             NO 7-/5                                           HO*-1$
                                PD    -    1107    -    15
                                PD    -    1108    -    15
                  NO.
                                                                                 RECEDVED
                                                                             COURT OF CRIMINAL APPEALS
ORIGINAL                              IN    THE

                                                                                  SEP 25 2015
                        COURT   OF    CRIMINAL         APPEALS


                                     OF    TEXAS
                                                                              <mBi Acossa,




                        JAMES    KENNETH          KEELS,       JR.             FILED IN
                                 Petitioner/                            COURT OF CRIMINAL APPEALS
                                          versus



                           THE       STATE    OF       TEXAS
                                 Respondent.                                Abel Acosta, Clerk




 Petition is on Appeal from Cause Nos. C-34828-CR & C-34855-CR in the
            County Court of Law of Navarro County/ Texas,
              Honorable Amanda Putman, Judge Presiding/
   and Nos. 10-14-140-CR & 10-14-141-CR in the Court of Appeals for
                         The Tenth Court               of    Texas




                  PETITION FOR DISCRETIONARY REVIEW




                                                        James Kenneth Keels/         Jr.
                                                        Petitioner Pro se
                                                        Huntsville Unit TDC#1920712
                                                        815      12th   Street
                                                        Huntsville,      TX 77348




                        Oral Argument Not Requested
                                      TABLE      OF-CONTENTS


TABLE OF CONTENTS                     ,:... .^, .;..>.....: ...ii.. ••                       •..     j_

NAMES   OF    ALL    PARTIES- ........ • •                                                          ii


TABLE   OF    AUTHORITIES- • •                                               •••         •     -ill


STATEMENT REGARDING            ORAL      ARGUMENT                                                    1

STATEMENT OF         THE   CASE                          •                                           1


STATEMENT OF         PROCEDURAL       HISTORY- •'                                   ••               1


GROUNDS      FOR    REVIEW                                                                           1

      1. The Tenth Court of Appeals erred when it found the
         trial court did not abuse it's discretion in disallowing
         evidence of juror misconduct.         ••                 1

REASONS    FOR     REVIEW                                                                •          1


       1. The Tenth Court of Appeals has decided an important
          question of State and Federal law that has not been,
           but should be,           settled by the Court of Criminal Appeals

       2. The Tenth Court of Appeals appears to have misconstrued
           the rules of evidence and the code of criminal procedure.

       3. The decision of the Tenth Court of Appeals so far deviates
          from the fair administration of justice that the Court
          of Criminal Appeals correction is required.
          Texas Rules of Appellate Procedure 66.3



STATEMENT OF FACTS                                                                                      2

INTRODUCTION                 •• '                                                                       3

ARGUMENTS AND AUTHORITIES • •• •                                                                    .4

THE   TRIAL    COURTS      ABUSE    OF    DISCRETION                         .' •
        AND THE TENTH COURT OF APPEALS MISUNDERSTANDING •                                               5

JURORS INCAPABLE OR UNFIT TO SERVE* ••                                                               7

CONCLUSION                                                                                     •.    8

PRAYER FOR RELIEF                          •                       •                                 9

CERTIFICATE OF SERVICE                                                   •                           9

APPENDIX

      OPINION OF THE TENTH COURT OF APPEALS                                                    END
                         NAMES   OF    ALL   PARTIES



Petitioner:                                     James    Kenneth          Keels     Jr.

                                                TDCJ#    1920712

                                                Huntsville          Unit

                                                815     12th        Street

                                                Huntsville,          TX    77348



Petitioner's Trial Attorney:                    Michael       J.    Crawford

                                                416    North       14th    Street

                                                Corsicana,..         TX    77110



Petitioner's Attorney on Appeal:                Ricky D.       Jones
                                                P.O.    Box    142416

                                                Austin,       TX    78714



Presiding Trial Judge:                          Honorable          Amanda        Putman

                                                County Court of Law
                                                Navarro County,             Texas



State's Attorney:                               Mr.    Lowell       Thompson
                                                Criminal       District           Attorney
                                                300 West       3rd       Ave.:    Ste.    203

                                                Corsicana,          TX    75110



State's Trial/Appeal Attorneys:                 Mr.    William Thompson,                 ADA
                                                Mr.    Jason       Horn,     ADA

                                                Mr-    Cody Beauchamp,              ADA
                                                300 West       3rd       Ave-     Ste.    203
                                                Corsicana,          TX 75110




                                  li
                           TABLE   OF   AUTHORITIES


CASES                                                                     PAGES

Granados v State, 85 S.W-. 3d 217(Tex.Crim. App. 2002)                          7

Hicks v Oklahoma, 100 S.Ct. 2227 (1980)-                •                       4

Luquis v State, 72 S.W.3d 355 (Tex .Crim. App. 2002 )                           4

Matamoros;v
    _
            State, 901
                    £
                       S.W.2d 470(Tex.Crim.App.1995)                        •• 8

McQuarrie v State, 380 S.W.3d 145(Tex.Crim.App.2012)                   4,5,6,8

Sells -v State, 121 S. W. 3d 748(Tex. Crim-app. 2003)                            V

State v Read, 965 S.W.2d 74(Tex.App.-Austin 1998)                               8

UNITED STATES CONSTITUTIONS:

U. S.CONST. FOURTEENTH AMENDMENT• •••                                            5




 STATUTES/   CODES/   RULES:


Tex. Code. Crim.Proc.   Art. 35.16- • •          •                               7


Tex. Code.Crim.Proc.    Art .36.14- • • • - •                                   4


Tex. Code. Crim.Proc. Art. 3 7.97 §4                                   3,4,5,7

Tex. Govt. Code. §508.144- • •                                                  6

/Tex.R.Evid . Rule 606(b)                    •              • • • 2 ,4 ,5, 6 ,7 ,8




                                        in
                        STATEMENT REGARDING ORAL ARGUMENT

          Petitioner does not request oral argument.

                               STATEMENT OF THE CASE

          Petitioner was indicted in Cause Nos. C 34,855 & C 34,828-CR
in     the      County Court Of Law, Navarro County, Texas, charging him
with the felony offenses of: 1) Possession of a controlled subst
ance       in   the    amount of 4 grams or more but less than 200 grams,
and 2) tampering with physical evidence. The jury found Petitioner
guilty of the offenses and sentenced him to two 99 year sentences
enhanced as a habitual offender.


                            STATEMENT OF PROCEDURAL HISTORY


          A motion for New Trial was timely filed and was denied.
          Petitioner appealed to The Tenth Court of Appeals of Texas and
the case was Affirmed on July 30, 2015, not designated to publish.
                                GROUNDS FOR REVIEW

1. The Tenth Court of Appeals erred when it found the trial court
     did not abuse it's discretion in disallowing evidence of juror
     misconduct.

                                REASONS FOR REVIEW

1. The       Tenth    Court of appeals has decided an important question
     of     State     and   Federal .law that has not befen, but should be,
     settled by the Court of Criminal Appeals.
2. The Tenth Court of Appeals appears to have misconstrued the
     rules of evidence and the code of criminal procedure of Texas.
3. The decision of the Tenth Court of Appeals so far deviates
   fr.om the. £a±T' administration. o£ justice ;t*at :;.fthe .Qguiit ..:;
     of Criminal Appeals correction is required .Tex.R.App.Proc. 66^ 3--.
                                  STATEMENT           OF   THE    FACTS


      Trial        counsel, during the Motion for New Trial, attempted to

bring three         jurors to the stand to                     question the jurors regarding

whether       or     not they followed the mandate in the jury charge not

to    consider        how     the        parole law might be applied to Defendant.

However,      the Court disallowed any questioning of the three jurors

who    were        subpoenaed and present in Court regarding whether they

had violated their oath and the jury charge.

      THE COURT:       "The       Court's           ruling        is   that based on the Texas
                       Rules        of       Evidence 606(b) and the cases that were
                       presented,              I    do     not     find    that this is outside
                       influence.            And,    therefore,        I am not going toallow
                       the jurors to testify about that matter."
                                                       [Vol. 13:45:15-19]

      Further,        trial counsel offered prima facie evidence that the

jury had engaged in the alleged misconduct stated, above,, through ,

his Bill of Exceptions, i.e., trial                              counsel    played a recording,

Defense       Exhibit        3,     which           is a conversation between R.D.Lewis,

Trial Counsel's private investigator, and Aaron Phillip Mershawn,

who was a juror at the trial.[Vol. 12:83:3-5]. In pertinent part:
      Mr. Lewis: Do           you        have       a,     I     mean, was there a particular
                       thing that swayed y'a'll towards the 99?
      Mershawn:        Yeah.  [deleted]  The                      whole  deal was, is we went
                       back and did the math.                     He had two other priors'. He
                       did a quarter of the sentence. So basically he did
                       like one year the first time on the seven 10 year,
                       or something like that.

      Mr.   Lewis:     Oh.

      Mershawn:        I don't           remember          the     exact    number. And he did,
                       supposed              to do like and he did like three or four
                       of     that           one.     We       figured if we gave him 99 and
                       he     gets out again he would be too old to sell the
                       drugs- We did a quarter.

      Mr.   Lewis:     Did    that       —

      Mershawn:        We gave him a quarter.                          [Vol. 12:92:3-21]
       The Court had properly instructed the.jury during the punish

ment phase of the trial on TEX.CODE.CRIM.PROC.art.37.07,§4:

               PAROLE      AND    GOOD       CONDUCT    TIME   IN PERTINENT    PART


      "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 plus any good conduct

time earned equals one-fourth of the sentence imposed.Eligibliity

for     parole        does       not     guarantee that parole will be granted.           It

cannot accurately be predicted how the parole law and good conduct

time     might        be applied to this defendant if he is sentenced to a

term     of     imprisonment,                because     the   application of these laws

will     depend        on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct

time.     However,           you are not to consider the extent to which good

conduct        time       may    be awarded to or forfeited by this particular

defendant.       You are not to consider the manner in which the parole

law may be applied to this particular defendant."Emphasis added.

[Vol. 12:117:9-118:13] See also the Jury Charge in Clerk's Record

at page 142 of pd..

                                              INTRODUCTION


       Prior     arguments             and     conclusions        throughout   the course of
these     proceedings            have        muddied      the water confounding the true
nature of this error. Keels will show the Court this affected the

very     base of his punishment and deprived him of a valuable right
resulting in a total deprivation of due process during the punis
hment phase of trial.

       This     issue       presents           a perplexing accumulation of statutes,
rules,        and     Court      precedents            creating     a   paradox pitfall that
deprives      the   Petitioner         of       an     avenue in which to preserve, or

prove, the juror misconduct herein.

    Clearly,        the   trial court and the Tenth Court of Appeals has

misconstrued        TEX-RULES.EVID-             rule     606(b),     and the holdings of

this Court in McQuarrie v State, 380 S...W. 3d 145 (TexCrimApp2012) .

    The     Tenth     Court      of    Appeals          opinion handed down.here is a

contradiction        in   and     of itself, which is an oxymoronic argument

against     enforcing the jury's statutory requirenents of not •:.con

sidering      the   application            of    parole     laws, where Justice Davis

iterates      the   strategem         as        "assuming without deciding that the

evidence in the bill of exceptions was otherwise admissible." and

Chief     Justice Gray's concurring note states the obvious opposite

"Keels     failed    to     introduce           any admissible evidence before the

trial court that any juror violated their oath."

    Thus, it is incumbent., upon                 the    Court of Criminal Appeals to

clean the slate and address the due process implications as in the

facts as stated here-, in accordance with the dictates of McQuarrie.

                            ARGUMENTS"AND            AUTHORITIES


    Trial      judges     are required to deliver to the jury "a written
charge     distinctly setting forth the law applicable to the case."
TEX.CODE.CRIM.PROC.art.36.14. Article 37.07, §4(a) is a legislat

ively-mandated       statement         of       law     applicable     to the punishment
phase of the trial. Luquis v State, 72 S.W. 3d 355 n.18 (TexCrim-
App 2002) .

    In Hicks v Oklahoma/ 100 S.Ct. 2227, 2229 (1980) SCOTUS held:

    "Where      a   state       has provided for the imposition of criminal
    punishment in the discretion of the jury, defendant's interest
    in     the exercise of that discretion is not merely a matter of
    state procedural law; defendant in such case has a substantial
    and legitimate expectation that he will be deprived of his
    liberty   only   to   the  extent  determined by the jury in the
    exercise of its statutory discretion and that liberty interest
    is one,that the'Eourt eenth Amendment preserves against arbitrary
  /deprivation by the State." (internal citations omitted)

       Here,        Keels       was     sentenced           to   two - 99 year prison terms,

twice        doling the          maximum numerical sentence allowed by law, for

what     amounts           to    the     simple        act of dispossessing himself of a

relatively           small amount of methamphetamine- Quite understandably,

counsel           hired     a private investigator to                  investigate the possib

ility        of     juror       misconduct           during      punishment      phase of trial.

       Clearly,           the investigation revealed that the jury engaged in

misconduct thereby violating                         its     oath,     the jury charge and the

Petitioner's statutory created due process                               right     not to consider

the manner in which parole law is to be applied during sentencing.

The statements made by the juror Mershawn to private investigator

Lewis        bore a substantial indicia of reliability to meet a thres

hold     requirement             for     further           development     of the facts by the

trial    court.

                       THE      TRIAL    COURT'S       ABUSE     OF   DISCRETION

  AND THE TENTH COURT OF APPEALS MISUNDERSTANDING OF MCQUARRIE1'
       The     facts       of     this        case     fall squarely within the Court of

Criminal Appeal's interpretation of Tex.R.Evid.606(b) in McQuarrie.Id

       Under       606 (b)       (1), the juror may testify whether any outside

influence was improperly brought to bear upon any juror.                                   In the

McQuarrie          case     the outside influence was internet research that

this     Court       held       was      in        violation of the mandates of the
                                          .,>•••

jury charge and in violation of their "oath" see Id at 154-
       Here the outside influence also involved the jury's violation

of the jury charge and their oath concerning C.C.P, art-37.07§4.

1. McQuarrie v- State, 380 S.W. 3d 145 (Tex.Crim.App.2012) -
Parole eligibility and release to parole are issues solely within

the discretion of the Parole Board, governed by State law,             subject

to    change      without notice, reason, or standing to challenge,       see

Tex.Govt.Code.       §508.144.

      The   Board     utilizes     a comprehensive list of dynamic factors

and     various     elements     significantly unrelated to the prisoner's

crime or the facts prior to his incarceration as part of a complex

equation to determine an appropriate length of actual flat time an

individual must serve on his punishment assessed.           Any    attempt by

the jury to engage in such calculations at arriving at an approp

riate punishment is forbidden and simply            not possible. Thus,   the

actions alleged by Keels and          as   presented in prima facie evidence

to the trial court in the motion for new trial fall squarely within

the McQuarrie plain - meaning interpretation of "outside influence"

under Tex.R.Evid-606(b)(1)- McQuarrie,supra at 154.

      The McQuarrie Court        addressed the issue of a juror's private

overnight      internet investigation of facts which was in violation

of    their oath and jury charge. The Court's reasoning and analysis

applies fairly to the facts here. A fair application of McQuarrie

shows    an inquiry into the effects of the juror's considering the

parole laws to arrive at a punishment do not require the court to

delve into deliberations,         see McQuarrie,   supra at 154:

         "An inquiry into the jury's private internet investigation
         does not require us to "delve into deliberations." Trial
         courts often   instruct jurors that they are to consider
         only the testimony heard in court and the physical exhibits
         admitted     into     evidence,    that they are not to speak with
         anyone     about the case, and that they are not to visit the
         scene     of the crime.    Consistent with these instructions,     a
         trial court should be able to inquire as to whether jurors
         received such outside information and the impact it had on
         their verdict without delving into their actual deliberat-r
         ions- This can be done by making an objective determination
             as     to        whether    the     outside influence likely resulted in
             injury to the complaining party-that  is,  by limiting the
             questions asked of the jurors to the nature of the unauth
             orized information or communication and then conducting an
             objective analysis to determine whether there is a reason
             able possibility that it had      a prejudicial effect on
             the "hypothetical average juror."(internal citations omitted).
       Keels presented              an    indicia       of reliable evidence indicating

the jury had engaged in misconduct, violating their oath, and the
jury     charge.              A juror must... use the law, the evidence, and the

trial        court's          mandates     as     his    ultimate guides in arriving at

decisions as to guilt or innocence and as to punishment." Granados

v State, 85 S.W.3d 217,                  235 (Tex.Crim.app. 2002).         As a result of

the     jurors           violation       of     the written charge distinctly setting
forth        the     law applicable to the case in C.C.P. 37.07,§4(a), the
hearing on the motion for new trial, Rule 606(b) would permit the
court        to     question the jury, without delving into deliberations,

and     to     determine           whether       an improper influence was brought to

bear that impacted the outcome of Keels punishment.
                               RULE 606 (b)      (2)'S APPLICABILITY

      Under         Tex.R.Evid- 606(b)(2),              a   juror   may   testify to rebut

a claim that the juror was not qualifiedl to serve.

                              JURORS INCAPABLE OR UNFIT TO SERVE

      Tex.Code.Crim.Procart. 35.16 (c)(2) in pertinent part:

             "A challenge for cause                     alleging some fact which renders
             the juror incapable or unfit to serve on the jury... maybe
             made        by     the defense for... bias or prejudice against any
             of the law applicable to... the punishment therefore."
      The Court of Criminal Appeals held in Sells v State, 121 S.W.
3d 748, 759 (Tex-Crim.App- 2003):
             "The test [for dismissing a juror for cause because of bias
             or prejudice]   is  whether the   bias or prejudice would
             substantially                   impair     the       prospective juror's ability to
             carry          out        his     oath     and instructions in accordance with
             the    law."

       Here,        the          jury        violated       the    law        as mandated in the jury

charge.           Sister          Appellate           court's have addressed similar issues

where        jurors          have withheld information and prejudice under Art.

35.16,       i.e.:

       State v Read, 965 S.W.2d 74, 76(Tex.App.-Austin 1998,no pet.)

             "After trial and sentencing, but within the time permitted
             for        a    motion          for      new     trial,     Read discovered that this
             juror had been convicted of misdemeanor theft..." Held:
             Trial court did not err in granting a new trial.

       Matamoros v State, 901 S.W.2d 470, 476-77(Tex.Crim.App.1995)
          "One sign of this condition may be the court's inability
             to    determine              the      venireman's           views for th-ys,| purpose of
             deciding other possible grounds of disqualification."

       Therefore,            under 606(b)(2),                 the trial court was permitted to

question           the       jurOrs in order to determine if they had, in fact,

withheld information concerning an inability to follow the law as

required           by       the        jury charge that would have rendered him unfit

to serve on the jury.

                                                   CONCLUSION


       The        jurors          violated         their      oath       to     follow the law not to

consider          parole in the determination of the sentence imposed. On
the     hearing             of     the motion-for new trial the trial court abused

it's discretion in disallowing a simple inquiry into this matter,

The Tenth Court of Appeals Misconstrued the Court of Criminal App.

holdings in McQuarrie, supra, Thus,                                 it    is     necessary   to remand
this     case        for          an     inquiry into this jury issue, as it does not

violate any rule or Rule 606 (b) of the Tex.R.Evid.


                                                              8
                                     PRAYER      FOR   RELIEF


       WHEREFORE,        PREMISES:. CONSIDERED,. Petitioner respectfully prays

that       this    Court grant discretionary review and allow each party

to     fully brief and argue the issues before the.Court of Criminal

Appeals       and that upon reviewing the judgment entered below,                        that

this       Court    reverse      this      cause and remand it for a new hearing

on the Petitioner's original Motion for New Trial.

                                                             Respectfully submitted,



                                                             J^tmes Kenneth Keels/Jr.
                                                             Petitioner    Pro   se
                                                             Huntsville Unit      TDCJ#1920712
                                                             815   12TH    Street
                                                             Huntsville,    TX   77348




                                 CERTIFICATE       OF   SERVICE


      I     certify      that    a      true    and     correct copy of the foregoing

instrument         has    been       furnished        to counsel    for   the State and   to

the       State    Prosecuting          Attorney       via   First Class Mail, postage

prepaid on the date indicated below.



Executed on this the             <7hL          day of_ S>Uan                2015.
                             APPENDIX




1- Opinion of the Tenth Court of Appeals.
                                         IN THE
                           TENTH COURT OF APPEALS


                                  No. 10-14-00140-CR
                                  No. 10-14-00141-CR


JAMES KENNETH KEELS, JR.,
                                                              Appellant
 v.




THE STATE OF TEXAS,
                                                              Appellee


                           From the County Court at Law
                              Navarro County, Texas
                  Trial Court Nos. C-34828-CR and C-34855-CR



                            MEMORANDUM OPINION



       A jury found Appellant James Kenneth Keels, Jr. guilty of the offenses of

possession of a penalty-group 1 controlled substance in an amount of over four grams

but under 200 grams and tampering with physical evidence and assessed his

punishment, enhanced by prior felony convictions, at ninety-nine years' imprisonment

for each offense, to be served concurrently. These appeals ensued. Keels has filed a

joint brief for both appeals. In his sole issue, Keelssets forth the following question:

      Is it permissible for a trial attorney to question any juror post-trial in order
         to determine whether the jury violated the jury charge and thereby
         usurped the Parole Board powers delegated to the Executive Department
         of our government under the Texas State Constitution, Article 4 Section
         11?


         The relevant background is as follows. After he was sentenced, Keels filed a

 motion for new trial alleging in part that jury misconduct had occurred. Keels stated in

the motion that his counsel had received information from a juror, Aaron Phillip

Mershawn, that the jury had considered the possibility of when Keels would be

released from prison, in violation of the parole and good-conduct-time instruction given

in the punishment charge in each case. The motion stated that Mershawn said that the

jury looked at how much time Keels had served for his two prior convictions and "did

the math." The motion stated that Mershawn further said that "[t]he jury figured that if

he only served a quarter of the sentence and they gave him 99 years that when he was

released he would be too old to sell drugs."

         A hearing was held on the motion for new trial. Mershawn did not testify. Keels

attempted to offer into evidence a recording of a telephone call between Mershawn and

R.D. Lewis, a private investigator, through Lewis. The State objected that "it's hearsay

and depending on the content that it violates Rule 606([b]) and goes into juror

testimony. And if it doesn't go into the juror's testimony then it's irrelevant." The trial

court ruled: "I don't think that we've reached the issue of 606(b) with this witness.... I

don't have a ruling in regards to 606(b) with this witness, because he was not a juror. In

regards to the phone call, your objectionfor hearsay is sustained."

        Keels then called Kay Berry, another juror, to testify at the hearing, but the State


Keels v. State                                                                        Page 2
  objected that her testimony would be in violation of Rule 606(b). The trial court ruled:

  "The Court's ruling is that based on the Texas Rules of Evidence 606(b) and the cases

 that were presented, I do not find that this is outside influence. And, therefore, I am not

 going to allow the jurors to testify about that matter." Keels then started to make a bill

 of exception. The following exchange took place:

                 Q.     (By [Defense Counsel]) Ms. Berry, I take you back to the day
          that the jury met for punishment of my client, Mr. Keels. At any time was
          there a discussion of the parole law and how it may effect his punishment
          sentence?


                       [Prosecutor]: Objection, Your Honor, compound question.

                       THE COURT: Would you please --

                       [Defense Counsel]: Your Honor, this is my bill.

                       THE COURT: - - rephrase.

                Q.     (By [Defense Counsel])         At any time during the
         deliberations, did you discuss the parole law?

                 A.    No.


               Q.     Do you remember ever talking about what the State had
         argued that Mr. Keels had been convicted twice and served only so much
         time on each case?

                       [Prosecutor]: Objection. Compound question.

                      THE COURT: Can you please rephrase, just break it up,
         [Defense Counsel].

                      [Defense Counsel]: Your Honor, this is my bill.

                      THE COURT: I understand.


                      [Defense Counsel]: He doesn't have a right to - -


Keels v. State                                                                         Page 3
                        THE COURT: Would you - -

                        [Defense Counsel]: - - he doesn't have a right to object to
          my bill. This is my bill.

                        THE COURT: - - would you break your question down for
          the record.


                        [Defense Counsel]: At this time, Your Honor, I'm going to
          stop my bill. I have 90 days to prepare my bill, and I'll get it to the Court.

                        THE COURT: Okay.

         The recording of the telephone call between Mershawn and Lewis was also later

included in the record in a bill of exception. The conversation during the call was in

relevant part as follows:

                       MR. LEWIS: Okay. All right. I guess the other question is
         the regular range on this was 2 to 20 without any priors.

                        MR. MERSHAWN: Uh-huh.


                      MR. LEWIS: And there was no deaths, no injuries, and they,
         the jury came up with 99 years.

                        MR. MERSHAWN: Uh-huh.


                      MR. LEWIS: Do you have a, I mean, was there a particular
         thing that swayed y'all towards the 99?

                      MR. MERSHAWN: Yeah. That was, maybe he doesn't
         remember, I think he felt really bad about losing. The whole deal was, is
        we went back and did the math. He had two other priors. He did a
        quarter of the sentence. So basically he did like one year the first time on
        the seven year, or something like that.

                        MR. LEWIS: Oh.


                        MR. MERSHAWN:         I don't remember the exact number.
        And he did, supposed to do like 14 and he did like three or four of that
        one. We figured if we give him 99 and he gets out again he would be too

Keels v. State                                                                             Page 4
          old to sell the drugs. We did a quarter.

                        MR. LEWIS: Did that - -


                        MR. MERSHAWN: We gave him a quarter.

                       MR. LEWIS: So they had already presented the priors to
         y'all of what he served and what he got?

                        MR. MERSHAWN: Right.

         At the conclusion of the hearing, the trial court denied Keels's motion for new

 trial. We review a trial judge's denial of a motion for new trial under an abuse of

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

         Texas Rule of Evidence 606(b) states:

         (1) Prohibited Testimony or Other Evidence. During an inquiry into the
         validity of a verdict or indictment, a juror may not testify about any
         statement made or incident that occurred during the jury's deliberations;
         the effect of anything on that juror's or another juror's vote; or any juror's
         mental processes concerning the verdict or indictment. The court may not
         receive a juror's affidavit or evidence of a juror's statement on these
         matters.


         (2) Exceptions. A juror may testify:

             (A) about whether an outside influence was improperly brought to
             bear on any juror; or

             (B) to rebut a claim that the juror was not qualified to serve.

Keels argues that the exception found in Rule 606(b)(2)(A) applies in these cases and

that it should be broadly interpreted because "important countervailingconsiderations"

are involved. Keels claims that the exception applies in these cases because the parole

board itself and its operations are outside the jury room and because the potential

exercise by the parole board of its powers constitutes an influence that was "improperly

Keels v. State                                                                            Page 5
 brought to bear" upon the jury. We disagree.

          In McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012), the Court of

 Criminal Appeals defined "outside influence" as "something originating from a source

 outside of the jury room and other than from the jurors themselves." Id. at 154; see

 Colyer, 428 S.W.3d at 125. Here, assuming without deciding that the evidence in the

 bills of exception was otherwise admissible, it had nothing to do with something that

 originated from a source outside of the jury room and other than from the jurors

 themselves. Therefore, the evidence had nothing to do with an improper "outside

influence."


         The trial court did not abuse its discretion in refusing to consider the evidence in

the bills of exception and in denying Keels's motion for new trial. We overrule Keels's

sole issue and affirm the trial court's judgments.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
         Justice Davis, and
         Justice Scoggins
         (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed July 30,2015
Do not publish
[CRPM]

*      (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial
court's judgment with the following comments, a separate opinion will not follow:
Keels failed to properly introduce any admissible evidence before the trial court that
any juror violated their oath. After the trial court properly excluded the statements of
the juror when the private investigator attempted to testify about what the juror said

Keels v. State                                                                         Page 6
 during a telephone interview, the subsequent filing of the audio tape of that interview
 did nothing to present the testimony to the trial court judge as a basis to grant a new
 trial based on jury misconduct. And neither the trial court nor this Court knows what
 the other juror was going to testify to because a bill of exceptions (or an offer of proof)
 was never made. Having no evidence properly before the trial court upon which to
 grant a motion for new trial based on jury misconduct, the trial court did not err in the
 denial of the motion.
         Furthermore, the "issue" (fully set out in the Court's opinion) is nothing more
 than an abstract question to which the Court should not be drawn into discussing. It is
 a meaningless hypothetical and the record in this case shows that there was no restraint
 upon the attorney or his representative from talking to any juror post-trial. Finally, this
 is not the proceeding in which to elaborate upon how I may feel about having a rule
 about what jurors cannot do, but no effective tool to enforce that rule. It does, however,
 remind me of the proverb: A law without penalty is simply suggestion (Author
 unknown).
        Because the Court ultimately reached the same result that I would and affirms
the trial court's judgment, I respectfully concur in the judgment to that extent but do not
join the Court's opinion.)

           ^MtlHIM//,,,




          *«#«inti>«^v




Keels v. State                                                                        Page 7
