused its discretion when it denied
a hearing on his motion for new trial alleging jury misconduct.
Standard of Review
        We review the trial court’s denial of a hearing on a motion for new trial for abuse of
discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). An appellate court
should not substitute its judgment for that of the trial court; rather, it should decide whether the
trial court’s decision was arbitrary or unreasonable. See Holden v. State, 201 S.W.3d 761, 763
(Tex. Crim. App. 2006). A trial court abuses its discretion in denying a motion for new trial only
when no reasonable view of the record could support the trial court’s ruling. Id.
        The purpose of a hearing on a motion for new trial is to (1) decide whether a cause should
be retried and (2) prepare a record for presenting appellate issues if the motion is denied. Smith,
286 S.W.3d at 338. A hearing on a motion for new trial is not an absolute right and is not
required when the matters raised in the motion are determinable from the record. Id. In addition,
when a matter is not determinable from the record, no hearing is required unless the complaining
party establishes the existence of “reasonable grounds” showing that he would be entitled to
relief. Id. at 339.
Applicable Law
        In an effort to impeach a jury verdict, a defendant is not entitled to a “fishing expedition”
into supposed jury misconduct. See Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App.
1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App.
1989); see also Reed v. State, 841 S.W.2d 55, 57 (Tex. App.–El Paso 1992, pet. ref’d).
        To support a motion for new trial based on jury misconduct, the affidavit of a juror may
be used to verify the misconduct. See Tinker v. State, 148 S.W.3d 666, 673 (Tex. App.–Houston
[14th Dist.] 2004, no pet.) (citing Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 368-
72 (Tex. 2000)). However, a juror is strictly prohibited from testifying, by affidavit or live
testimony, about any matter or statement that occurred during jury deliberations, or about the
effect of anything on the juror’s mind. TEX. R. EVID. 606(b); Tinker, 148 S.W.3d at 673. An
exception to this rule applies if the juror is testifying about “outside influences” that may have
affected the outcome of the case. TEX. R. EVID. 606(b). To constitute “outside influences,” the
information must have come from a source outside both the jury room and the jurors, i.e., a
nonjuror who introduces information affecting the verdict. See White v. State, 225 S.W.3d 571,
574 (Tex. Crim. App. 2007); see also Golden Eagle, 24 S.W.3d at 370.




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Discussion
       Appellant argues that he was entitled to a new trial hearing due to juror misconduct. See
TEX. R. APP. P. 21(c), (g). In support of his motion, Appellant attached the affidavit of juror
Betty Hicks. In her affidavit, Juror Hicks stated that she believed Appellant was not guilty and
disbelieved the testimony of the alleged victim in the case. She stated further that “once my
opinion was expressed in the jury room other jurors began to intimidate me in a derogatory
fashion until I agreed to vote in favor of guilt.” She then stated that she would have voted not
guilty but for the misconduct of the other jurors.
       The affidavit or testimony of any juror, including Juror Hicks, would have been
inadmissible at a new trial hearing because such evidence does not show an “outside influence.”
See TEX. R. EVID. 606(b); see also Thomas v. State, 84 S.W.3d 370, 371 (Tex. App.–Beaumont
2002, pet. ref’d) (holding inadmissible juror’s affidavit alleging that she was “pulled up” in her
chair, foreman refused to submit her question to court, and jurors were “hollering” and acting
violently, because source of allegations was jurors themselves and not an outside influence);
Hart v. State, 15 S.W.3d 117, 122, 124 (Tex. App.–Texarkana 2000, pet. ref'd) (holding
purported coercion by other jurors to reach a guilty verdict was not an outside influence).
Therefore, Appellant did not demonstrate reasonable grounds to support a new trial hearing.
       Appellant nevertheless asks that we “not make assumptions as to [ ] what that record
might have [included had the trial court held a hearing on the motion for new trial] . . . and
instead . . . hold that because Appellant timely filed and presented a statutorily correct Motion
for New Trial that included a request for an evidentiary hearing, the trial court abused its
discretion when it denied that Motion.” However, Appellant’s argument that he be afforded the
opportunity to discover admissible evidence to impeach a jury verdict is a fishing expedition and
an improper purpose of a new trial hearing. See Smith, 286 S.W.3d at 339 (disapproving of
using new trial hearings as fishing expeditions).
       Under the circumstances presented in this case, the trial court did not abuse its discretion
in denying Appellant’s request for a hearing on his motion for new trial. Appellant’s first issue
is overruled.




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                                        PUNISHMENT INSTRUCTION
       In his second issue, Appellant contends that the parole and good time credit jury
instruction was erroneous and egregiously harmed him.
Standard of Review and Applicable Law
       The function of the jury charge is to inform the jury of the applicable law and to guide the
jury in its application of the law to the case that the jury must decide. Hutch v. State, 922
S.W.2d 166, 170 (Tex. Crim. App. 1996). When reviewing a jury charge, we first determine
whether error exists and, if error does exist, we address whether the harm caused by the error
warrants reversal. Id. at 170-71.
       Appellant was charged by indictment with indecency with a child by contact. See TEX.
PENAL CODE ANN. § 21.11(a)(1) (Vernon Supp. 2009). Indecency with a child by contact is a
“3g” offense subject to a more stringent parole and good time credit instruction than other less
serious offenses. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(1)(C) (Vernon Supp.
2009). When a defendant is charged with a “3g” offense, the relevant portion of the correct
parole and good time credit provision in the court’s charge should read as follows:


                 Under the law applicable in this case, if the defendant is sentenced to a term of
                 imprisonment, he will not become eligible for parole until the actual time served
                 equals one-half of the sentence imposed or 30 years, whichever is less, without
                 consideration of any good conduct time he may earn.


TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (Vernon Supp. 2009).
       Where, as here, a defendant does not object to the jury charge, reversible error exists only
if the record shows a defendant has suffered not only actual harm, but egregious harm resulting
from the incorrect charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)
(establishing proper standard of review for jury charge error in absence of objection to jury
charge). Egregious harm arises if the error is so severe that it deprived the accused of a fair and
impartial trial. Id. In determining whether egregious harm exists, we consider the following
factors: (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and
(4) any other relevant information in the record as a whole. Id. Egregious harm is a difficult
standard to prove and such determination must be done on a case-by-case basis. Hutch, 922
S.W.2d at 171.




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Discussion
       In the punishment phase of Appellant’s trial, the trial court charged the jury, in relevant
part, as follows:


               Under the law applicable in this case, if [Appellant] is sentenced to a term of
               imprisonment, he will not become eligible for release on parole until
               [Appellant’s] actual calendar time served plus good conduct time, equals one-
               fourth of the sentence or 15 calendar years, whichever is less.


Since the jury convicted Appellant of indecency with a child by contact and sentenced him to
twenty years of imprisonment, the trial court’s charge incorrectly stated that Appellant would be
eligible for parole after serving one-fourth of his sentence. The correct charge should have stated
that he must serve one-half of his sentence before he would become eligible for parole.
Compare TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) with art. 37.07 § 4(b). Therefore, the
trial court erred in submitting the quoted instruction.
       However, Appellant did not object to the submission of this instruction. Accordingly, to
determine whether reversible error exists, we must determine whether the inclusion of the
instruction caused Appellant egregious harm. See Richardson v. State, 879 S.W.2d 874, 882
(Tex. Crim. App. 1993).
       Examining the punishment charge itself, the objectionable portion of the instruction was
two lines of the entire charge. The charge was otherwise unobjectionable and contained common
punishment instructions.      In fact, several of these instructions are mandated by the Texas
Legislature. See TEX. CODE CRIM. PROC. ANN. art. 37.07 §§ 4(a)-(c). Neither the State nor
Appellant’s trial counsel mentioned parole or good time credit during their jury arguments. In
addition, the trial court’s charge also contained the “standard curative language” admonishing
the jury not to consider the extent to which the parole law might be applied to Appellant. See
Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2007). Finally, the evidence relating to
punishment was strong. The jury determined that Appellant engaged in sexual contact with his
four year old biological daughter. The State developed expert testimony that, as a result of
Appellant’s actions, A.L. will have psychological damage for the rest of her life.
       After considering the above factors and the evidence related to each factor as a whole, we
cannot conclude that the charge error was so severe that it deprived Appellant of a fair and
impartial trial. Accordingly, we hold that the inclusion of the instruction in the jury charge does


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not amount to egregious harm. See id.; see also Garcia v. State, No. 12-07-00207-CR, 12-07-
00208-CR, 12-07-00209-CR, 12-07-00210-CR, 12-07-00211-CR, 2008 WL 541786, at *2-3
(Tex. App.–Tyler Feb. 29, 2008, pet. stricken) (mem. op., not designated for publication).
Appellant’s second issue is overruled.


                                                    DISPOSITION
         We affirm the judgment of the trial court.


                                                                  BRIAN HOYLE
                                                                     Justice



Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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