                                                                                     ACCEPTED
                                                                                  13-14-00728-cr
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                             5/6/2015 6:06:12 PM
                                                                              DORIAN RAMIREZ
                                                                                          CLERK

                           NO. 13-14-00728-CR

                       IN THE COURT OF APPEALS         FILED IN
                                               13th COURT OF APPEALS
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                              FOR THE
                                                5/6/2015 6:06:12 PM
                                                 DORIAN E. RAMIREZ
              THIRTEENTH    COURT OF APPEALS DISTRICT   Clerk

                                OF TEXAS

                        NUECES COUNTY, TEXAS

                           QUINTON MOODY,

                                Appellant

                                   VS.

                          THE STATE OF TEXAS,

                                Appellee

                   Trial Cause No. 2013-CR-9347

                 Appeal form the 399th District Court

                          Bexar County, Texas

                       Hon. Ray Olivarri, Presiding

                           APPELLANT’S BRIEF



                                 Mario A. Trevino
                                 Attorney for Appellant
ORAL ARGUMENT WAIVED             315 S. Main, San Antonio, Texas 78204
                                 210-226-0026
                                 210-226-8402 fax
                                 trevinomtrev@aol.com
                                 Bar No. 20211250


                                                                             1
                              Identity of the Parties

   1. Quinton Moody, TDCJ # 01965382, Garza East Transfer Facility, 4304

      Highway 202, Beeville, Texas 78102. Appellant

   2. The State of Texas, by and through the Bexar County District Attorney’s

      Office, Paul Elizondo Tower, 101 W. Nueva, San Antonio, Texas 78205, is

      the appellee and prosecuted this case in the trial court.

   The trial attorneys were as follows:

   1. Quinton Moody was represented by Ronald A. Ortman, SBN 15324407,

      Post Office Box 90611, Texas 78209.

      Jesus Lopez, SBN 2042579, 215 N. San Marcos, San Antonio, Texas 78205

   2. The State of Texas was represented by Susan D. Reed, District Attorney,

      Jessica Lee Frazier, SBN 24057854 and Daniel Walker, SBN 24070810,

      Assistant District Attorneys, Paul Elizondo Tower, 101 W. Nueva, San

      Antonio, Texas 78205.

The appellate attorneys are as follows:

   1. Quinton Moody is represented by Mario A. Trevino, SBN 20211250, 315 S.

      Main, San Antonio, Texas 78204.




                                                                                2
2. The State of Texas is represented by the Bexar County District Attorney’s

   Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva, Suite 370,

   San Antonio, Texas 78205




                                                                               3
                                   Table of Contents

Identity of Parties ………………………………………………………………………... 2

Table of Contents…… …………………………………………………….……………… 4

Index of Authorities………………………………………………………………………. 5

Statement of the Case…. ……………………………………………………………….. 6

Statement Regarding Oral Argument……………………………………………… 7

Issues Presented…….. ……………………………………………………………………… 8

Issue #1: The trial court abused its discretion by denying appellant’s motion for
mistrial made because of an unauthorized conversation between a juror and the
bailiff about the case on trial and while the jury was deliberating.
Issue #2: The trial court abused its discretion by denying appellant’s motion for
new trial filed because of an unauthorized conversation between a juror and the
bailiff about the case on trial and while the jury was deliberating.
Statement of the Facts …………………………………………………………..…………… 9

Summary of the Argument…………………………………………………………………… 13

Argument: Issue #1 …………………………………………..………………………. 15
          Issue #2 …………………………………………………………………… 18
Prayer……………………………………………………………………………………………….…. 20

Certificate of Service…………………………………………………………………………… 21

Word Count…………………………………………………………………………………………. 21




                                                                                    4
Index of Authorities
Cases

1. Allen v. United States, 164 U.S. 492 (1896)……….. 17

2. Alexander v. State, 919 S.W.2d 756 (Tex. App. Texarkana 1992, no pet.)…16

3. Chairs v. State, 878 S.W. 2d 250, 253 (Tex. App. – Corpus Christi 1994, no
pet.)………………………………………………………………………………………..……. 16

4. Colyer v. State, 428 S.W. 3d 117, 122 ( Tex. Crim. App. 2014)….. 18

5. Granados v. State, 85 S.W. 3d 217, 235 (Tex. Crim. App. 2002)… 16, 19

6. Green v. State, 840 S.W. 2d 394, 406 (Tex. Crim. App. 1992) ……… 16

7. Hawkins v. State, 135 S.W. 3d 72, 76-77 (Tex. Crim. App. 2004)…… 15, 18

8. Holden v. State, 201 S.W. 3d 761, 763 (Tex. Crim. App. 2006)….. 15, 18

9. Okonkwo v. State, 398 S.W. 3d 689, 694 (Tex. Crim. App. 2013)… 18

10. Salazar v. State 38 S.W. 3d 141, 148 ( Tex. Crim. App. 2001)…. 18


11. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App.2007)… 15, 18


Statutes

Tex. Code Crim. Proc. Ann. 36.14 …………………………………………… 17, 20

Tex. Code Crim. Proc. Ann. 36.22 …………………………………………. 16, 17, 20

Tex. Code Crim. Proc. Ann. 36.27 ……………………………………… 17, 20

Rules

Texas Rules of Appellate Procedure 21.3(f)…………………. 17, 19




                                                                                5
To the Honorable Justices of the Court of Appeals:

      Appellant Quinton Moody submits this Brief in support of his appeal.

                               Statement of the Case

This is an appeal of a Judgment and Sentence for Retaliation- Habitual in cause

number 2013-CR-9347 in District Court Number 399 of Bexar County Texas. In its

Indictment, the State alleged that on or about May 18, 2013, in Bexar County,

Texas, Appellant committed the offense of Retaliation. The Indictment included

two Enhancement paragraphs. CR. 15. To the allegations in the Indictment,

Appellant pleaded “not guilty”. RR3. 12. Appellant elected to have the Jury assess

punishment. CR. 120. A trial was had before a jury. CR. 204 - 205.


On, November 3, 2014, Appellant was convicted of Retaliation as charged in the

Indictment. RR5. 1; CR. 150. On November 4, 2014, the Jury found both

enhancement paragraphs “True” and sentenced Appellant to 30 years in the

Texas Department of Criminal Justice Institutional Division. CR. 164, 166. On

November 4, 2014, the trial court signed a Certification of Defendant’s Right of

Appeal, certifying that this is a criminal case and that Appellant has the right of

appeal. CR. 165.




                                                                                      6
On November 7, 2014 Appellant filed a Motion for New Trial. CR. 169. The

Motion for New Trial was denied on November 10, 2014 without a hearing. CR.

186.


On November 21, 2014, Appellant filed a timely notice of appeal. CR. 189.




Statement Regarding Oral Argument
Appellant does not request oral argument. Appellant believes that the facts and

legal arguments are adequately presented in this Brief.




                                                                                  7
                                  Issues Presented


Issue One: The trial court abused its discretion by denying appellant’s motion for

mistrial made because of an unauthorized conversation between a juror and the

bailiff about the case on trial and while the jury was deliberating.


Issue Two: The trial court abused its discretion by denying appellant’s motion for

new trial filed because of an unauthorized conversation between a juror and the

bailiff about the case on trial and while the jury was deliberating.




.




                                                                                  8
                                Statement of Facts
      Bexar County Sheriff’s Deputy Officer Carl Davis was dispatched to a family

disturbance on the evening of May 18th , 2013. RR3, 28. The disturbance involved

a threat with a knife by a light skinned black male wearing a black shirt with white

lettering, short and about 5’7”. RR3, 29. When Deputy Davis arrived at the

location of the disturbance the suspect was no longer there. RR3, 30. Deputy

Davis went looking for the suspect. RR3, 30. While Deputy Davis is sitting in his

police car across the street from a convenience store waiting to see if the suspect

walks by he noticed appellant walking across the street. Deputy Davis recognized

appellant to be a possible match to the person he is looking for. RR3, 31-33. He

approached appellant and handcuffed and detained him in order to determine if

he is the suspect. Deputy Davis put appellant in the back of the patrol car. RR3,

34-35. The appellant did not have an I.D. and became belligerent and upset. RR3,

37-38. The Deputy then verified appellant’s identification and realized that he is

not the suspect he was looking for. He removed the appellant’s handcuffs and

told him he was free to go. RR3, 39. Appellant had been detained for about two

to three minutes. RR3, 39-40. Instead of leaving the area appellant began to

argue with and berate Deputy Davis and stated that he is “old school mafia”. RR3,

40. Appellant continues to be upset and opens up the backdoor of the patrol car


                                                                                     9
and tells the Deputy to take him to jail. RR3, 43. In response the Deputy puts the

handcuffs on appellant again and places him in the vehicle to calm down. RR3, 40.

A few minutes later the Deputy releases appellant again and tells him to leave.

RR3, 45. Appellant walks to a nearby store and begins to challenge the Deputy to

a fight. He then begins to walk back towards the Deputy with his hands in a fist

and an aggressive manner. RR3, 45. The Deputy is of the opinion that appellant is

threatening to harm him so he arrests appellant for retaliation and places him in

the patrol car. RR3, 46-47. As Deputy Davis is transporting appellant to the jail

appellant said that when he gets out of jail he will make sure that Deputy Davis’

wife would be pushing up daisies. RR3, 50. Deputy Davis perceived this as a

threat to his family. RR3, 51.


Appellant testified that he and his wife were coming out of the convenience store

with groceries in his hand when he was told by Deputy Davis to turn around and

place his hands behind his back. RR3, 76. He was taken to the patrol vehicle and

was not told why he was being arrested. Appellant stated that he was irritated by

this but denied being physically aggressive towards the Deputy. RR3, 78.




                                                                                    10
Appellant gave the Deputy his name and date of birth. His identity was confirmed

and he had no active warrants. RR3, 78. Appellant made no threats to the

Deputy. RR3, 78-79.


The jury chose to believe the Deputy and found appellant guilty of retaliation.

RR5, 1.


Prior to the beginning of the punishment phase of trial, defense counsel made a

motion for mistrial and an oral offer of proof in support. RR6, 5-8. The motion for

mistrial was based on an unauthorized conversation the bailiff had with the jury.

Defense counsel proffered that the bailiff said the jury had asked what happens if

they are split 11 to 1 and they cannot reach a decision. The bailiff told the jury

that they may continue to deliberate or in the alternative will be sequestered.

The bailiff explained that sequestered means they would be held overnight and

perhaps longer. Defense counsel argued that no person is authorized to converse

with a juror about the case outside of the court and without the permission of the

court and that the question should have been in writing and answered by the

court as mandated in the Charge of the Court not the bailiff. The trial court

denied the motion for mistrial. RR6, 5-10.




                                                                                     11
At the conclusion of the punishment phase of trial the jury assessed a 30 year

term in prison. RR6, 105. Defense counsel filed a motion for new trial alleging

the same jury communication with the bailiff as the grounds for granting the

motion. The trial judge denied the motion for new trial without a hearing. CR,

169-187.




                                                                                  12
                            Summary of the Argument

Appellant presents the following argument in this Brief: The bailiff’s

communication with the jury about the possibility of sequester violated articles

36.14, 36.22, and 36.27 of the Texas Code of Criminal Procedure and pursuant to

Rule 21.3(f) Texas Rules of Appellate Procedure the trial court abused its

discretion when it failed to grant defense counsel’s motions for mistrial and new

trial. When anyone outside of the court makes an unauthorized communication

with a juror about the case on trial a presumption of injury arises. Defense

counsel established that a communication occurred between a juror and

someone else, in this case the bailiff; that the communication involved the case at

trial and that it consisted of more than insignificant, unrelated comment or

exchange. Once appellant offered evidence that there was an unauthorized

communication with a juror about the case on trial - in the present case the

evidence amounted to an offer of proof which was accepted by the court - the

State bears the burden of overcoming the presumption of harm. The statement

by defense counsel went beyond establishing that there was a communication

concerning the case, it also detailed the contents of the conversation, to wit:


“The bailiff came out. I watched him as he came out from back behind the judge,
and I looked at his hands to see if he had any notes in his hands. He did not. He
came over and approached us, the defense and the State simultaneously, and he

                                                                                   13
said, the jury has asked a question about what happens if they are split 11 to l and
they cannot reach a decision. And so the bailiff then told us at that point he told
the jury you may continue to deliberate or in the alternative, ugly word, and this a
quote from the bailiff , sequester. And then they asked, What is that? And he
told them that, you could be held here to decide the case if you’re not able to
decide it right now. Meaning that they could be held overnight, perhaps longer.
And we think at that point in time that close to the end of the day, 3:30, 4 o’clock
in the afternoon, that this put the jury under excruciating pressure to settle the
case right then and there.” RR6, 8-9.
The unauthorized communication between the jury and the bailiff occurred at a

crucial time. The jury was split and had not been able to reach a verdict. The

State elected to present no evidence and failed to rebut the presumption of

harm.




                                                                                  14
                                       Argument


Issue One: The trial court abused its discretion by denying appellant’s motion for

mistrial made because of an unauthorized conversation between a juror and the

bailiff about the case on trial and while the jury was deliberating.


A trial court’s ruling on a motion for mistrial is not to be disturbed on appeal

absent a showing of abuse of discretion. When the alleged error is the trial

court’s refusal to grant a motion for mistrial review is limited to whether the trial

court abused its discretion. Hawkins v. State, 135 S.W. 3d. 72, 76-77 (Tex. Crim.

App. 2004)


Under this standard, the evidence is reviewed in the light most favorable to the

trial court’s ruling and uphold the trial court’s ruling if it is within the zone of

disagreement. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App. 2007). On

appeal, the appellate court does not substitute its judgment for that of the trial

court, but instead considers whether the trial court’s decision was arbitrary or

unreasonable. Holden v. State, 201 S.W. 3d. 761, 763 ( Tex. Crim. App. 2006).


The complaining party must establish that a communication occurred between a

juror and someone else, that the communication involved the specific case at

trial, and that it consisted of more than an insignificant, unrelated comment or

                                                                                       15
exchange. Once it has been shown that an unauthorized communication with a

juror about the case on trial occurred, a presumption of injury arises. Green v.

State, 840 S.W. 2d 394, 406 (Tex. Crim. App. 1992); Alexander v. State, 919 S. W.

2d. 756 ( Tex. App. Texarkana 1996, no pet.); Chairs v. State, 878 S.W.2d 250, 253

(Tex. App. – Corpus Christi 1994, no pet.). Once the defendant has offered

evidence that there was an unauthorized communication with a juror about the

case on trial, then the State bears the burden of overcoming the presumption of

harm. Green v. State, 840 S.W. 2d at 406; Alexander v. State, 919 S.W.2d at767.


In deciding the issue raised in the motion for mistrial, the court relied on an offer

of proof by defense counsel which was accepted and considered by the trial

court. RR6, 5-10. The offer of proof went beyond establishing that there was a

communication concerning the case, it also detailed the contents of the

conversation.


It is undisputed that a conversation occurred between a juror and the bailiff and

that the communication involved the specific case at trial. A juror must make

decisions at the guilt and punishment phases using information obtained in the

courtroom: the law, the evidence, and the trial court’s mandates. Granados v.

State, 85 S.W. 3d. 217, 235 ( Tex. Crim. App. 2002). Accordingly, Article 36.22 of


                                                                                     16
the Texas Code of Criminal Procedure prohibits conversing with the jury and in

relevant parts states “ No person shall be permitted to converse with a juror

about the case on trial except in the presence and by the permission of the

court.” Texas Rules of Appellate Procedure 21.3 (f) provides that a defendant

must be granted a new trial when a juror has talked with anyone about the case.


The trial court abused its discretion by failing to grant appellant’s motion for

mistrial for the following reasons. RR6, 10. The uncontroverted evidence

established that the bailiff discussed the case with a juror. The subject matter of

the discussion – sequestration – occurred when the jury was carefully considering

all the relevant evidence. RR6, 9. The bailiff’s mention of the “ sequester” was

functionally an Allen or dynamite charge, thereby violating Article 36.14 of the

Texas Code of Criminal Procedure which requires the trial judge to deliver all jury

charges in writing to the jury. Allen v. United States, 164 U.S. 492 (1896). The

bailiff’s comments in response to the juror’s question violated article 36.27 of the

Texas Code of Criminal Procedure which requires all communications with the

jury to be in writing as well as article 36.22 which prohibits any person to

converse with a juror about the case on trial except in the presence and by the

permission of the court. The State elected to present no evidence and failed to

rebut the presumption of harm.

                                                                                   17
Issue Two: The trial court abused its discretion by denying appellant’s motion for

new trial filed because of an unauthorized conversation between a juror and the

bailiff about the case on trial and while the jury was deliberating.


When the alleged error is the trial court’s refusal to grant a motion for mistrial or

a motion for new trial, review is limited to whether the trial court abused its

discretion. Hawkins v. State, 135 S.W. 3d 72, 76-77 ( Tex. Crim. App. 2004); Salazar

v. State 38 S.W. 3d 141, 148 ( Tex. Crim. App. 2001).


A trial court’s ruling on a motion for new trial is reviewed under an abuse of

discretion standard. Colyer v. State 428 S.W. 3d 117, 122 ( Tex. Crim. App. 2014).


Okonkwo v. State, 398 S.W. 3d 689, 694 (Tex. Crim. App. 2013)


Under this standard, the evidence is reviewed in the light most favorable to the

trial court’s ruling and uphold the trial court’s ruling if it is within the zone of

disagreement. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App. 2007). On

appeal, the appellate court does not substitute its judgment for that of the trial

court, but instead considers whether the trial court’s decision was arbitrary or

unreasonable. Holden v. State, 201 S.W. 3d. 761, 763 ( Tex. Crim. App. 2006).



                                                                                       18
In deciding the issue raised in the motion for new trial, the court relied on the

pleading in the motion which were very similar to the offer of proof which had

been accepted and considered by the trial court at appellant’s motion for mistrial.

CR. 169-187. RR6, 5-10.


It is undisputed that a conversation occurred between a juror and the bailiff and

that the communication involved the specific case at trial. RR6, 5-10. A juror

must make decisions at the guilt and punishment phases using information

obtained in the courtroom: the law, the evidence, and the trial court’s mandates.

Granados v. State, 85 S.W. 3d. 217, 235 ( Tex. Crim. App. 2002). Accordingly,

Article 36.22 of the Texas Code of Criminal Procedure prohibits conversing with

the jury and in relevant parts states “ No person shall be permitted to converse

with a juror about the case on trial except in the presence and by the permission

of the court.” Texas Rules of Appellate Procedure 21.3 (f) provides that a

defendant must be granted a new trial when a juror has talked with anyone about

the case.


The trial court abused its discretion by failing to grant appellant’s motion for new

trial for the following reasons. The uncontroverted evidence established that the

bailiff discussed the case with a juror. RR6, 5-10. The subject matter of the


                                                                                    19
discussion – sequestration – occurred when the jury was carefully considering all

the relevant evidence. RR6, 9. The bailiff’s mention of the “ sequester” was

functionally an Allen or dynamite charge, thereby violating Article 36.14 of the

Texas Code of Criminal Procedure which requires the trial judge to deliver all jury

charges in writing to the jury. The bailiff’s comments in response to the juror’s

question violated article 36.27 of the Texas Code of Criminal Procedure which

requires all communications with the jury to be in writing as well as article 36.22

which prohibits any person to converse with a juror about the case on trial except

in the presence and by the permission of the court. The State elected to present

no evidence and failed to rebut the presumption of harm.


                                       Prayer

For the above reasons, Appellant prays that upon appellate review, this Court

reverse the trial court’s judgment and grant appellant a new trial and remand the

case for further proceedings.




                                                                                    20
                                  Respectfully submitted

                                        /s/Mario A. Trevino
                                        315 S. Main
                                        San Antonio, Texas 78204
                                        (210) 226-0026
                                        (210) 226-8402 fax
                                        trevinomtrev@aol.com
                                        SBN: 20211250
                                        Attorney for Appellant



                               Certificate of Service

      I hereby certify that a true and correct copy of this Brief for Appellant has

been hand-delivered to the Bexar County District Attorney’s Office, Appellate

Division, Paul Elizondo Tower, 101 W. Nueva, San Antonio, Texas; and by email.



                                        /s/Mario A. Trevino
                                        Attorney for Appellant

                                        Word Count

Pursuant to Tex. R. App. P. 9.4(i) (1) and (1)(2)(B), the word count from the

beginning of the Statement of Facts until, but excluding, the signature block is:

3,390. The total word count is 3,515.




                                                                                      21
