i          i      i                                                                  i       i      i




                                            OPINION

                                        No. 04-08-00771-CR

                                           Brian Pak CYR,
                                              Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 186th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008CR5916A
                          Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: December 16, 2009

AFFIRMED

           Brian Pak Cyr was found guilty of murdering Corey Baxter and was sentenced to

imprisonment for ninety-nine years and a $10,000 fine. On appeal, Cyr argues that (1) he suffered

egregious harm from the trial court’s failure to instruct the jury that the witness Dane Batterton was

an accomplice as a matter of law; (2) the trial court erred in denying his request for juror

information; and (3) the trial court erred in failing to hold a hearing on his motion for new trial. We

affirm.
                                                                                       04-08-00771-CR

                                           BACKGROUND

       In the early morning hours of March 5, 2007, Corey Baxter was brought to the garage of a

house on Chelmsford Street in San Antonio, Texas. He was then severely beaten by several different

individuals. He was hit over the head with a baseball bat and a brick, which caused him to suffer

severe head injuries. Baxter was hog-tied and wrapped in a rug and blanket. Dane Batterton, who

had been beaten in the same garage earlier after being accused by Cyr and others of stealing from

a woman, was then called into the garage from the house, handed a gun, and told to shoot Baxter in

the head. Batterton picked up the gun and shot Baxter. Batterton testified that he did so only because

he was afraid that he would “end up in the same spot Corey’s in.” Batterton then handed the gun

back and left the garage.

       One of the individuals in the garage recorded video images and photos on a cell phone that

Batterton later identified as one he had given Cyr. The video clips each last about fifteen seconds.

The first one shows Baxter walking into the garage, surrounded by several people, and then being

hit in the face, causing blood to run down his cheek. One video clip shows a man standing behind

Baxter, holding something similar to a baseball bat. The man appears to be about to swing the bat

toward Baxter. Another video clip shows Baxter lying on the garage floor, bloodied, and with severe

injuries to his head. Yet another video clip shows individuals hog-tying Baxter and wrapping him

in a rug. Still another video clip shows a blanket shoved in Baxter’s mouth as “duck” tape is being

wrapped around Baxter’s head and blanket. Cyr’s voice can be heard on the video clips.

       Clifford Vansycke, an accomplice witness, testified that he was frequently called by Cyr and

others to help them “discipline” certain individuals and considered himself, at 6' 4" and 330 lbs., to

be “the unofficial enforcer of the group.” On the day of the murder, Vansycke was using crystal



                                                 -2-
                                                                                                      04-08-00771-CR

methamphetamines with Rudy Hettler, Bobby Cruz, Terry Adams, and a few others. According to

Vansycke, Adams told him that Corey Baxter “had confided in him [Adams] that he [Baxter] was

hired by . . . Rudy Hettler to take out Bobby Cruz.”1 About forty-five minutes later, Vansycke saw

Adams talking with both Hettler and Cruz. According to Vansycke, Adams was “telling them the

story.” Vansycke testified that both Hettler and Cruz were upset:

         We’re all a group of friends. We all hung out together. We all did dope together. We
         all did a lot of things together. But all of a sudden now one guy is claiming that he’s
         supposedly – you know, supposedly some – one person is supposed to be taking out
         another person. That’s just not what happens with friends. That’s not supposed to
         happen with friends.

According to Vansycke, “[t]here was talk about – about disciplining [Baxter].” When Vansycke,

Hettler, and another man named Justin Berban got to the house on Chelmsford, Corey Baxter and

Lupe Villarreal were standing at the front door of the house. John Boyer opened the door, and

everyone went straight to the garage because “[t]hat’s where we always hung out.” On his way to

the garage, he noticed Batterton in the living room. According to Vansycke, Batterton looked like

he had been beaten: one of his eyes and his cheeks were swollen.

         Cruz, Michael Yaws, and Yaws’s girlfriend Michelle were already in the garage. Cyr then

came in with a large group of people. Vansycke testified that at that point, he thought that they were

going to “discipline” Baxter and that he was going to be the person to do it:

         Well, I started circling around. I guess it’s right at the point I was getting ready to
         start hitting on [Baxter] . . . when the door opened up and in walked [Cyr] and
         everybody else. That’s when the whole group showed up. And at that point, that’s
         when I decided I didn’t need to have anything to do with this. I went ahead – you
         know, I had taken my jacket off, taken my shirt off. I was in a tank top. I was – like
         to – getting ready to beat on him. When everybody walked in, I was like, no, no. This
         ain’t me. I’m not going to do anything. I’m not going to touch this dude. . . I’ve been


         1
          … Vansycke also testified that Cruz was upset with Baxter because he believed Baxter was the reason his little
brother had been beaten by some other gang members.

                                                          -3-
                                                                                        04-08-00771-CR

        around. I’ve seen what happens when groups get into a frenzy. . . . And I didn’t feel
        that was necessary. I mean, one person beating up on a guy . . . I mean, he wasn’t a
        very big guy. That’s one thing. But a whole group beating up on him? Wasn’t
        needed.

According to Vansycke, the first person he saw hit Baxter was Villarreal. Villarreal hit Baxter on his

right cheek. As Vansycke was putting his shirt back on, he saw “Bobby Cruz pick up a baseball bat.”

Vansycke heard the hit and turned to see Baxter on the ground. “It sounded kind of like a golfball

being struck.” According to Vansycke, Baxter was looking at him with his eyes “glazed over” - “the

lights were on but no one was home.”

        From the video clips, Vansycke identified Cyr as the person with black clothing, yellow shirt,

and white shoes. Vansycke testified that a voice heard on the video clips belonged to Cyr. According

to Vansycke, on the video clips, Cyr made the following audible statements: “You’re a bitch, bro”;

“It’s not between you and him”; “Tony Montana, say hello to my little friend”; and “Hey, look at me,

bitch. We spit on our enemies.” Vansycke also testified that a still from one of the video clips depicts

Cyr’s hands in latex gloves holding a rope.

        According to Vansycke, when Michael Yaws started hog-tying Baxter, he and Hettler left.

Vansycke also testified that one of the video clips shows Cyr with his left foot on Baxter’s head as

Yaws is tying Baxter up.

        Vansycke testified that a few hours after he and Hettler had left the house on Chelmsford,

they returned because they had Justin Berban’s truck and Berban had called saying he was hungry.

Vansycke went into the garage and gave Berban a hamburger. When he went into the garage,

Vansycke noticed that Baxter had been moved from right by the door leading to the house to the big

garage door. According to Vansycke, Baxter was on a “carpet or tarp or something” and looked




                                                  -4-
                                                                                       04-08-00771-CR

significantly worse, but was still alive. Besides the bat, Vansycke thought that a brick in the garage

had been used on Baxter:

       I had been asked to hold another video – a little video recorder. And on it, it showed
       Michael Yaws throwing that brick. Winding up and then throwing it directly at his
       face. And [Baxter] was already on the ground. I mean, he was tied up. There was no
       way he could come close to defending himself.

According to Vansycke, Hettler asked him to hold on to the recording “as insurance” for a little

while. He then left with Hettler, Berban, and Cruz.

       Baxter’s body, still hog-tied and wrapped in rugs, was later discovered in a lot next door to

a fruit stand. Cyr, along with many others, was indicted for Baxter’s murder. Cyr was confined in

jail pending his trial, and his former cellmate, Billy Schaef, testified at trial. According to Schaef,

Cyr told him about Baxter’s murder. Cyr said that Hettler used a blow torch on Baxter; Cruz used

a baseball bat; and Batterton shot Baxter. Cyr said that he made Batterton shoot Baxter:

       [Cyr] said that he went and got the gun from Bobby [Cruz]. He gave [Cruz] a hug.
       He pulled the gun out of [Cruz’s] pocket. [Cruz] didn’t know [Cyr] got the gun, but
       [Cyr] pulled the gun out of [Cruz’s] pocket. [Cyr] said he went back into the garage,
       pulled out his gun, put that gun on the thing and told Dane [Batterton], “You shoot
       him. And if you don’t shoot him, you’re not leaving this garage.” Dane [Batterton]
       picked up the gun, shot [Baxter], put the gun down and said, “Can I go?”

Schaef testified that the gun Batterton used was later found on Cruz and that Cruz did not know his

gun had been used to shoot Baxter.

       At trial, the medical examiner testified that Baxter died as a result of a blunt-force injury to

his head and neck, and a gunshot wound to his head. According to the medical examiner, she could

not distinguish whether it was the blunt-force injury or the bullet wound that caused Baxter’s brain

injury. The medical examiner testified that a gunshot wound to the brain is usually bloodier than




                                                  -5-
                                                                                       04-08-00771-CR

Baxter’s was, which indicated that Baxter had very low blood pressure and had maybe even been in

physiologic shock before he was shot.

       At trial, Cyr was found guilty of murder. He now appeals.

               ACCOMPLICE AS A MATTER OF FACT OR AS A MATTER OF LAW ?

       Cyr argues that the trial court erred in failing to instruct the jury that Dane Batterton was an

accomplice as a matter of law. With respect to Batterton, the trial court instructed the jury that it

should determine whether Batterton was an accomplice:

       Now, if you believe from the evidence beyond a reasonable doubt that an offense was
       committed and you further believe from the evidence that the witness, Dane
       Batterton, was an accomplice, or you have a reasonable doubt whether he was an
       accomplice, as that term is defined in the foregoing instructions, then you cannot
       convict the defendant upon the testimony of Dane Batterton unless you first believe
       that the portion of the testimony of Dane Batterton [that] ascribes guilt to the
       defendant is true and that it shows the defendant is guilty as charged in the
       indictment; and even then you cannot convict the defendant unless you further
       believe that there is other evidence in the case, outside of the evidence of Dane
       Batterton, tending to connect the defendant with the commission of the offense
       charged in the indictment, and then from all the evidence you must believe beyond
       a reasonable doubt that the defendant is guilty.

Because Cyr failed to object to the charge, to be entitled to reversal of the judgment, Cyr must show

that an erroneous charge resulted in egregious harm. Druery v. State, 225 S.W.3d 491, 504 (Tex.

Crim. App.), cert. denied, 128 S. Ct. 627 (2007).

       “One who participates with the defendant before, during or after commission of the crime

for which the defendant is on trial is an accomplice as a matter of fact.” Ex parte Zepeda, 819

S.W.2d 874, 875-76 (Tex. Crim. App. 1991) (emphasis added); see Cocke v. State, 201 S.W.3d 744,

748 (Tex. Crim. App. 2006) (“An accomplice is an individual who participates with a defendant

before, during, or after the commission of the crime and acts with the requisite culpable mental

stated.”), cert. denied, 549 U.S. 1287 (2007). One who is indicted for the same offense with which


                                                 -6-
                                                                                       04-08-00771-CR

the defendant is charged, or indicted for a lesser-included offense based upon alleged participation

in commission of the greater offense, is an accomplice as a matter of law. Id. at 876. A witness is

also an accomplice as a matter of law when the evidence is uncontradicted or so one-sided that a

reasonable juror could not disagree with the determination that the witness is an accomplice. See

Silba v. State, 161 Tex. Crim. 135, 136, 275 S.W.2d 108, 109 (1954) (explaining that (1) if all the

evidence shows that the witness is answerable to the law as a principal or accomplice to the crime

or if he has been indicted as such, then he is an accomplice witness as a matter of law; (2) if there

is a conflict in the evidence, then the question of whether the witness is an accomplice should be

submitted to the jury; and (3) if there is not sufficient evidence to support a charge against the

witness as either a principal or accomplice, then he is not an accomplice witness). Thus, when the

evidence clearly shows that the witness is an accomplice witness as a matter of law, the trial court

has a duty to so instruct the jury. See Druery, 225 S.W.3d at 498. However, if the evidence presented

by the parties is conflicting and there is doubt about whether a witness is an accomplice, the trial

court has no duty to instruct the jury that a witness is an accomplice witness as a matter of law. See

id. Instead, the trial court “should allow the jury to decide whether the inculpatory witness is an

accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’” Id. at 498-

99. And, if there is doubt about “whether a witness is an accomplice witness, the trial court may

submit the issue to the jury even though the evidence weighs in favor of the conclusion that the

witness is an accomplice as a matter of law.” Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App.

1986).

         We cannot say from the record before us that the evidence without doubt shows that

Batterton was an accomplice witness as a matter of law or that the jury was unreasonable in



                                                 -7-
                                                                                                         04-08-00771-CR

concluding that Batterton was not an accomplice witness. See Arney v. State, 580 S.W.2d 836, 839

(Tex. Crim. App. 1979) (holding that the trial court did not err because the evidence did not show

without doubt that the witness was an accomplice witness as a matter of law or that jury was

unreasonable in concluding that witness was not an accomplice), abrogated in part on other grounds

by Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998); Gallardo v. State, 281 S.W.3d 462,

470 (Tex. App.—San Antonio 2007, no pet.) (holding (1) because the witness was not charged and

the evidence did not clearly show that she could have been indicted for the same offense, she was

not an accomplice as a matter of law, and (2) the trial court properly instructed the jury to decide

whether the witness was an accomplice witness because although there was some evidence the

witness may have committed an act that promoted the commission of one of the offenses, a

reasonable jury could have found that the witness did not participate in, solicit, encourage, direct,

or aid in the commission of the offenses, or did not do so with the required intent). First, Batterton

was not charged with murder or any lesser-included offense. Second, although Batterton admitted

that he shot Corey Baxter in the head, he claimed that he did so because he feared for his own safety

and that of his family.2 When a witness claims his complicity in a crime was due to coercion or

duress, a factual question is presented for the jury regarding whether the witness is an accomplice.

See Marlo v. State, 720 S.W.2d 496, 500 (Tex. Crim. App. 1986) (“[I]f a State’s witness implicates

himself, his statement that his participation was compulsory raises the issue of fact as to whether his

testimony is or is not that of an accomplice witness.”) (quoting Easter v. State, 536 S.W.2d 223, 226

(Tex. Crim. App. 1976)); State v. Trevino, 930 S.W.2d 713, 715 (Tex. App.—Corpus Christi 1996,


         2
           … Pursuant to section 8.05 of the Texas Penal Code, an actor who commits a criminal offense under duress
has an affirmative defense to prosecution. See T EX . P EN AL C O D E A N N . § 8.05(a) (Vernon 2003). One acts under duress
if he “engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily
injury to himself or another.” Id.

                                                            -8-
                                                                                        04-08-00771-CR

pet. ref’d) (recognizing that “while it is true that a witness who claims his complicity in a crime was

due to coercion or duress is not necessarily an accomplice,” coercion or duress did not apply to the

facts of the case because coercion or duress must include “force or threat of force”); Alexander v.

State, No. 01-98-00506-CR, 1999 WL 977815, at *4 (Tex. App.—Houston [1st Dist.] 1999, pet.

ref’d) (holding that the trial court did not err in failing to instruct the jury that the witness was an

accomplice as a matter of law because whether a witness “acted under duress, and therefore whether

he was an accomplice, was a fact question”) (not designated for publication).

       Here, Batterton testified that on March 4, 2007, he was twenty-five years old and had been

using methamphetamine since he was fifteen years old. He had been living with an older woman

named Jean Ball and other people who also used methamphetamine. According to Batterton, “[i]t

was kind of like an open door type of thing.” Batterton testified that on the morning of March 4,

2007, Jean’s laptop, $800 in cash, and a couple of digital cameras were missing, which made Jean

upset and caused her to spend a couple of hours looking for them. Batterton had to leave to pick up

his daughter, but he told Jean before he left that he did not take anything and asked her not to believe

he had because he was leaving. Late that night at about 2:00 a.m., Batterton was at a friend’s

apartment sitting on the couch after smoking marijuana when he heard a knock on the door. His

friend answered the door and then told Batterton some people where there for him. Batterton testified

that Cyr, John Boyer, and J.C. were at the door and began asking him about Jean’s missing

computer, cash, and cameras. Cyr wanted to know where Jean’s belongings were and told Batterton

that he had “stole from the wrong lady.” Cyr, Boyer, and J.C. took Batterton to the house on

Chelmsford and escorted Batterton into the garage. Telling Batterton that he was a bad guy and had

stolen from a crippled old lady, the men, who had now been joined by Lupe Villarreal, began beating



                                                  -9-
                                                                                        04-08-00771-CR

Batterton with their fists and kicking his head. Michael Yaws then came into the garage with another

man. Cyr told Yaws that Batterton had stolen from a little old lady. According to Batterton, Yaws

“is carrying like some kind of – at one point he brought some kind of like metal pole inside a wooden

stick.” “Sometime shortly after that, guns start to appear,” and “[t]hings are starting to get a little

more intense.” Somebody raised Batterton’s arm above his head so Yaws “could take a few good

shots at [his] rib cage.” Batterton was then “hit over the back of the head with something [he didn’t]

think was a fist, but [he] didn’t see it coming and [he] hit the floor.” Bobby Cruz appeared at one

point and took turns with someone else hitting Batterton. When Batterton was lying on the floor,

Yaws’s girlfriend said, “He doesn’t look like he’s going to take much more of this.” “[T]hat’s when

they decided to tie [Batterton’s] hands behind [his] back, feet tied together, and then tie those

together . . . hog-tied.” Batterton testified that Cyr then put a gun to his head and threatened him:

       It was – the thing that came out of it was – well, since – because I don’t have the
       computer, and I don’t have the money, and I don’t have the cameras, and they had to
       put in work to come get me and beat me up and do all this stuff, that I owe each one
       of those guys [who were] there $500, plus the money for the computer, which is
       about a thousand dollars. And it came to a total of $5,000.

Cyr told Batterton that if he did not come up with $5,000 in twenty-four hours, he “was dead.”

       John Boyer then took Batterton upstairs to clean up and take a shower. Batterton’s shirt and

jeans had his blood all over them, so they took his clothes and gave him some clean clothes. They

then put Batterton on the couch downstairs, telling him to start working on coming up with $5,000.

Batterton thought about escaping, but decided not to because he did not know the area very well, it

was the middle of the night, he had no money and no phone, and even if he ran out of the home, he

did not have a ride. Batterton testified, “I don’t have any way to get out of that part of town, and I’m

going to be found and it’s going to be even worse.” Further, according to Batterton, he was also in



                                                  -10-
                                                                                       04-08-00771-CR

and out of consciousness from his head injuries. After sleeping for about three hours, he called his

daughter’s mother who said she would try to find him some money. Batterton called his father who

said he would not help. Yaws then took Batterton to a grocery store and told him to fraudulently cash

a money order:

       [T]he people just looked at me at the customer service center at [the grocery store]
       like I was an idiot. I’m beat up and bruised, and with an I.D. that’s not mine – you
       can tell it’s not me – trying to cash a money order. So, that’s not working at all.

Batterton then remembered that a friend owed him money, so Cyr took Batterton to the friend’s

house. The friend gave Batterton a phone with six months or a year’s worth of service on it.

Batterton asked Cyr if he would take the phone in lieu of some of the money owed. Cyr said that he

would deduct $500 from the total amount owed. This phone was the one that was found by police

and contained images of Baxter being beaten.

       Cyr then took Batterton to a hotel room where Bobby Cruz asked him how he was going to

get the rest of the money. Batterton eventually ended up back on the couch at the Chelmsford house

in the early evening hours of March 5, 2007. Cyr, Villarreal, Hettler, John Boyer, Yaws, and Yaws’s

girlfriend were in the garage. At some point, Batterton saw Baxter and Cruz come into the house and

head straight for the garage. Batterton testified that he was the only one in the house, but every once

in a while someone would come in from the garage to see what he was doing. Batterton then fell

asleep on the couch. When he awoke, he wanted a cigarette and walked towards the garage door. As

he was getting close to the door, it opened and Villarreal came in and told him that he could not go

into the garage. Batterton heard raised voices coming from the garage. He asked Villarreal if he

could have a cigarette. Villarreal went back into the garage and got Batterton a cigarette. Batterton

then smoked a couple of cigarettes on the back porch and went back to sleep on the couch.



                                                 -11-
                                                                                      04-08-00771-CR

       Batterton testified that he did not leave the house because even though someone was not

“keeping a direct eye on [him] at that point,” he was completely out of options. He did not want to

bring any more harm to anyone else and did not want his family involved: “At this point, I’ve already

involved my mom, my dad, my daughter, my daughter’s mom, and I didn’t want it to go any further.”

       Batterton was awakened by Villarreal who told him to come into the garage. According to

Batterton, when he stepped into the garage, he saw blood everywhere and Baxter lying on the ground

being rolled into a carpet by Villarreal and Yaws. Batterton testified that he could hardly recognize

Baxter because there was blood all over his beaten face. Baxter was not talking, but was making

gurgling sounds like he could barely breathe. Cyr, with a gun on his lap, was sitting on a bench seat

that had been removed from a Suburban or van and was giving directions, “like he was the boss

telling his employees what to do.” Batterton testified that Cyr then told Yaws to give the gun to

Batterton because Batterton was going to shoot Baxter. Batterton thought to himself, “I better do it

or I’m – I’m not going to make it out of this garage.” Villarreal was “holding the carpet up at an

angle and like squeezing around where [Baxter]’s head [was] . . . to get him to stop making those

noises.” Yaws pointed to a box of gloves and told Batterton to put one on in case blood sprayed out.

Batterton put on one of the latex gloves, but Cyr told him to take the glove off because he wanted

Batterton “to feel it.” Yaws had the gun in his hand and told Batterton to come over there. Yaws put

one bullet in the chamber. Batterton grabbed the gun and stuck his hand “towards the opening of the

carpet where [he] assumed [Baxter]’s head was.” Yaws then grabbed his hand and pushed it further

down. Batterton then pulled the trigger, and the gun fired. Batterton turned around, and Cyr had this

“grin on his face – kind of looked like, ‘Well, how did that make you feel? Did that – did it feel

good?’”



                                                -12-
                                                                                        04-08-00771-CR

       And I sure wasn’t going to say, “Oh, no, it felt horrible.” Because I’m thinking if I’m
       going against what’s happening in this garage, I’m going to end up in the same spot
       he’s in, [Baxter]’s in. So rather than say anything, I just kind of shrugged. You know,
       like it wasn’t anything to me. That’s not how I felt.

Batterton testified that he shot Baxter because he “didn’t want to end up next to him in the same

position.” Batterton later helped Cyr, Villarreal, and Yaws load Baxter’s body into the Suburban.

Cyr, Villarreal, and Yaws discussed where to leave the body, and Cyr said, “I’ve got a spot.” They

then left, and someone stayed to watch Batterton. After about ten minutes, Cyr, Yaws, and Villarreal

returned to the house:

       At that point, the sun is starting – it’s real early in the morning. . . . Nobody has
       money for gas; nobody has money for drugs; nobody has money for anything. So the
       day’s going to be, again, about me getting this money. And [I] went to [a store] once,
       I think, to try to cash one of them money orders. Just anything to get the money is
       basically what [I] was being told. You know, scam [the store], cash a bad money
       order, whatever the case may be, till that evening.

Then, according to Batterton, they took him to a shopping center where they said that someone was

going to meet them. Batterton’s friend, Travis, and another man, Dan, met them at the shopping

center. Batterton testified that Dan was the one who had stolen the computer. Yaws and Villarreal

went with Dan to get Jean Ball’s computer. Cyr, J.C., and Batterton returned to the house to wait:

       And at that point . . . I’m off the hook because they figured out that Jean had just kind
       of revved up their engine and got them going, thinking I stole something that I didn’t
       steal. So now their – their view of it now is that I don’t owe them money; Jean should
       pay them because Jean had them go do some stuff that they didn’t really have to do.

Everyone then went to Jean Ball’s house to give her the computer back. Cyr and Yaws told Jean that

she owed them money for their trouble. Afterwards, Cyr and Yaws apologized to Batterton for

beating him up and asked him if he wanted to “hang out.” Batterton had talked to his daughter’s

mother, who had told him that she would pay for a bus ticket for him to come to Houston. His




                                                 -13-
                                                                                          04-08-00771-CR

daughter’s grandmother, who lived in San Antonio, then picked him up and drove him to the bus

station.

           Under Batterton’s version of events, he shot Baxter under duress. He had been beaten, hog-

tied, and told, with a gun to his head, that if he did not come up with $5,000 within twenty-four

hours he would be killed. He then saw Baxter come into the same house and go into the same garage

where Batterton had been beaten earlier. Later when Batterton was called into the garage, Baxter was

lying on the floor and being rolled into a carpet. He was bloodied, also hog-tied, and was making

gurgling sounds. Cyr then ordered Batterton to shoot Baxter. Batterton testified that he shot Baxter

because Cyr would have killed him if he did not do so. Whether Batterton acted under duress, as he

testified, or whether he was an accomplice, was a fact question for the jury. Hence, the trial court did

not err in failing to instruct the jury that Batterton was an accomplice as a matter of law.

                JUROR INFORMATION CARDS AND MOTION FOR NEW TRIAL HEARING

           In two separate issues, Cyr argues that the trial court erred in denying his request to review

juror information cards and in denying his motion for new trial without conducting a hearing. We

disagree.

           After the trial, Cyr filed a motion for new trial and a motion to view juror information.

Attached to Cyr’s motion for new trial was his counsel’s affidavit in which his counsel affirmed the

following:

           I was informed that one of the jurors in this case approached the media and alleged
           that she “was not comfortable with her verdict.” I confirmed the information with a
           representative of the media who substantiated that the information was true.
           Additionally, I was informed that the juror believed that the defendant was not guilty
           but later changed her verdict during jury deliberations for an unknown reason. A
           hearing is necessary to determine if that individual juror’s verdict was changed for
           any reason contrary to the instructions of this Court or law. Such a verdict would
           therefore not be a fair expression of that juror’s opinion.


                                                    -14-
                                                                                         04-08-00771-CR

Emphasizing the information contained within his counsel’s affidavit, Cyr argued in his motion for

new trial that the jury’s verdict was decided in a manner other than a fair expression of a juror’s

opinion. In his request to view juror information, Cyr argued that he needed the juror information

cards “to fully identify the juror and confer with the juror, if she is willing to communicate with

counsel.” According to Cyr, “[t]he communication with the jury is necessary for counsel to

determine if any reversible error occurred and if a new trial may be necessary.” The trial court denied

both motions without holding a hearing.

        Article 35.29 of the Texas Code of Criminal Procedure prohibits personal information about

jurors from being disclosed after trial unless good cause is shown. See TEX . CODE CRIM . PROC. ANN .

art. 35.29 (Vernon Supp. 2009). “On a showing of good cause, the court shall permit disclosure of

the information sought.” Id. Here, Cyr failed to show good cause. In his request for disclosure, Cyr

argued that a juror had told a member of the media that she “was not comfortable with her verdict,”

and that the member of the media had been able to identify the juror only as “Lisa.” Thus, Cyr argued

the “information contained on the juror’s information cards tendered to counsel at the time of voir

dire is necessary for counsel to fully identify the juror and confer with the juror, if she is willing to

communicate with counsel.” Such allegations, however, are not sufficient to show good cause.

        What constitutes good cause must be based upon more than a mere possibility that jury

misconduct might have occurred; it must have a firm foundation. Esparza v. State, 31 S.W.3d 338,

340 (Tex. App.—San Antonio 2000, no pet.). That a juror was “uncomfortable” with her verdict

does not constitute a firm foundation that jury misconduct occurred. See Castellano v. State, No. 04-

06-00524-CR, 2007 WL 2935399, at *3 (Tex. App.—San Antonio 2007, no pet.) (holding that

defendant had “reason to believe” juror misconduct had occurred was not sufficient to show good



                                                  -15-
                                                                                        04-08-00771-CR

cause); Garza v. State, No. 04-02-00599-CR, 2003 WL 23008845, at *10 (Tex. App.—San Antonio

2003, pet. ref’d) (holding that testimony of defendant’s mother that juror was distant relative of

defendant and was prejudiced against him was insufficient to show good cause because mother also

admitted that she could not remember juror’s first name, did not know how juror was related to

defendant, and had no personal knowledge of the juror’s feelings toward defendant). Therefore, the

trial court did not err in denying Cyr’s request for juror information.

        Cyr also argues that the trial court erred in denying his motion for new trial without holding

a hearing. We review the trial court’s denial of a hearing on a motion for new trial for abuse of

discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).

        The purpose of a hearing on a motion for new trial is to (1) decide whether a cause should

be retried and (2) prepare a record for presenting appellate issues if the motion is denied. Id. at 338.

Such a hearing is not an absolute right and is not required when the matters raised in the motion for

new trial are determinable from the record. Id. Here, Cyr has alleged juror misconduct, which is a

matter not determinable from the record. However, even though Cyr has raised a matter not

determinable from the record, because requiring a hearing on all matters not determinable from the

record could lead to “fishing expeditions,” he would not be entitled to a hearing on his motion for

new trial unless he established the existence of “reasonable grounds” showing that he could be

entitled to relief. Id. at 339.

        Because Cyr must show reasonable grounds exist for a new trial, as a prerequisite to a

hearing, his motion had to be supported by an affidavit, either of himself or someone else,

specifically setting out the factual basis for the claim. Id. The affidavit need not establish a prima




                                                  -16-
                                                                                         04-08-00771-CR

facie case, or even reflect every component legally required to establish the relief requested. Id. “It

is sufficient if a fair reading of it gives rise to reasonable grounds in support of the claim.” Id.

        The State argues that the affidavit in support of Cyr’s motion for new trial, affirmed by Cyr’s

counsel, is insufficient because it does not reflect that Cyr’s counsel had personal knowledge and

was instead based on hearsay. “It is well established that a motion for new trial complaining of jury

misconduct must be supported by the affidavit of a juror, or some other person who was in a position

to know the facts, or must state some reason or excuse for failing to produce the affidavits.”

Baldonado v. State, 745 S.W.2d 491, 493 (Tex. App.—Corpus Christi 1998, pet. ref’d) (emphasis

added); see also Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985), overruled on other

grounds by Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989); Bearden v. State, 648

S.W.2d 688, 690 (Tex. Crim. App. 1983). Counsel’s affidavit does not reflect that he was in a

position to know the facts. Instead, his affidavit affirms that a member of the media told him that a

juror had told him that she was “uncomfortable” with the verdict. Thus, the affidavit was deficient,

and the trial court did not err in failing to hold a hearing. See Jordan v. State, 883 S.W.2d 664, 665

(Tex. Crim. App. 1994) (holding that because affidavit was conclusory in nature and thus deficient,

motion for new trial was not sufficient to put trial court on notice that reasonable grounds existed).

        Moreover, even if the affidavit had been sufficient, the trial court still did not err in failing

to hold a hearing because the affidavit did not establish the existence of reasonable grounds showing

Cyr could be entitled to relief based on jury misconduct. See Smith, 286 S.W.3d at 339. To

demonstrate jury misconduct, a defendant must show that (1) the misconduct occurred and (2) the

misconduct resulted in harm to the movant. Jennings v. State, 107 S.W.3d 85, 90 (Tex. App.—San

Antonio 2003, no pet.). The affidavit at issue here merely states that a juror “was not comfortable



                                                  -17-
                                                                                       04-08-00771-CR

with her verdict” and that said juror “believed that the defendant was not guilty but later changed her

verdict during jury deliberations for an unknown reason.” Being uncomfortable with the verdict and

changing your vote during jury deliberations for an unknown reason does not establish that

reasonable grounds existed for Cyr to be entitled to a new trial based on jury misconduct. Therefore,

the trial court did not err in denying Cyr’s motion for new trial without holding a hearing.

                                            CONCLUSION

       We affirm the judgment of the trial court.

                                                        Karen Angelini, Justice

PUBLISH




                                                 -18-
