      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00329-CR



                                Jeremy Jermaine James, Appellant

                                                    v.

                                    The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 10-1032-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Jeremy James was charged with aggravated sexual assault of a child and with

indecency with a child by contact. See Tex. Penal Code Ann. § 22.021 (West Supp. 2012) (listing

elements for crime of aggravated sexual assault), § 21.11 (West 2011) (defining crime of indecency

with child). A trial was held, and the jury found James guilty of the crimes alleged. At the end of

the guilt portion of the trial, the district court instructed the jury to not discuss the case with anyone

and released the jury for the weekend. The jury reconvened the following Monday, and a punishment

hearing was conducted. After James and the State made their closing arguments, the jury deliberated

and sentenced James to imprisonment for twelve years for the assault charge and to imprisonment

for three years for the indecency charge.

                At the end of the hearing and after punishment was pronounced, one of the jurors,

McCay Bradford, informed the district court that he did not hear the district court’s instruction to
not discuss the case and that he had discussed the case with his wife and a friend over the weekend

before the punishment hearing started. The district court, the State, and James then questioned

Bradford about the nature of the conversations and whether they had an impact on his decision

making. After Bradford was questioned, Bradford was released, and the hearing concluded without

any further comment from the district court or the parties.

               James appeals his judgment of conviction.


                                           DISCUSSION

               In his sole issue on appeal, James contends that he is entitled to a new trial because

Bradford improperly discussed the case with individuals who were not serving on the jury.

               As a preliminary matter, we note that it appears from the record that James did not

preserve this issue for appeal. After juror Bradford informed the district court that he had discussed

the case with his wife and his friend, the State and James both questioned Bradford regarding the

types of conversations that he engaged in. However, James never moved for a new trial or made any

objection or other complaint to the district court regarding Bradford’s actions or the propriety of the

jury’s judgment.

               When describing the requirements for “presenting a complaint for appellate review,”

the rules of appellate procedure explain that “the record must show that” the party made the complaint

to the trial court “by a timely request, objection, or motion” and that the trial court ruled on the

complaint “expressly or implicitly” or that the trial court refused to rule on the complaint and that

“the complaining party objected to the refusal.” Tex. R. App. P. 33.1(a). The requirement that a

party make specific complaints promotes “the prevention and correction of errors.” Aldrich v. State,

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104 S.W.3d 890, 894 (Tex. Crim. App. 2003). “When valid objections are timely made and sustained,

the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and

retrial. When a party is excused from the requirement of objecting, the results are the opposite.” Id.

Given the primacy of the need to inform the court of the basis for a complaint, “[a]ll but the most

fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong,”

including many constitutional rights. Id. at 894.

                As mentioned above, James made no complaint to the district court. Moreover, the

error alleged on appeal does not fall within the two limited “categories of errors” that are exceptions

to the need to present the error to the trial court: “violations of ‘rights which are waivable only’ and

denials of ‘absolute systemic requirements.’” Id. at 895 (quoting Saldano v. State, 70 S.W.3d 873,

888 (Tex. Crim. App. 2002)). Waivable-only rights include the right “to the assistance of counsel,

the right to trial by jury, and [the] right of appointed counsel to have ten days of trial preparation

which a statute specifically made waivable-only.” Id. “Absolute, systemic requirements include

jurisdiction of the person, jurisdiction of the subject matter, [] a penal statute’s being in compliance

with the Separation of Powers Section of the State constitution[,]” the requirement “that a district

court must conduct its proceedings at the county seat, the constitutional prohibition of ex post facto

laws, and certain constitutional restraints on the comments of a judge.” Id.

                Even assuming that this issue is subject to appellate review, we would be unable to

sustain James’s point on appeal. See Tex. R. App. P. 21.2 (stating that motion for new trial is

prerequisite to presenting issue “on appeal only when necessary to adduce facts not in the record”).

Although no motion for new trial was filed in this case, the district court’s actions after hearing the



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testimony from Bradford evidenced its belief that a new trial was not warranted and thus effectively

served as a denial of a motion for new trial. We review the denial of a motion for new trial for

an abuse of discretion. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Under

an abuse-of-discretion standard, we “do not substitute our judgment for that of the trial court, but

rather decide whether the trial court’s decision was arbitrary or unreasonable.” Lewis v. State, 911

S.W.2d 1, 7 (Tex. Crim. App. 1995). Further, we must defer to reasonable implied facts that the trial

court may have made when denying a motion for new trial. Charles v. State, 146 S.W.3d 204, 211

(Tex. Crim. App. 2004).

                Under the rules of appellate procedure, an individual “must be granted a new trial, or

a new trial on punishment . . . when, after retiring to deliberate, the jury has received other evidence;

when a juror has talked with anyone about the case; . . . [or] when the jury has engaged in such

misconduct that the defendant did not receive a fair and impartial trial.” Tex. R. App. P. 21.3(f), (g).

If a juror discusses the case “with an unauthorized person,” an injury to the defendant is presumed

and may warrant a new trial. Bokemeyer v. State, 355 S.W.3d 199, 203 (Tex. App.—Houston

[1st Dist.] 2011, no pet.). The presumption of harm may be rebutted if it is shown that the defendant

was not injured because “the case was not discussed” or because “nothing prejudicial about the

accused was said.” Green v. State, 840 S.W.2d 394, 406 (Tex. Crim. App. 1992), disavowed on

other grounds by Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). If there is evidence

rebutting the presumption, reviewing courts should consider the evidence regardless of whether it

was presented by the State or by the accused. Bokemeyer, 355 S.W.3d at 203. When deciding

whether the presumption of harm has been rebutted, appellate courts “view the evidence in the



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light most favorable to the trial court’s ruling and defer to the trial court’s resolution of historical

facts and its determinations concerning credibility and demeanor.” Id. at 203-04. Moreover, the

“testimony from the juror involved in the impermissible conversation is enough evidence to support

a trial court’s ruling” that the presumption had been rebutted. Quinn v. State, 958 S.W.2d 395, 402

(Tex. Crim. App. 1997).

                As mentioned above, after the jury announced the punishment for James, the district

court stated that juror Bradford informed the court that “he didn’t hear my admonition . . . about not

discussing the case. And he told me when he went home that evening he did discuss the case with

his wife, not the punishment, not what we did here today, simply what happened prior to that time.”

Bradford then stated that he had discussed the case with a friend from church who had served on

several juries but “discussed it in detail with” his wife. He also clarified that the conversations

occurred “after we’d reached a verdict. I had not discussed any of this with anybody before we

reached a verdict.” Although Bradford related that he discussed the details of the case, he did not

state that he was given any new information about the crimes in either of his conversations.

                During the hearing, James asked Bradford, “Did your wife give you any feedback on

what you had told her, verbal or otherwise?” Bradford responded, “She did. She said guilty, absolutely

beyond a reasonable doubt.” In addition, James asked whether his wife’s statement had any impact

on his ability to assess a punishment, and Bradford replied, “It has an impact on my ability to think

clearly because truthfully if I’m racing through my brain trying to figure out did I make the right

choice, then that makes it harder to go through the punishment phase.” In addition, James asked if

his conversation could have affected the sentence he imposed by “even a year,” and Bradford replied

that it was “hard to say. I don’t know.”

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                Regarding his conversation with his friend from church, Bradford explained that

he told his friend that he felt terrible because “this is a difficult decision.” Bradford also stated that

they discussed some of the details about the case including the fact that the crime alleged in the

case was sexual abuse of a minor and that James had confessed to the crime. Furthermore, Bradford

communicated that his friend consoled him by stating that it was tough to serve on a jury in a case

involving child abuse but that “at least you had his confession.”

                When asked if his conversation with his friend made it easier to impose a longer

sentence, Bradford responded, “I was toward the low end as we began negotiations” and worked

his way up through his discussions with the other jurors. Moreover, although Bradford admitted

that his friend’s statement made him “[s]omewhat more confident” in his decision to find James

guilty, he explained that he did not rely on the conversation for assessing punishment because it

was his responsibility to determine a punishment. When asked whether discussing the case with his

wife made “it easier to assess some period of years or more number of years than you might have

otherwise,” James answered, “I don’t believe it significantly affected the outcome. . . . I do not

believe that I swung the group to a stiffer penalty.” James also explained that he did not think that

discussing the case with his wife “made [him] harsher” and clarified that he did not discuss the

possible punishment range with her and that his wife never stated what she thought would be an

appropriate punishment in the case. Finally, although Bradford stated that he had an extensive

conversation with his wife about the facts of the case, he also related that he felt that the State had

“proved its case beyond all reasonable doubt. I stand behind that.”

                In light of the standard of review that governs this case and in light of Bradford’s

explanation summarized above, including the fact that the conversations occurred after the jury had

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already found James guilty and Bradford’s statements indicating that he did not rely on either

conversation when assessing punishment, we cannot conclude that the district court abused its

discretion by concluding that the presumption of harm was rebutted or by failing to order a new trial

in this case.

                For all the reasons given, we overrule James’s sole issue on appeal.


                                         CONCLUSION

                Having overruled James’s sole issue on appeal, we affirm the district court’s

judgment of conviction.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Henson, and Goodwin

Affirmed

Filed: August 30, 2012

Do Not Publish




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