Reversed and Remanded and Memorandum Opinion filed May 9, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00284-CR


                     THE STATE OF TEXAS, Appellant

                                       V.
                      STEPHANIE SANDERS, Appellee


                 On Appeal from County Court at Law No. 1
                          Fort Bend County, Texas
                   Trial Court Cause No. 11-CCR-157732

                MEMORANDUM                     OPINION

      The State of Texas appeals an order granting a motion for new trial filed by
appellee Stephanie Sanders. The State contends that the trial court abused its
discretion by granting a new trial (1) “on a motion that did not show that
Appellee’s trial was seriously flawed;” and (2) “based on his thoughts, personal
feelings, or emotions about the case.” We reverse and remand.
                                         Background

      Appellee was charged by information with class A misdemeanor theft of
property, namely an Apple iPad, valued at $500 or more but less than $1,500.1
Following a jury trial on January 31, 2012 and February 1, 2012, the jury found
appellee guilty of the charged offense. The trial court sentenced appellee on
February 9, 2012 to 365 days confinement probated for 14 months and a $200 fine.

      Appellee filed a motion for new trial on March 5, 2012. In its entirety, the
motion states as follows:

      STEPHANIE SANDERS, Defendant in the above cause, moves the
      Court to set aside the verdict and grant her a new trial, or in the
      alternative to grant a new trial as to punishment only under Texas
      Rules of Appellate Procedure 21 herein upon the following grounds:
               1. In the interest of justice this conviction and sentence should
               be reviewed and new trial granted by this Honorable Court.
               2. The verdict was contrary to the law and justice under TRAP
               21.3 (b) and (h).
               3. The verdict was not the free, full, and voluntary true verdict
               of all members under TRAP 21.3 (c), (g) and (h). One of the
               jurors, Deborah Simpson, was seen in tears and broke down and
               fled the court room after the verdict was read. That juror was
               apparently the lone holdout at one point and it is clear from the
               jury notes and questions sent to the court that her verdict was
               the product of coercion by the other jurors and not her true and
               fair opinion.
      WHEREFORE, Defendant prays that a new trial be granted as to
      guilt, or in the alternative, as to punishment alone under TRAP 21.1
      (b). The defendant also requests that an evidentiary hearing be heard
      at which witnesses may be presented and evidence and testimony may
      be received on the issues raised in this motion.
No hearing was held on appellee’s motion, and the trial court granted appellee’s

      1
          See Tex. Penal Code Ann. § 31.03(a), (e)(3) (Vernon Supp. 2012).

                                               2
motion on March 5, 2012. The trial court order states: “ON THIS DAY, the Court
having heard the arguments of parties and having reviewed this motion hereby
GRANTS the defense motion for new trial and orders the defendant considered for
new bond in these proceedings.”

      The State filed a “motion to set aside an unauthorized order granting
defendant’s motion for new trial” on March 21, 2012. In its motion, the State
argued that (1) appellee’s motion was fatally defective because it was not verified
and supported by affidavit; (2) a new trial on punishment should not be granted
because appellee agreed to punishment and cannot now challenge the agreement;
(3) Texas Rule of Evidence 606(b) allows only for juror testimony of coercive
outside influence and bars a juror from testifying regarding any coercive influence
of any juror upon another juror; (4) if the trial court fails to find appellee’s motion
“fatally defective or to sustain the State’s objection pursuant to Rule 606(b),” the
State’s attached affidavits from the jury foreperson Barbara Miller and juror Debra
Simpson provide evidence that there was no jury coercion during jury deliberations
in this case; and (5) lead prosecutor Ali Korfin’s affidavit provides that none of the
jurors “appeared emotionally upset or in tears” when they left the courtroom after
the verdict.

      The trial court held a hearing on the State’s motion to set aside on March 21,
2012. At the hearing, appellee argued that the trial court need not “reconsider its
fair decision on granting the motion” because the trial court “has complete
discretion” to grant a motion for new trial. Appellee also argued that the State
“overlooks the fact that on one of the grounds that this was based upon was the
interest of justice. Interest of justice are [sic] within the sound of discretion of the
Trial Court. They are frankly reasons that the Trial Court neither needs to explain
on the record nor does the Trial Court need to adopt or make any findings

                                           3
regarding this as the Court of Appeals presumes that the Trial Court made such
findings that would be supported by law.”

      The State responded that appellee’s motion was fatally defective because it
was not verified or supported by an affidavit. The State pointed out that the trial
court’s order inaccurately stated that the trial court granted appellee’s motion after
hearing arguments of the parties because the State was not present, made no
arguments, had “no notice that the motion was going to be presented,” and had “no
chance to respond or object” to the motion. The State also pointed out that the trial
court’s order did not reflect whether the motion granted a new trial solely on
punishment, and that a new trial on punishment would be improper because
appellee agreed to the assessed punishment. The State also contended that there is
no evidence in this case that would “give any argument to interest of justice,” and
asked the trial court “for a legal basis through your findings of fact and conclusions
of law in order to ascertain the basis for the Motion for New Trial.” Lastly, the
State noted that the trial court polled the jury after the verdict, and that each juror
confirmed that the verdict was “true and accurate.”

      Appellee agreed with the State that the trial court’s order “can be clarified”
to reflect that the court did not grant a new trial on punishment only because the
punishment “was a product of negotiation.” Appellee argued that the court acted
within its discretion in granting appellee’s motion for new trial and urged the trial
court to stand by its decision. The hearing concluded with the following exchange
between the State and the trial court:

      THE STATE: Lastly, if this Court decides to keep with its original
      decision and while ordering a new trial, then the State would ask for
      Findings of Fact and Conclusions of Law in order to ascertain what
      the basis was so we can then pursue an appeal.
      THE COURT: Okay. And I think I can just cut the chase on that.

                                          4
      THE STAE: Okay.
      THE COURT: It’s in the interest of justice. After hearing this case, it
      was one that stayed on my mind. I didn’t have to think about it too
      long when the Motion was submitted because I questioned the case at
      the time of trial; and so, I am going to grant a new trial in the interest
      of justice and the issue that it’s a new trial. It’s not punishment. I will
      — it’s the guilt. Okay.
The State filed a timely notice of appeal on March 22, 2012.

                                   Standard of Review

      The granting of a motion for new trial rests within the sound discretion of
the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Moreno v.
State, 297 S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d.).
We view the evidence in the light most favorable to the trial court’s ruling and
uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). ‘“We do not
substitute our judgment for that of the trial court; rather, we decide whether the
trial court’s decision was arbitrary or unreasonable.”’ McQuarrie v. State, 380
S.W.3d 145, 150 (Tex. Crim. App. 2012) (quoting Holden v. State, 201 S.W.3d
761, 763 (Tex. Crim. App. 2006)). We presume the trial court correctly granted a
new trial, and the State has the burden to establish the contrary. Moreno, 297
S.W.3d at 520. We will uphold the trial court’s judgment if any appropriate
ground exists to support it. Id.

                                        Analysis

      Relying on State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), the
State argues that the trial court abused its discretion by granting appellee’s motion
for new trial because (1) appellee “failed to show any serious flaw in her trial that
adversely affected her substantial rights to a fair trial;” and (2) “[t]he trial court’s
statement, ‘I questioned the case at the time of trial; and so, I am going to grant a
                                           5
new trial in the interest of justice,” expresses an invalid reason to grant a new trial.

      We begin our analysis by addressing whether the trial court abused its
discretion by granting appellee a new trial in the interest of justice as it stated at the
March 21, 2011 hearing.

I.    Motion for New Trial in the Interest of Justice

      Texas courts consistently have held that a trial court has authority to grant a
new trial “in the interest of justice” and that the trial court’s decision to grant or
deny a defendant’s motion for new trial is reviewed only for an abuse of discretion.
See Herndon, 215 S.W.3d at 906. But that discretion is not unbounded; “justice”
means in accordance with the law. See id. at 907. A trial court does not have
authority to grant a new trial unless the first proceeding was not in accordance with
the law. Id. It cannot grant a new trial on mere sympathy, an inarticulate hunch, or
simply because it personally believes that the defendant is innocent or “received a
raw deal.” Id. On the other hand, a trial court is not limited to the mandatory new
trial grounds listed in Rule 21.3 because that list is illustrative, not exclusive, and a
trial court may grant a motion for new trial on other legal grounds as well. See id.

      As a general rule, a trial court does not abuse its discretion in granting a
motion for new trial in the interest of justice if the defendant (1) articulated a valid
legal claim in his motion, (2) produced evidence or pointed to evidence in the trial
record that substantiated his legal claim, and (3) showed prejudice to his
substantial rights under the rules of appellate procedure. Id. at 909; Moreno, 297
S.W.3d at 522; see Tex. R. App. P. 44.2. The defendant need not establish
reversible error as a matter of law before the trial court may exercise its discretion
in granting a motion for new trial. Herndon, 215 S.W.3d at 909. But a trial court
does not have the discretion to grant a new trial unless the defendant demonstrates
that his first trial was seriously flawed and that the flaws adversely affected his
                                            6
substantial rights to a fair trial. Id.

       Appellee’s first ground in the motion for new trial states: “In the interest of
justice this conviction and sentence should be reviewed and new trial granted by
this Honorable Court.” The State argues on appeal that appellee’s first ground is
merely a conclusory statement “unsupported by specific facts or legal argument”
that does not “identify any serious flaw in the trial or in what way those flaws, if
any, adversely affected Appellee’s substantial rights to a fair trial.” The State also
argues that the trial court’s statement that it questioned the case at the time of trial
constitutes a legally invalid reason to grant a new trial in the interest of justice.

       Appellee responds that the trial court acted within its discretion by granting
her motion for new trial because she met the three prongs set out in Herndon. She
argues that her request for a new trial “premised ‘in the interest of justice’”
provides a valid legal claim. She argues that her ”interest of justice” ground is
based on insufficiency of the evidence to support the verdict and improper remarks
the State made during its opening statement. According to appellee, “if there is
error on the record of the trial, such as an improper remark by the prosecutor or
insufficiency of evidence, the grounds ‘in the interest of justice” are sufficient to
point to such an error without greater specificity or evidence required because the
trial judge is aware of the foregoing proceedings to the extent that he could identify
error without having to produce evidence.” Appellee further claims she showed
that her substantial rights were affected because insufficient evidence to support a
conviction “would have an impact of constitutional magnitude” and “improper
argument by the State during opening statement could have been so burdensome to
the defense that it caused this type of harm.”

       Appellee claims that the trial court’s statement that it questioned the case at
the time of trial meant that it questioned the trial “because [it] felt evidence was

                                            7
insufficient to support the verdict or there were so many flaws in the record that
affected Appellee’s substantive rights.” According to appellee, the “case was
replete with issues the trial judge could have seen as causing a problem with
sufficiency of the evidence.” In particular, appellee contends the “trial judge could
have easily found that the officer was not credible and that there was not sufficient
evidence to convict Appellee for theft.”

      We address whether the trial court abused its discretion by granting appellee
a new trial in the interest of justice in light of appellee’s acknowledgement that her
request for a new trial “in the interest of justice” rests upon an assertion that (1) the
evidence is insufficient; and (2) the State made improper remarks during opening
statement.

      When deciding a motion for new trial challenging the legal sufficiency of
the evidence, the trial court applies the appellate legal sufficiency standard of
review. Moreno, 297 S.W.3d at 520 (citing State v. Provost, 205 S.W.3d 561, 567
(Tex. App.—Houston [14th Dist.] 2006, no pet.)). Thus, the trial court, viewing
the evidence in the light most favorable to the verdict, must determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Id. When reviewing the evidence, the trial court may not sit as
the thirteenth juror and may not substitute its beliefs for those of the jury. Id. If
the evidence meets this standard, the trial court has abused its discretion in
granting the motion for new trial. Id.

      As applicable in this case, a person commits theft if he unlawfully
appropriates property, namely an iPad valued at $500 or more but less than $1,500,
with the intent to deprive the owner of property. See Tex. Penal Code Ann. §
31.03(a), (e)(3) (Vernon Supp. 2012).

      At the guilt-innocence phase of trial, complainant testified that she went to
                                           8
the National Tire and Battery (“NTB”) store in Stafford, Fort Bend County on
August 8, 2011 to take care of a car tire problem. While complainant was waiting
by a display of boxes located in front of the service desk of the general sales area
to speak to the store manager, Sal Nunez, she put her iPad2 on the display and read
a newspaper. When Nunez called complainant, she walked a few steps to the
service desk to talk to him. Complainant did not realize at the time that she had
left her iPad on the display. Complainant testified that a woman walked up behind
her and was “rather aggressive about needing to check out and needing to be taken
care of right at the moment, but the store manager very kindly said that he . . .
would get with her as soon as possible.” Complainant later realized that her iPad
was missing, and informed Nunez. Although complainant remembered bringing
her iPad with her, she checked her car to make sure it was not there. Complainant
and Nunez watched the store’s surveillance video, which showed appellee taking
the iPad from the display. Nunez found the contact information of the person they
saw take the iPad. Complainant identified appellee in the courtroom as the person
she saw taking her iPad on the video.

        Nunez testified that he was talking to complainant at the service desk when
appellee approached the service desk and asked for “someone to please hurry up
and get her rung out.” Nunez testified that he looked up at appellee and he and
another employee told appellee that they would take care of her shortly. When
Nunez finished writing complainant’s work order, she informed him that someone
had stolen her iPad and that she was sure she had left it on the display.
Complainant also looked in her car but could not find the iPad.                           Nunez and
complainant then watched the store’s surveillance video. Nunez testified that the
video shows: (1) complainant placing her iPad on the display and reading a
        2
         Complainant testified that she purchased the iPad; a receipt introduced into evidence showed the
iPad and case cost $723.11.

                                                   9
newspaper; (2) complainant talking to Nunez; (3) appellee attempting to conceal
complainant’s iPad by placing something that looked like a magazine over the
iPad, looking around, and then putting the iPad in appellee’s purse; (4) appellee
interrupting Nunez’s conversation with complainant and asking for her keys; and
(5) Nunez looking up and letting appellee “know we will be right with her.”

      Nunez testified that after he and complainant reviewed the video, he
recognized appellee and found her information. He called appellee to give her an
opportunity to return the iPad and asked her if “she had possibly accidentally
picked up an iPad.” Appellee replied that she did not have the iPad. Nunez
testified that appellee did not tell him during their telephone conversation that she
also owned an iPad. Nunez ended the conversation by informing appellee that “the
video did indicate that she might have picked it up and that if it wasn’t returned,
we would have to call Stafford P.D.” Nunez testified that appellee called the store
10 or 15 minutes later and told another store employee that she had picked up the
iPad; she had an iPad with the same case; and she would bring the iPad to the
store. Nunez had called the police in the meantime. Police Officer Flagg arrived
about 20 to 30 minutes later, reviewed the video, and contacted appellee. Appellee
later arrived at the store with two iPads; Nunez could not tell a difference between
the two iPads.

      Officer Flagg testified that when he arrived at the store after receiving a call
concerning a theft, he met with complainant who told him that her iPad had been
stolen and that Nunez could provide “video footage of the theft.” Nunez then
showed Flagg the video and told Flagg that he had contacted appellee. Flagg
contacted appellee to inquire if she intended to come to the store, and appellee
arrived about 10 to 15 minutes later. Flagg testified that appellee gave him two
iPads that appeared to be identical; appellee told him that “she had mistakenly

                                         10
taken one [iPad] from inside the lobby.” Flagg offered to show appellee the video
but she said “she did not need to” watch it. Flagg testified that he then arrested her
for theft based on the video showing that appellee “approach[ed] the iPad. She
looked in all directions and then she placed a magazine over the iPad, concealing
the item and she put both items in her purse and went to the front counter . . .
trying to get someone’s attention to get the keys.”

        The video played at trial showed the following sequence of events.
Complainant walked from the display to the service desk to talk to Nunez and left
her iPad on the display. Shortly thereafter, appellee walked into the sales area
while talking on her cell phone and carrying a large purse and something that
looked like a magazine or book3 tucked under her arm. She walked around the
display and stopped at the left side of the display, almost passing the iPad on the
display. Appellee looked to the front in the direction of the store employees at the
service desks. She took the book from under her arm and tucked her cell phone
between her ear and shoulder. She then took a step back; turned toward the iPad;
was about to place the book on top of the iPad but picked the book back up; looked
to the side and the back of the store; put the book on top of the iPad; and picked the
book up together with the iPad and placed both items together in her large purse.
Appellee then took a few steps past the display toward the front desk and stood
behind complainant, who was still at the front desk talking to Nunez. Appellee,
who still was holding her cell phone, turned around and looked to the side and
back of the store. She then turned back toward the front desk, raised her left hand
while holding her cell phone with her right hand and seemingly addressed Nunez
and another employee at the front desk. Appellee continued walking back and forth

        3
         Based on the video, the item appellee had tucked under her arm looked like a magazine or a
book. We will refer to the item as being a book because it is irrelevant to the disposition of this case
whether the item was indeed a book or a magazine.

                                                  11
behind complainant.

      Appellee also testified at trial. She stated she had a full agenda the day she
came to the NTB store. Besides getting her truck serviced, she had to change
rooms at the school she worked and had to get a power of attorney that day. She
testified that she left the house with her purse, in which she had her cell phone,
book, and iPad.     At the NTB store, the employee could not find appellee’s
information, so she went to her truck to look for paperwork. Appellee returned to
the waiting room, read her book, and talked to her son on the cell phone regarding
a power of attorney. When she could not find her iPad in her purse, she assumed it
was in her truck because she remembered having it in the morning. Appellee
testified that she left the waiting area and went into the sales area after an
employee tapped on the window and held her keys up. She testified that she
noticed an iPad as she walked into the sales area, assumed it was her iPad because
it looked just like hers, and put the iPad in her purse. Appellee stated that she
thereafter waited in line for an employee to print her “receipt, signed it, and left.”

      Appellee denied noticing complainant standing in front of her at the service
desk; she also denied trying to get Nunez’s attention or telling someone that she
was in a hurry or “ready to go.” Appellee stated that she did not immediately look
for her iPad when she arrived home but went to her “laptop to pull up the power of
attorney.” About ten minutes after she came home, she received a call from an
NTB employee who “made a reference to something being taken.” Appellee
testified that she told the employee she “didn’t take anything.” Appellee stated
that near the end of the telephone conversation the employee “mentioned an iPad”
and that she told the employee that she had her iPad.

      After she hung up, she pulled out the iPad from her purse, turned it on, and
noticed that the iPad had a different screensaver. She went to her truck and found

                                           12
her iPad under the passenger seat. According to appellee, she realized “at that
point” she had taken somebody else’s iPad. She called the store and told an
employee that she had two iPads and that she would return one.                    She
acknowledged she did not immediately drive to the store but waited for a power of
attorney so she could get it notarized and the iPad returned “in one trip.” When
she arrived at the store, she showed Flagg two iPads and told him that she had
made a mistake. According to appellee, Flagg mentioned the surveillance video
and told her she “needed to look at the video.” She responded that she did not
need to look at the video because she “didn’t feel [she] did anything wrong.”

      Appellee testified she did not realize she was accused of stealing until Flagg
arrested her. Appellee stated that she did not think she concealed the iPad. She
also stated that she did not look around but “looked at [her] truck that was
immediately out the front door.”           Appellee denied interrupting Nunez’s
conversation with complainant; she stated she “kind of motioned for [her] keys.
That was basically it.” She acknowledged that Nunez told her someone will assist
her shortly.

      Applying the appropriate standards of review, we conclude that when the
evidence is viewed in the light most favorable to the verdict, there is legally
sufficient evidence from which a rational jury could have found the essential
elements of the offense beyond a reasonable doubt. The jury is the exclusive judge
of the credibility of the witnesses and the weight of the evidence. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In reviewing appellee’s motion, the
trial court had to presume that the jury resolved any conflicts in the evidence in
favor of the verdict. See Moreno, 297 S.W.3d at 522 (citing Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993)). Therefore, the trial court abused its
discretion to the extent it granted appellee’s motion for new trial in the interest of

                                         13
justice based on legally insufficient evidence.

       We next consider whether the trial court acted within its discretion by
granting appellee’s motion in the interest of justice because “the State improperly
anticipated a defense.”

       Appellee argues that the State anticipated a defense and that this was “an
example of prosecutorial misconduct as it is contrary to the presumption of
innocence and unfairly shifts the burden of proof from the State to the defendant”
in violation of article 38.03 of the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2012). According to appellee,
“improper argument by the State during opening statement could have been so
burdensome to the defense that it caused” harm.

       Article 38.03 provides: “All persons are presumed to be innocent and no
person may be convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt.       The fact that he has been arrested, confined, or
indicted for, or otherwise charged with, the offense gives rise to no inference of
guilt at his trial.”

       Contrary to appellee’s assertion, nothing in the State’s opening statement
establishes improper argument or prosecutorial misconduct. At some point during
its opening statement, the State remarked: “I anticipate that the Defense is going to
tell you that there was a mistake, and that I want you to remember that actions
speak louder than words.” Nothing in this statement or any other statement made
by the State during trial purports to shift the burden of proof in violation of article
38.03 or otherwise. Further, appellee did not object to the State’s statement;
instead, appellee herself argued several times in her opening statement that taking
the iPad was “a mistake.”


                                          14
      Therefore, we conclude that the trial court abused its discretion to the extent
it granted appellee’s motion for new trial in the interest of justice because “the
State improperly anticipated a defense” during its opening statement.

      Although the trial court specifically stated that it granted appellee’s motion
for new trial in the interest of justice and not on any other grounds listed in her
motion, we will nevertheless uphold the trial court’s judgment if any appropriate
ground exists to support it. See Provost v. State, 205 S.W.3d 561, 566 (Tex.
App.—Houston [14th Dist.] 2006, no pet.).           Thus, we also must address the
grounds raised in appellee’s motion for new trial even though it is apparent the trial
court did not grant a new trial on those grounds.

II.   Motion for New Trial based on Rule 21.3(b) and (h)

      The second ground in appellee’s motion for new trial states that the trial
court should grant a motion for new trial because the “verdict was contrary to the
law and justice under TRAP 21.3 (b) and (h).” The State argues that the second
ground in appellee’s motion for new trial is a conclusory statement “unsupported
by specific facts or legal argument” and does not identify any serious flaw in the
trial. Appellee responds that the claim that the ‘verdict was contrary to the law and
justice’ should be construed to be a challenge to the sufficiency of evidence.”

      An argument under Rule 21.3(h) is essentially one of sufficiency; we already
have concluded that the evidence in this case was legally sufficient to support the
jury’s verdict, and that the trial court abused its discretion to the extent it granted
appellee’s motion for new trial on the basis that the evidence was insufficient to
support the verdict of the jury.

      Rule 21.3(b) provides that a defendant must be granted a new trial “when the
court has misdirected the jury about the law or has committed some other material


                                          15
error likely to injure the defendant’s rights.” Appellee does no more than reference
Rule 21.3(b) in her motion for new trial. There is nothing in appellee’s motion or
in the record in general to support granting a new trial on the basis that the trial
court “misdirected the jury about the law or has committed some other material
error.”

       Accordingly, we conclude that it would have been an abuse of discretion for
the trial court to grant appellee a new trial on the second ground stated in
appellee’s motion.

III.   Motion for New Trial based on Rule 21.3(c), (g), and (h)

       The third ground in appellee’s motion states: “The verdict was not the free,
full, and voluntary true verdict of all members under TRAP 21.3 (c), (g) and (h).4
One of the jurors, Deborah Simpson, was seen in tears and broke down and fled the
court room after the verdict was read. That juror was apparently the lone holdout
at one point and it is clear from the jury notes and questions sent to the court that
her verdict was the product of coercion by the other jurors and not her true and fair
opinion.”

       The State argues that “[a]ppellee’s third reason for granting a new trial was
not verified and was presented without affidavit in support of the factual assertions
therein,” and thus “the trial court had no discretion to grant Appellee’s motion on
her third allegation.” Appellee does not respond or otherwise mention this third
ground in her appellate brief.

       Rule 21.3(c) requires a trial court to grant a motion for new trial “when the
verdict has been decided by lot or in any manner other than a fair expression of the
jurors’ opinion.” Rule 21.3(g) requires a trial court to grant a motion for new trial

       4
           We already have addressed arguments relating to Rule 21.3(h) in section II of the opinion.

                                                     16
“when the jury has engaged in such misconduct that the defendant did not receive a
fair and impartial trial.” To demonstrate jury misconduct, the defendant must
show that (1) the misconduct occurred and (2) the misconduct resulted in harm to
the movant. Thomas v. State, 352 S.W.3d 95, 102 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d); Gomez v. State, 991 S.W.2d 870, 871 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d).

      When the grounds for new trial are outside of the record, the motion for new
trial must be supported by defendant’s affidavit or by the affidavit of someone else
specifically showing the truth of the grounds of attack. Bearden v. State, 648
S.W.2d 688, 690 (Tex. Crim. App. 1983). “Certainly if the motion for new trial
alleging jury misconduct is not verified and no affidavits are filed to support it, the
trial court is justified in overruling the motion.” Id. at 691. “A motion for new
trial which alleges, inter alia, jury misconduct ‘must be supported by the affidavit
of a juror or some other person who was in a position to know the facts, or must
state some reason or excuse for failing to produce the affidavits.’” McIntire v.
State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (quoting Dugard v. State, 688
S.W.2d 524, 528 (Tex. Crim. App. 1985), overruled on other grounds by Williams
v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989)).

      Appellee provided no evidence to support the allegations in her motion that
juror Deborah Simpson (1) was seen in tears, broke down, and fleeing the court
room after the verdict was read; and (2) was “the lone holdout at one point” and
that “her verdict was the product of coercion by the other jurors and not her true
and fair opinion.”    Further, the record before us does not support appellee’s
allegations.

      The record establishes that, after the jury started deliberating, it asked to
have certain testimony read back indicating there is a disagreement regarding the

                                          17
testimony. The jury then stated that “[t]hey got a hung jury,” and the trial court
gave an Allen5 charge to which Appellee and the State agreed. Later, the jury
returned a unanimous “guilty” verdict. Appellee’s attorney asked to have the jury
polled, and each juror affirmed a verdict of “guilty” on the record. The trial court
released the jurors, advising them that they could choose to speak to the attorneys
involved in the case or could chose to leave without speaking to the attorneys.

      Additionally, the State attached the trial prosecutor’s affidavit to its motion
to set aside the order granting appellee’s motion for new trial; appellee did not
object to the affidavit at the hearing on the motion to set aside or otherwise. The
trial prosecutor’s affidavit stated as follows:

            Defendant, Stephanie Sanders, was convicted by a jury on
      February 1, 2012. The verdict was returned late in the evening at
      about 8:00 p.m. The jury was polled and each juror stated that the
      verdict of guilty was his or her verdict.
             After the verdict was rendered, the jurors were released by
      Judge Childers and told that the attorneys may want to speak to them,
      but that they (jurors) did not have any obligation to speak with the
      attorneys. The jurors then left the jury box, exited through the back of
      the courtroom and were told to wait in the deliberation room to be
      release[d] by the Judge. I did not witness any juror flee the courtroom
      after the verdict was read. Defendant’s trial attorney, Juanita Barner
      decided to go out to the main hallway to try and speak with the jurors
      about the case once they were released. I accompanied her. The
      defendant, Stephanie Sanders, and my co-counsel, Andrew Herreth,
      stayed in the courtroom. Four of the jurors remained to speak with us
      outside in the hallway. Two of the jurors indicated they wanted to go
      home (presumably due to the late hour) and left. None of the jurors
      appeared emotionally upset or in tears.
After reviewing the record under the applicable standard of review, we conclude
that it would have been an abuse of discretion for the trial court to grant appellee a


      5
          Allen v. United States, 164 U.S. 492, 501 (1896).

                                                    18
new trial on the third ground stated in appellee’s motion.6

                                           Conclusion

       Having concluded that the trial court abused its discretion by granting
appellee’s motion for new trial, we reverse the trial court’s order granting a new
trial, and we remand this cause with instructions to reinstate the judgment of
conviction and the sentence for appellee.




                                              /s/    William J. Boyce
                                                     Justice



Panel consists of Justices Boyce, McCally and Mirabal.7
Do Not Publish — TEX. R. APP. P. 47.2(b).




       6
          In light of appellee’s request to read her motion for new trial as challenging the
sufficiency of the evidence and the propriety of the State’s opening argument, her contention that
the State failed to “sufficiently develop the record to show abuse of discretion” by not asking for
“more specific findings of fact and conclusions of law at the time the judge issued them” is
without merit. Sufficiency of the evidence and improper argument challenges are determinable
from the trial court record. Cf. Mizell v. State, 70 S.W.3d 156, 162, aff’d, 119 S.W.3d 804 (Tex.
Crim. App. 2003). Therefore, more specific findings and conclusions were not necessary in
order to determine whether the trial court abused its discretion by granting her motion.

       7
           Senior Justice Margaret Garner Mirabal sitting by assignment.

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