          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00316-CR




                                       Stephen Felipe Gamez
                                     aka Stephen Phillip Gamez
                                  aka Stephen P. Gamez, Appellant

                                                    v.

                                     The State of Texas, Appellee


           FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
               NO. 52,928, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




                A jury found appellant Stephen Felipe Gamez guilty of sexual assault of a child. See Tex.

Pen. Code Ann. ' 22.011 (West Supp. 2002). The district court assessed punishment, enhanced by

previous felony convictions, at imprisonment for forty years. In his only point of error, appellant contends

the court should have granted his mistrial motion after a juror had a conversation with an unauthorized

person. We will overrule this contention and affirm.

                Following a recess, a juror reported to the court that a man had spoken to her on the

elevator. AThis gentleman asked me if, if we had found the defendant guilty yet. And I said, >I cannot

discuss this case.= He said, >I=m sorry= and then he said C his next comment to me as the doors were

opening was, >He did it to my brother.= And I just, I just waved him off and walked out.@ The juror had not

seen the man before and could not identify him. The juror and the man were the only persons on the
elevator. The juror did not mention this incident to any other juror and immediately reported it to the bailiff.

The juror assured the court that she would put the man=s comment out of her mind and not consider it for

any purpose during deliberations. The court pressed the juror on this, telling her that it was Avery important

. . . for you to be a little more affirmative about either yes, you can and will put it out of your mind.@ The

juror replied, AYes, I can. I have children and I don=t take things at face value until I know more. That=s

just the type of person I am.@ The court then asked, ASo you=re telling the Court you will not consider that .

. . whatsoever and certainly not discuss it with anybody else other than us here?@ The juror answered,

AYes, ma=am.@

                 Injury to the defendant is presumed when a juror converses with an unauthorized person

about the case. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); Drone v. State, 906

S.W.2d 608, 617 (Tex. App.CAustin 1995, pet. ref=d). This presumption is rebuttable. Quinn, 958

S.W.2d at 401; Drone, 906 S.W.2d at 617. In determining whether the presumption was rebutted,

appellate courts should defer to the trial court=s resolution of the historical facts and its determinations

concerning credibility and demeanor. Quinn, 958 S.W.2d at 401.

                 Robinson v. State, 851 S.W.2d 216, 229-30 (Tex. Crim. App. 1991), was a prosecution

for capital murder. During trial, a juror disclosed to the court that her sister had read in the newspaper that

the defendant had killed one of his accomplices, a fact not in evidence, and had related this fact to the juror.

Id. at 229. The juror assured the court that she could disregard this information and would not disclose it

to the other jurors, and she promised that she would base her verdict solely on the evidence introduced at

trial. Id. at 229-30. The court of criminal appeals, noting that the trial court was in the best position to


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judge the credibility of the juror, concluded that the court had not abused its discretion by overruling the

defendant=s motion for mistrial. Id. at 230.

                 As in Robinson, the trial court in this cause chose to believe the juror=s assurances that her

verdict would not be influenced by the improper communication and that she would not reveal the

communication to the other jurors. Viewing the evidence in the light most favorable to the court=s ruling, we

conclude that the court did not abuse its discretion by overruling the motion for mistrial.

                 We overrule the point of error and affirm the judgment of conviction.




                                                   David Puryear, Justice

Before Chief Justice Aboussie, Justices Patterson and Puryear

Affirmed

Filed: October 17, 2002

Do Not Publish




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