            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0803-11



                          THOMAS MCQUARRIE, Appellant

                                              v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                        GONZALES COUNTY

     C OCHRAN, J., filed a dissenting opinion in which K ELLER, P.J., and P RICE and
W OMACK, JJ., joined.

                                       OPINION

       I respectfully dissent. The statements in the juror affidavits offered in this case may

constitute “extraneous prejudicial information” under Federal Rule 606(b), but the Texas

Supreme Court deliberately did not adopt that exception to the general prohibition against

jurors impeaching their own verdict in Texas Rule of Evidence 606(b). We do not have the

authority to read that exception into the rule by ourselves.

       Historically, once an English trial was over, the advocates commenced to “try the
                                                                     McQuarrie     Dissent    Page 2

jury,” by harassing and cajoling them into admitting that they or another juror had

misbehaved in some respect during the trial. This practice came to an abrupt end when Lord

Mansfield declared, in 1785, that English courts could not consider juror affidavits or

testimony attesting to their own misconduct during jury deliberations.1 Lord Mansfield’s

rule, that “jurors may not impeach their verdict,”2 found widespread acceptance in the United

States as well.3

       Early Texas decisions followed Lord Mansfield’s prohibitory rule religiously,4 but,

in 1905, the Texas Legislature adopted an exception to that rule, giving trial courts discretion

to receive juror testimony about their misconduct during deliberations.5 Given this unfettered

discretion, the pendulum began to swing, and Texas courts soon allowed “a far wider scope

of inquiry into the jury’s deliberations than any other state.” 6 Frequently, the jury’s verdict




       1
           Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785).
       2
           Id.
       3
           See 8 JOHN WIGMORE , EVIDENCE § 2352 (McNaughton rev. 1961).
       4
           See St. Louis S.W. Ry. Co. v. Ricketts, 70 S.W. 315, 317 (Tex. 1902) (stating that court
had “uniformly denied the competency” of juror affidavits or testimony to attack the jury’s
verdict based on claims of “irregularities and improprieties of different kinds”; rejecting juror
affidavits that said foreman told deliberating jurors that he had lived near depot that was subject
of litigation and that it was not heated or lit, thus plaintiffs’ testimony was true and defendant’s
witnesses’ conflicting testimony was false).
       5
         See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 367 (Tex. 2000) (discussing
the history of TEX . R. EVID . 606(b)).
       6
           1 C. MCCORMICK & R. RAY , TEXAS LAW OF EVIDENCE § 397, at 338 n.73 (2d ed. 1956).
                                                                  McQuarrie     Dissent    Page 3

was being reversed for “trivial misconduct.”7 Sure enough, the pendulum swung back. In

1983, the Texas Supreme Court adopted Rule 606(b), which generally bars post-verdict juror

affidavits or testimony to attack the validity of its verdict. In 1998, when the civil and

criminal evidentiary rules were merged, Rule 606(b), as promulgated by the Texas Supreme

Court, became applicable to criminal cases as well as civil cases. Our interpretation and

application of that rule should follow that of our state supreme court.

       Rule 606(b) serves several important public policy interests. First, as the United

States Supreme Court has stated, it protects jurors from harassment:

       [L]et it once be established that verdicts solemnly made and publicly returned
       into court can be attacked and set aside on the testimony of those who took
       part in their publication, and all verdicts could be, and many would be,
       followed by an inquiry in the hope of discovering something that might
       invalidate the finding. Jurors would be harassed and beset by the defeated
       party in an effort to secure from them evidence of facts which might establish
       misconduct sufficient to set aside a verdict.8

Second, it protects the sanctity of the jury deliberation room and thereby encourages the

jurors to engage in full and frank discussions.9 Jurors would be hesitant to express their

opinions freely if they thought that their statements would later be held up for public




       7
           See id. § 394, at 332.
       8
           McDonald v. Pless, 238 U.S. 264, 267 (1915).
       9
         Id. at 267-68 (discussing need to prevent “what was intended to be private deliberation”
from being made subject to public scrutiny “to the destruction of all frankness and freedom of
discussion”).
                                                                   McQuarrie     Dissent    Page 4

scrutiny.10 Third, allowing jurors to attack their own verdicts would undermine the finality

of judgments.11 Judges “would become Penelopes, forever engaged in unraveling the webs

they wove.”12 Fourth, allowing jurors to attack the integrity of their verdicts would invite

tampering with the process.13 For example, a juror who reluctantly joined a verdict may be

sympathetic to later overtures by the losing party to view his earlier consent as being based

upon impermissible considerations.14

       At bottom, the best justification for Rule 606(b) prohibiting jurors from impeaching

their own verdicts is that the rule protects a good system that cannot be made perfect. As the

Supreme Court stated, “There is little doubt that postverdict investigation into juror

misconduct would in some instances lead to the invalidation of verdicts reached after


       10
          See Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987) (noting that a “fruitful
exchange of ideas and impressions among jurors” depends upon “some assurance that what is
said in the jury room will not reach a larger audience”).
       11
         Tanner v. United States, 483 U.S. 107, 120 (1987) (allegations of juror misconduct
during deliberations would “seriously disrupt” finality).
       12
           Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947) (Judge
Learned Hand) (“[I]t would be impracticable to impose the counsel of absolute perfection that no
verdict shall stand, unless every juror has been entirely without bias, and has based his vote only
upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts
would stand such a test; and although absolute justice may require as much, the impossibility of
achieving it has induced judges to take a middle course, for they have recognized that the
institution could not otherwise survive; they would become Penelopes, forever engaged in
unravelling the webs they wove. Like much else in human affairs, its defects are so deeply
enmeshed in the system that wholly to disentangle them would quite kill it.”).
       13
          See United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976) (purpose of rule is to
prevent “fraud by individual jurors who could remain silent during deliberations and later assert
that they were influenced by improper considerations”).
       14
            Id.
                                                                   McQuarrie      Dissent    Page 5

irresponsible or improper juror behavior. It is not at all clear, however, that the jury system

could survive such efforts to perfect it.” 15

       On the other hand, the rule exacts great costs as well. Verdicts that are based upon

information and opinions that have not been introduced into evidence, a misunderstanding

of the applicable legal principles, or the influence of threats or bribes are unfair to the losing

party.16 Rule 606(b) is an attempt, albeit imperfect, to strike an appropriate balance between

the need the protect jurors, the verdict, and the sanctity of juror deliberations against the

strongly competing desire to rectify a verdict tainted by irregularity.

       Because of the high cost of insulating a verdict tainted by irregularity, Federal Rule

606(b)17 created two narrow exceptions to the prohibition against post-verdict juror affidavits

and testimony. A juror may testify to whether (A) “extraneous prejudicial information was


       15
            Tanner, 483 U.S. at 120.
       16
        1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE : CIVIL AND
CRIMINAL, § 606.2, at 535 (Tex. Prac. Series 1993).
       17
            Federal Rule 606(b) reads as follows:
(b) During an Inquiry Into the Validity of a Verdict or Indictment.
 (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 about whether:
       (A) extraneous prejudicial information was improperly brought to the jury’s attention;
       (B) an outside influence was improperly brought to bear on any juror; or
       (C) a mistake was made in entering the verdict on the verdict form.
                                                                  McQuarrie     Dissent    Page 6

improperly brought to the jury’s attention,” or whether (B) “an outside influence was

improperly brought to bear on any juror[.]”18 These exceptions deal with very different

situations and should not be confused. They are not interchangeable.

       The first, “extraneous prejudicial information,” refers to any information that is

“conveyed to the jury through extrarecord sources,”19 unless that information is common

knowledge in the community. Such information frequently could have been, but was not,

introduced as evidence at trial. The problem with anyone, juror or non-juror, providing this

extrarecord material is that the parties do not have an opportunity to meet, rebut, or explain

that information which may, or may not, be accurate.20 Under this exception, juror affidavits

and testimony that admit to reading newspaper articles, listening to radio programs, or

watching television reports about the trial may be offered to attack the validity of the

verdict.21 A juror’s affidavit concerning his or another juror’s conduct of looking up


       18
         A third exception, whether “a mistake was made in entering the verdict on the verdict
form,” was adopted in 2006 to permit juror affidavits and testimony to prove a clerical error in
recording the verdict. See FED . R. EVID . 606(b) advisory committee’s note on 2006 amendments.
       19
         3 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 249, at
70 (2d ed. 1994) (“MUELLER”).
       20
            Id. at 71.
       21
          See, e.g., Mattox v. United States, 146 U.S. 140, 149-51 (1892) (trial judge erred in
excluding juror affidavits admitting to reading a newspaper article during deliberations stating
that defendant had been tried for his life once before, that the evidence against him was very
strong, that the argument of the prosecution was such that defendant’s friends gave up all hope,
and that the jury’s deliberations would probably not last over an hour) MUELLER, supra note 19,
at 71 (“The exception allows proof that one or more members of the jury brought to trial specific
personal knowledge about the party or controversy or acquired such knowledge from sources
outside the courtroom during trial or deliberations, often by way of media sources (newspaper,
                                                                    McQuarrie     Dissent    Page 7

prejudicial information about the parties or the trial on the Internet and reporting his findings

back to other jurors may be admissible under this particular exception.22

       The second exception, an “outside influence” improperly brought to bear on a juror,

refers to those blatant, subtle, or even unconscious acts by outsiders to affect the verdict or

interfere with the deliberations. In simple terms, it refers to jury tampering.23 Obviously, a

juror’s affidavit or testimony concerning someone’s attempts to bribe, blackmail, or threaten

any juror would qualify under this exception.24 Inadvertent, but improper, statements by a




radio, television).”) (footnotes omitted).
       22
          See Stebner v. Assoc. Materials, Inc., 234 P.3d 94, 98 (Mont. 2010) (juror’s affidavit
admitting that she conducted and shared internet research on the term “preponderance” prior to
jury reaching verdict in breach of warranty case could be considered in deciding whether her
research constituted extraneous prejudicial information that was improperly brought to jury’s
attention; concluding that it was not prejudicial and did not affect jury’s verdict); cf. State v.
Patino, 699 S.E.2d 678, 684 (N.C. Ct. App. 2010) (“Extraneous prejudicial information is
‘information dealing with the defendant or the case which is being tried, which information
reaches a juror without being introduced in evidence.’ Dictionary definitions of legal terms
researched and read to the jury by the foreperson are not extraneous prejudicial information and
cannot be used to impeach a jury’s verdict.”) (citations omitted).
       23
           McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (while the prohibition against post-
verdict juror affidavits or testimony “may often exclude the only possible evidence of
misconduct, a change in the rule ‘would open the door to the most pernicious arts and tampering
with jurors.’ ‘The practice would be replete with dangerous consequences.’ ‘It would lead to the
grossest fraud and abuse’ and ‘no verdict would be safe.’”) (citations omitted).
       24
          See Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a criminal case, any
private communication, contact, or tampering directly or indirectly, with a juror during a trial
about the matter pending before the jury is, for obvious reasons, deemed presumptively
prejudicial”); Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947)
(“bribery” of juror is a matter on which juror affidavits may be received).
                                                                  McQuarrie     Dissent    Page 8

bailiff to the jury25 or protesters marching outside the courthouse with threatening signs

might also qualify if they are likely to affect the jury’s verdict.

       The drafters of the Texas Rules of Civil Evidence recommended that the Supreme

Court adopt Federal Rule 606(b) verbatim, thus including the two exceptions to the general

prohibition against juror affidavits or testimony to attack the validity of the verdict.26 But the

Texas Supreme Court intentionally deleted the “extraneous prejudicial information”

exception.27      “Although it offered no explanation for its action, the most plausible

explanation is that the Court was consciously trying to curtail the widespread, and widely

criticized, practice of ‘trying the jury.’”28 Professors Goode, Wellborn, and Sharlot (all three

of whom had been on the Liaison Committee that drafted the 1983 rules), explain that, if the

Supreme Court had “retained the malleable ‘extraneous prejudicial information’ exception,

lawyers would still have had a strong incentive to contact jurors after a verdict was

rendered.”29 Indeed, that is precisely what happened in criminal cases when this Court




       25
           See United States v. Greer, 620 F.2d 1383, 1385-86 (10th Cir. 1980) (jurors could
testify to lunch break conversation with deputy marshal who told them about terms and effects of
Youth Corrections Act and different types of possible sentencing).
       26
          See S. GOODE ET AL. supra note 16, § 606.2, at 540. Professors Goode, Wellborn, and
Sharlot explain, “As proposed by the Liaison Committee, Texas Civil Rule 606(b) would have
contained both the ‘extraneous prejudicial information’ and ‘outside influence’ exceptions.”
       27
            Id.
       28
            Id.
       29
            Id.
                                                                     McQuarrie      Dissent    Page 9

enacted its vague and amorphous exception to Rule 606(b) in 1986.30 It was for that very

reason that this Court adopted the Supreme Court’s version of Rule 606(b) in 1998.31 Having

adopted the Supreme Court’s version of the rule, we ought not change its meaning and

content without first (1) consulting that court, and (2) changing the wording of the rule to

explicitly incorporate the federal exception for “extraneous prejudicial information.” Perhaps

it would be a good idea to amend Rule 606(b) to allow courts to consider juror affidavits and

testimony about a juror’s Internet research and her report of that research back to other

jurors. But until Rule 606(b) is formally amended, we are not free to do so informally.

       30
         Rule 606(b) of the Texas Rules of Criminal Evidence read as follows:
       (b) Inquiry Into Validity of Verdict or Indictment
       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 course of the jury’s
       deliberations or to the effect of anything upon his or any other juror’s mind or
       emotions as influencing him to assent to or dissent from the verdict or indictment
       or concerning his mental processes in connection therewith, except that a juror
       may testify as to any matter relevant to the validity of the verdict or indictment.
       Nor may his affidavit or evidence of any statement by him concerning a matter
       about which he would be precluded from testifying be received for these purposes.
This rule was deceptively worded and internally contradictory. First, it prohibits the jurors from
testifying to any matter occurring during its deliberations and then it contains an exception that
states that jurors may testify as to anything relevant to the validity of the verdict. That exception
completely swallowed the rule and “was the source of much confusion[.]”
       31
          GOODE ET AL., supra note 15, § 606.3, at 193 (2001 Supp.) (“New Rule 606(b) changes
dramatically the extent to which jurors may testify concerning the validity of a criminal verdict or
indictment. . . . Presumably, the Court of Criminal Appeals decided to align criminal practice
with civil practice.”); see Hines v. State, 3 S.W.3d 618, 621 (Tex. App.–Texarkana 1999, pet.
ref’d) (“[T]he rule in civil cases is now the rule in criminal cases: jurors may testify only to
whether any outside influence was brought to bear upon a juror.”); In re S.P., 9 S.W.3d 304, 308-
09 (Tex. App.–San Antonio 1999, no pet.) (noting that courts in criminal cases should look to
civil cases for guidance on what constitutes an “outside influence”; jury’s discussion about the
thickness of defendant’s probation file, which was not introduced into evidence, was not an
“outside influence”).
                                McQuarrie   Dissent   Page 10

      I respectfully dissent.

Filed: October 10, 2012
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