
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-514 CR

____________________


FREDDIE LEE THOMAS, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 00-08-05296-CR




O P I N I O N
	A jury found Freddie Lee Thomas guilty of one count of aggravated robbery and
one count of aggravated kidnapping.  The trial court assessed Thomas's punishment at
thirty-five years' confinement in the Texas Department of Criminal Justice, Institutional
Division for each count, with the sentences running concurrently.  Bringing a single issue,
Thomas asserts the trial court erred by denying his motion for new trial, which was based
on jury misconduct.  We affirm. 
	At Thomas's motion for new trial hearing, the trial court inquired whether defense
counsel would offer evidence other than that found in juror Rita Storm's affidavit, which
had been attached to the new trial motion.  The trial court also stated that it would allow
defense counsel to make whatever record she desired.  Thomas's counsel indicated she
would be offering additional evidence and then called juror Storm as a witness. 
	Storm testified that during deliberations, she was "pulled up" in her chair, an
experience that had been "physically painful."  In her affidavit attached to the new trial
motion, she did not assert that the experience was physically painful, but rather had stated,
"[T]he foreman, as a reenactment of the crime, even pulled me up against my wishes.  I
had said no but he pulled me out of my chair anyway." 
	At the hearing, Storm also testified that other actions in the jury room threatened 
or interferred with her ability to return a verdict based on the evidence and law. 
According to Storm, the jury's foreman and another juror "were always talking and
hollering at [her] at the same time . . . ."  Further, she stated that "everybody just started
hollering at the same time, beating on the table" and that one juror "jumped up from the
table and hit the table with her hand."  These events caused Storm to feel "totally stressed
out."  She further stated that after another hold out juror decided to vote guilty,  the jurors
in favor of a guilty verdict became "very violent" and she did not want to be in the jury
room any longer.  In addition, Storm also complained that the jury's foreman refused to
submit Storm's question to the Court. 
	Thomas contends that  these circumstances present a case of first impression as the
alleged jury misconduct was physical violence occurring during jury deliberations. 
Thomas further contends the violence, under the Rules of Evidence, constitutes an "outside
influence improperly brought to bear upon the juror." 
	The applicable statute is Rule of Evidence 606(b), which provides:
		(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 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; or (2) to rebut a claim that the juror was not
qualified to serve.

Tex. R. Evid. 606(b).

	In Golden Eagle Archery, Inc. v. Jackson,  24 S.W.3d 362 (Tex. 2000), the Texas
Supreme Court observed that the rules contemplate that an "outside influence" must
originate "from sources other than the jurors themselves."  Golden Eagle Archery,  24
S.W.3d at 370.  The Golden Eagle Archery Court also concluded that Rule 606(b)
prohibits the consideration of testimony about matters and statements occurring in the
course of the jury's formal deliberations.  Id. at 373-74. 
	Here, neither Storm's testimony nor her affidavit reveal any outside influence that
was improperly brought to bear on any juror.  The actions alleged to constitute an outside
influence have as their source the jurors themselves and further are matters that occurred
during formal deliberations.
	Of course, assault would not constitute part of formal jury deliberations.  In Golden
Eagle Archery, the Court described "jury deliberations" as "when the jury weighs the
evidence to arrive at a verdict."  24 S.W.3d at 371.  Under that definition, the jury is not
deliberating while one juror is assaulting another.  However, the trial court is the sole
judge of the credibility of the testifying jurors.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex.
Crim. App. 1995).  We view the evidence adduced at the hearing in the light most
favorable to the trial court's ruling.  See Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim.
App. 1997).  The trial court could have disbelieved the juror's testimony.  Here, the trial
judge heard testimony from which the judge could have concluded that the jury was only
engaged in heated -- though perhaps overheated -- deliberations, and properly could have
concluded that the testimony was therefore inadmissible under Rule 606(b).    
	The trial court did not abuse its discretion by overruling Thomas's motion for new
trial.  Thomas's sole issue is overruled.  Accordingly, we affirm the trial court's judgment.
	AFFIRMED.
								PER CURIAM
Submitted on July 19, 2002  
Opinion Delivered August 14, 2002
Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.
