

 











 
 
 
 
 
 
                                       NUMBER
13-09-00233-CR
 
                                        COURT OF APPEALS
 
                     THIRTEENTH
DISTRICT OF TEXAS
 
                         CORPUS
CHRISTI
- EDINBURG
                                                                     

 
THOMAS McQUARRIE,                                  
Appellant,
 
v.
 
THE STATE OF TEXAS,                                   
Appellee.
                                                                     

 
On appeal from the 2nd
25th District Court
of Gonzales County,
Texas.
                                                      
               
 
MEMORANDUM OPINION
 
        Before
Chief Justice Valdez and Justices Rodriguez and Benavides
                      Memorandum
Opinion by Justice Benavides
 




Appellant,
Thomas McQuarrie, was convicted by a jury of sexual assault against L.C., an
adult.  See Tex. Penal Code Ann.
§ 22.011 (Vernon 2003).  The court sentenced McQuarrie to four years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice.  By five issues, which we renumber as three, McQuarrie contends that: 
(1) the evidence was insufficient to establish the non-consensual element of
sexual assault; (2) the trial court erred in excluding the affidavits and
testimony of two jurors at the hearing on his motion for new trial; and (3) he
was deprived of his right to a fair trial under both the United States and the Texas
constitutions.  We affirm.  
I.  Background
 
McQuarrie
and L.C. knew each other for a number of years and became related by marriage
when McQuarrie’s brother married L.C.’s mother.  They considered each other to
be “buddies,” and they “hung out” regularly.  
Both
McQuarrie and L.C. testified that L.C. was homosexual, not bisexual.  At the
time of trial, L.C. was twenty-one years old and testified that she had been
dating the same woman, K.G., for four years.  L.C. testified that she had not
had a romantic interest in a male in ten years; she had not had a relationship
with a male since she was fourteen or fifteen years old; she did not have a
romantic interest in McQuarrie, nor did she flirt with him; and before the sexual
intercourse with McQuarrie, she had never had sexual intercourse with a man.  L.C.
testified that the thought of sexual intercourse with a man was “disgusting;
nasty; just uncomfortable.”
In
April 2006, McQuarrie and L.C. met at the home of Michelle Vega, L.C.’s aunt,
along with several other friends and family members.  The testimony indicated
that the group was barbecuing and drinking alcohol.  McQuarrie invited L.C. to
his parents’ former house where he and his friend, Troy Parea, were staying while
in town.  McQuarrie testified that he, Troy, and L.C. returned to his house at
about 10 p.m. where they all played drinking games, drank shots of liquor,
smoked marihuana, and used cocaine.  L.C. testified that Troy and McQuarrie
were drinking and using cocaine, but that when offered, she refused.  In her
statement to the police, however, L.C. admitted that she drank “a little bit of
beer” and did not mention any cocaine use by the others.  She testified that
she shared one marihuana joint with McQuarrie, Troy, and her friend Joseph—who
was at McQuarrie’s house for the first couple hours of the night.  McQuarrie
and Troy both testified that no one was at the house except the two of them and
L.C.  
L.C.
testified that at around 12:30 or 1 o’clock in the morning, she asked McQuarrie
for a drink, and he brought her a glass of water.  She testified that after she
drank the water, she did not feel well and that her “stomach just felt real
light.”  She sat down on McQuarrie’s blow up mattress—which was the only furniture
in the house—and the others moved around her and went outside to smoke while
she stayed sitting down.  Around 2 a.m., L.C. decided she would spend the
night.  According to K.G., L.C. telephoned her briefly to tell her that she was
going to stay at McQuarrie’s house because she did not feel well.  L.C.
testified that they brought a second mattress into the living room, but it was
later moved back to another room because L.C. did not feel comfortable sleeping
in the same room with Troy because she did not know him.  In her statement to
police, L.C. noted the moving of mattresses around as causing her unease, but she
did not mention that she did not feel well at that time.
McQuarrie
testified that L.C. showered, redressed, and returned to the living room where
he and Troy were, and that when Troy was ready to go to bed, they moved one of
the mattresses into the bedroom for him and that McQuarrie and L.C. shared the
mattress in the living room.  Troy testified that after she showered, L.C. and
McQuarrie were flirting and began a “hands-on thing,” so he went to bed in
order to leave them alone.  When asked if he knew L.C. was homosexual, Troy
noted that “once I saw her with [McQuarrie], I thought she was straight.”
L.C.
testified that she had not taken a shower that night, and that after she laid
down, McQuarrie did not join her in the bed until after she was asleep.  L.C.
denied:  (1) giving McQuarrie permission to have sex with her; (2) wanting to
experiment; (3) getting “touchy-feely” with McQuarrie; (4) flirting; (5)
“fooling around” whatsoever; (6) kissing him; and (7) any memory of McQuarrie
kissing her or taking off his clothes.
McQuarrie
testified that after they laid down, they shut their eyes and he “felt a hand
go to [his] stomach and kind of do this (indicating) a little bit, and one
thing lead to another.”  He testified that he kissed L.C. once or twice on the
mouth, and that after ten minutes of rubbing each other with their clothes on,
he removed his shorts and retrieved a condom out of his bag.  McQuarrie
testified that he did not take L.C.’s clothes off and that no words were
exchanged but that she was looking directly at him during the encounter.  He
testified that L.C. never said “no” or “stop” and did not try to push him
away.  He was sure she knew what was happening because they had “partied like
that many, many times:  the cocaine, the weed, and the alcohol.”  McQuarrie
specifically denied giving L.C. any date rape drugs.
L.C.
testified that when she woke up in the morning, she “just didn’t
feel . . . right” and that she “felt dirty.”  She testified that
McQuarrie was on the other side of the air-mattress, appeared to be awake and
watched her gather her things, but she simply left without speaking to him.  In
her statement to police, however, L.C. said that she awoke to McQuarrie
standing at the end of the bed, but she pretended to be asleep because she
“didn’t know if . . . he was going to hurt [her] again,” and
that when he got back into bed, she waited for him to go back to sleep before she
got up and left.  On cross-examination, L.C. testified that this was the “first
time” she woke up, and that McQuarrie was in bed when she left.  McQuarrie
testified that when L.C. got up, she told him she was going to her aunt’s
house, and he acknowledged her.
L.C.
testified that after leaving McQuarrie’s house, she went to her aunt’s house
and took a shower.  She testified that she “really didn’t know what happened,”
but that she “knew something was wrong.”  L.C. called K.G. and told her that
she did not know what happened; K.G. told L.C. that she needed to tell
somebody.  K.G. testified that L.C. was “real quiet and upset,” and that she
was crying.  K.G. testified that if L.C. had consented to having sex with
McQuarrie, she would have been mad.
Following
discussions with friends and family, Lieutenant West of the Gonzales Police
Department spoke with L.C.  L.C. told Lieutenant West that when she woke up,
“her shorts and her boxer shorts were . . . turned different
than what they were when she went to sleep.”  Lieutenant West collected the
clothes L.C. had been wearing as evidence and noted that L.C. had no bleeding
or discomfort to her vaginal area.  Lieutenant West testified that L.C. would
not make eye contact and she spoke really softly, which she testified was
consistent with sexual-assault-victim behavior.  On cross-examination, Lieutenant
West testified that L.C. was not even sure she had had sex with McQuarrie.
The
following day, Easter Sunday, McQuarrie arrived at L.C.’s mother’s house for a
family gathering.  L.C.’s mother testified that she told McQuarrie to leave,
and that he claimed not to have any idea what was going on and that “nothing
happened.”
Clay
Fetters, a patrol officer with the Gonzales Police Department, testified that
he originally thought it strange that a female who only drank a little beer and
smoked a joint would stay asleep during sexual intercourse.  He testified that
is was possible that L.C. had been drugged, and that drugs go out of the blood
“pretty much immediately”—making them difficult to detect.
Nearly
a year after the event, the police department asked McQuarrie to come in for
questioning, to which he agreed and voluntarily provided DNA samples. 
McQuarrie admitted to having consensual sex with L.C. and that they had consumed
alcohol and marihuana on the night in question.  McQuarrie’s DNA was matched to
semen found on L.C.’s clothes that were taken by the police.
Laura
Kinnison, a crisis intervention counselor and victim’s advocate, testified that
she counseled and observed L.C. five or six times between December 2006 and
April 2007.  She testified that L.C. reported feelings of anger, feeling
changed, and experiencing intrusive thoughts and nightmares—all of which were
consistent with other “sexual assault survivors” she had counseled.  Kinnison
acknowledged that she was not a mental health expert, and further noted that it
is possible that these issues could have stemmed from the simple fact that L.C.
is homosexual or from a consensual encounter by a homosexual woman with a
person of the opposite sex.
During
the jury’s deliberations, the jurors sent a note to the judge at the end of the
first day indicating that they were split nine to three in favor of a guilty
verdict.  The jury returned the next day and deliberated for an additional hour
before finding McQuarrie guilty of sexual assault.  At the hearing on his
motion for new trial, McQuarrie offered into evidence the affidavits of two of
the jurors from the trial who affirmed that a third juror had researched the effects
of date rape drugs when the jury was released after the first day of
deliberations and relayed that information to the other jurors.   They
additionally noted that they had previously been undecided on guilt and that
the information provided by the juror caused them to vote guilty.  The trial
court found that the affidavits did not show sufficient “outside influence” and,
therefore, refused to consider the affidavits and overruled the motion for new
trial.  This appeal ensued.  
II. 
Discussion
 
A.  Sufficiency
of the Evidence
            By
his first and second issues, McQuarrie contends that the evidence at his trial
was legally and factually insufficient to establish the non-consensual element
of sexual assault.  The Texas Court of Criminal Appeals has held that our only
sufficiency review should be under “a rigorous and proper application” of the Jackson
standard of review, and therefore, we apply only that standard as argued in
McQuarrie’s legal sufficiency argument.  See Brooks v. State, 323 S.W.3d
893, 906 (Tex. Crim. App. 2010).  Under this standard, “the relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S.
307, 319 (1979); see Brooks, 323 S.W.3d at 902 n.19.  “[T]he
fact-finder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.”  Jackson,
443 U.S. at 319 (emphasis in original); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (The
jury, in all cases, is the exclusive judge of facts proved, and the weight to
be given to the testimony . . . .”); Wesbrook v. State,
29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (“The jury is the exclusive judge of
the credibility of witnesses and of the weight to be given testimony, and it is
also the exclusive province of the jury to reconcile conflicts in the
evidence.”).
            Sufficiency
of the evidence is measured by the elements of the offense as defined by a
hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234,
238-40 (Tex. Crim. App. 1997); see also Adi v. State, 94 S.W.3d 124, 131
(Tex. App.–Corpus Christi 2002, pet. ref’d).  Under a hypothetically correct
jury charge, the State was required to prove beyond a reasonable doubt that
McQuarrie:  (1) intentionally or knowingly; (2) caused the penetration of the
sexual organ of L.C. by any means; (3) without her consent.  See Tex. Penal Code Ann.
§ 21.011(a)(1)(A).  The statute dictates that the State can show a lack of
consent by showing, among other possibilities, that:  (1) “the other person has
not consented and the actor knows the other person is unconscious or physically
unable to resist”; (2) “the other person has not consented and the actor knows
the other person is unaware that the sexual assault is occurring”; or (3) “the
actor has intentionally impaired the other person's power to appraise or
control the other person's conduct by administering any substance without the
other person's knowledge.”  Id. at §§ 21.011(b)(3), (5), (6).
            McQuarrie
concedes that the evidence was sufficient to establish the first two elements
of the offense, but that it was insufficient to establish the third—a lack of
consent.  We disagree.  In holding to the contrary, we consider the following
evidence to be sufficient for a jury to rationally find that L.C. did not
consent to sexual intercourse:  (1) L.C. testified that she never would have
consented to having sex with a man, and that the idea was “disgusting” to her;
(2) L.C. was intoxicated (whether voluntarily or involuntary) by drugs and
alcohol to the point that she was not aware of what was happening; (3) despite
the clear evidence that sexual intercourse had occurred, L.C. was unsure of
what, if anything, occurred; (4) testimony indicated that L.C.’s behavior in
the following days was consistent with other sexual assault victims’ behavior;
(5) testimony indicated that L.C. displayed behavior that would be consistent
with someone who had been drugged, and McQuarrie provided L.C. with several
drinks—either water or otherwise—that were prepared outside of her view and
gave her a “light feeling” in her stomach; and (5) L.C. unequivocally testified
that she did not consent to sexual intercourse. 
            We
recognize that all of this evidence was controverted during the trial, but it
is within the province of the jury to determine the credibility of the
witnesses and to determine what weight is to be given to all of the testimony. 
Wesbrook, 29 S.W.3d at 111.  Additionally, we must consider this
contested evidence in the light most favorable to the prosecution.  Jackson,
443 U.S. at 319.  When we evaluate the evidence under the framework in Jackson,
we cannot say that no rational jury could find that L.C. did not consent to the
sexual intercourse as there was some evidence to support a jury’s finding that
either L.C. was unconscious, unaware the assault was occurring, or had been
involuntarily drugged.  See Tex.
Penal Code Ann. §§ 21.011(b)(3), (5), (6); Jackson, 443 U.S.
at 319.  Accordingly, we overrule McQuarrie’s first and second issues.
B.  Outside
Influence
           By
his third, fourth, and fifth issues, McQuarrie contends that he was deprived of
his federal and state constitutional rights to due process and to an impartial
jury “by a juror who conducted independent research on the internet during an
overnight recess and conveyed that information to the other jurors during
deliberations the next morning.”  McQuarrie additionally contends that the
trial court erred in excluding the affidavits of two jurors during the hearing
on his motion for new trial.  He contends, ultimately, that the jurors were
influenced by evidence not admitted in trial, and therefore, he was denied a
fair trial and that the trial court should have granted his motion for new
trial.
A
trial court's ruling denying a defendant's motion for new trial is reviewed
under an abuse of discretion standard.  Salazar v. State, 38 S.W.3d 141,
148 (Tex. Crim. App. 2001).  We do not substitute our judgment for that of the
trial court, but rather, we will only find an abuse of discretion if the trial
court’s decision was unreasonable and made without reference to guiding
principles.  Id.  The trial court did not consider the jurors’
affidavits based on the fact that they did not fall within any exception listed
in Texas Rule of Evidence 606(b), which provides that,
Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or statement
occurring during the jury’s deliberations, or to the effect of anything on any
juror’s mind or emotions or mental processes, as influencing any juror’s assent
to or dissent from the verdict or indictment.  Nor may a juror’s affidavit or
any statement by a juror concerning any matter about which the juror would be
precluded from testifying be admitted in evidence for any of these purposes. 
However, a juror may testify:  (1) whether any outside influence was improperly
brought to bear upon any juror . . . .
 
Tex. R. Evid.
606(b).  
McQuarrie
recognizes that this Court has repeatedly held that “[a]n outside influence
must emanate from outside the jury and its deliberations.”  Soliz v. Saenz,
779 S.W.2d 929, 931-32 (Tex. App.–Corpus Christi 1989, writ denied); see
also Brandt v. Surber, 194 S.W.3d 108, 133 (Tex. App.–Corpus Christi
2006, pet. denied).  McQuarrie’s argument is that “this [C]ourt has continued
to follow [this rule] without analysis” and that it “should be re-examined.” 
McQuarrie contends that the proper test should be whether the testimony would
require the court to delve into the deliberations of the jury.  See Golden
Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000) (noting that
juror testimony is permitted on certain specific issues, “provided such
testimony does not require delving into deliberations”).  
Assuming,
without deciding, that we would adopt such an approach in this case, the
affidavits in question clearly require a delving into the jury’s deliberations
and would nevertheless be inadmissible because they require the court to take
into consideration the factors that might have convinced each juror, how each
juror weighed the evidence, and all the other conversations between jurors that
may have rendered the external information harmless.  Regardless of the
foregoing, we continue to agree with our analysis in Soliz that: 
[a]n “outside influence” does not
include information not in evidence, unknown to the jurors prior to trial,
acquired by a juror and communicated to one or more other jurors between the
time the jurors received their instructions from the court and the rendition of
the verdict.  To constitute “outside influence,” the source of the information
must be one who is outside the jury, i.e., a non-juror, who introduces the
information to affect the jury's verdict.  Information gathered by a juror and
introduced to the other jurors by that juror, even if the information were
introduced specifically to prejudice the vote, does not add up to outside
influence.
 
Soliz, 779 S.W.2d at 932.  The reasoning
behind this rule was explained in the civil context by the Texas Court of
Criminal Appeals:
[This rule] is based upon controlling
considerations of a public policy which in these cases chooses the lesser of
two evils.  When the affidavit of a juror, as to the misconduct of himself or
the other members of the jury, is made the basis of a motion for a new trial,
the court must choose between redressing the injury of the private litigant and
inflicting the public injury which would result if jurors were permitted to
testify as to what had happened in the jury room.
  
State ex
rel. Rosenthal v. Poe,
98 S.W.3d 194, 202 n.12 (Tex. Crim. App. 2003).  Therefore, based on this rule,
the jurors’ affidavits in this case showed no evidence of outside influence
whatsoever.  Accordingly, the trial court properly excluded the affidavits and
testimony, and it did not abuse its discretion in denying McQuarrie’s motion
for new trial on this basis.  See Tex.
R. Evid. 606(b); Salazar, 38 S.W.3d at 148.
            McQuarrie
next contends that, if we follow our Soliz line of cases, rule 606(b),
as applied in this case, violates his constitutional right to a fair trial.  We
“presume that the rule approved by the Supreme Court and the Court of Criminal
Appeals is constitutional,” and “the burden is on the party challenging the
statute to establish its unconstitutionality.”  Luquis v. State, 72
S.W.3d 355, 365 (Tex. Crim. App. 2002).  The exclusion of a particular piece of
evidence, even if it is necessary to a criminal defendant’s case, will
generally not constitute a constitutional violation, and a criminal defendant
has a heavy burden to show a violation of his constitutional rights.  See
Montana v. Egelhoff, 518 U.S. 37, 43 (1996); Ray v. State, 178
S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State, 68
S.W.3d 657, 665 (Tex. Crim. App. 2002)) (“[E]videntiary rulings rarely rise to
the level of denying the fundamental constitutional rights to present a
meaningful defense.”); see also Harper v. State, No. 14-07-00422-CR,
2008 Tex. App. LEXIS 8013, at *22 (Tex. App.–Houston [14th Dist.] Oct. 23,
2008, no pet.) (mem. op., not designated for publication).
In
Richardson, a nearly identical case, we held that “Rule 606(b) of the
Texas Rules of Evidence, as applied, does not constitute a violation of [the
defendant’s] right to trial by jury as mandated by article I, section 15 of the
Texas Constitution nor of his right to a fair and impartial jury as provided by
the Sixth Amendment of the United States Constitution.”  Richardson v. State,
83 S.W.3d 332, 362 (Tex. App.–Corpus Christi 2002, pet. ref’d) (citing Hines
v. State, 3 S.W.3d 618, 622-23 (Tex. App.–Texarkana 2000, pet. ref’d); Sanders
v. State, 1 S.W.3d 885, 888 (Tex. App.–Austin 1999, no pet.)).  Moreover,
in Soliz, our analysis was clear:
In Texas, the
right to a fair and impartial trial is guaranteed by Tex. Const. art. 1, § 15 (Vernon 1984) and Tex. Gov't Code Ann. § 62.105 (Vernon 1987).
Tex. Const. art. 1, § 15 states,
in relevant part, that “the right of trial by jury, shall remain inviolate,”
and that our legislature may pass laws needed to regulate this right and to
maintain “its purity and efficiency.”  Appellants received a trial by jury. 
Their complaints stem from the jury's deliberative process.  In fact, Tex. Gov't Code Ann. § 62.105
prevents a person from serving as a juror if that person has a bias or
prejudice in favor of or against a party.  The legislature and Supreme Court
have adopted Rules 327(b) and 606(b) which state under what conditions a new
trial can be received on the basis of jury misconduct.  This is nothing more
than an attempt to promote the “purity and efficiency” of the jury system. We
hold, therefore, that rules 606(b) and 327(b) did not deny appellants their
right to a fair and impartial trial by jury.
 
Soliz, 779 S.W.2d at 935.  Accordingly, we
overrule McQuarrie’s third, fourth, and fifth issues.
III.  Conclusion
Finding
no meritorious issues on appeal, we affirm the trial court’s judgment.
 
________________________
GINA
M. BENAVIDES,
Justice
 
Do not publish.
Tex. R. App.
P.47.2(b).
 
Delivered and filed the
14th day of April, 2011. 
 

