Opinion issued August 1, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                   NO. 01-12-00149-CR & 01-12-00150-CR
                           ———————————
                            GLEN TATE, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 179th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1309786 & 1309787


                                  OPINION

      A jury convicted appellant, Glen Tate, of two counts of aggravated sexual

assault,1 and the trial court assessed his punishment at imprisonment for life

without parole.   Appellant argues that (1) the State failed to prove his prior

1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2012).
conviction for aggravated rape, which was used to enhance his convictions, and

(2) the judgments should be reformed to reflect that the trial court, rather than the

jury, assessed his punishment and that he pleaded “not true” to the enhancement

paragraph.    In a supplemental brief, appellant argues that juror misconduct

deprived him of his rights to due process and a fair and impartial trial.

      We affirm appellant’s conviction, but we reverse the portion of the judgment

assessing punishment and remand for a new punishment hearing.

                                    Background

      Appellant was indicted on two counts of aggravated sexual assault of a child

under the age of fourteen. At trial, the complainant, appellant’s step-daughter,

testified that she and appellant had sexual intercourse thirty to fifty times in the

first half of 2009. The jury found appellant guilty.

      Appellant’s indictments for aggravated sexual assault of a child also

contained the following enhancement paragraph:

      Before the commission of the offense alleged above, on February 24,
      1981, in Cause Number 7724, in the 29th Judicial District Court of
      Palo Pinto County, Texas, the Defendant was convicted of the felony
      of Aggravated Rape.

Appellant pleaded “not true” to the enhancement paragraph and stated that he

would not stipulate to any prior convictions.

      In the punishment phase of the trial, the State introduced appellant’s

penitentiary packet (“pen packet”), including the judgment of appellant’s 1981

                                          2
conviction. A fingerprint expert testified that appellant’s fingerprints matched

those in the pen packet. However, the 1981 judgment included a notation that

appellant “gave notice of appeal to the Court of Criminal Appeals, Austin, Texas.”

The pen packet did not contain evidence that the 1981 judgment of conviction

became final.

      The trial court found the enhancement paragraph true and assessed

appellant’s punishment at life in prison, and it signed the judgment on February 7,

2012. That same day, the jury foreman sent the trial judge an e-mail, indicating

that, prior to his selection as a juror and the trial court’s admonishment not to

conduct any research, he had executed a search of the Texas Department of Public

Safety’s Sex Offender Registry on his iPhone and discovered appellant’s 1981

aggravated rape charge. Specifically, the e-mail stated:

      [O]n Friday last, after 65 of us had been shepherded to the 179th,
      during a break and after learning of the defendant’s name . . . , I left
      your court and walked to the hallway. Something told me to access
      the Texas Department of Public Safety’s Sex Offender’s Registry on
      my I-Phone. So, I did. I searched Tate’s name and his 1981
      “[Aggravated] Rape” charge came up on the database. (Mind you,
      this was prior to instruction from the Court/you so I believe I was
      within proper conduct to access a public domain database.[)] Never
      believing that I would be selected, I kept this information to myself.
      Once I was impaneled, I debated whether to disclose the knowledge I
      learned concerning Mr. Tate’s prior conviction. I consulted an
      attorney friend and he encouraged me to maintain silence regarding
      my discovery because it was prior to being selected as a juror. So, I
      did. Even with this knowledge, I PURPOSED TO MAKE CERTAIN
      THAT I COMMIT MYSELF to maintain an open mind regarding Mr.
      Tate’s innocence or guilt. I never shared my knowledge with the rest
                                         3
      of the Jurors. It became clear during deliberations that a higher power
      was at work and as we discussed the case, it was truly amazing to
      observe how the twelve of us went from 2 undecided, 1 guilty [sic]
      and 9 guilties, morph to a unanimous decision to convict. After the
      rest of the jurors learned of Tate’s priors, it was confirmation to them
      and me that we had made the correct decision.

      On February 22, 2012, appellant moved to release personal information

about jurors under Texas Code of Criminal Procedure article 35.29, alleging that

the foreman’s e-mail sent on February 7, 2012 constituted evidence of juror

misconduct and that defense counsel needed the other jurors’ contact information

in order to determine whether any of them had been biased by the foreman’s

knowledge. The trial court granted this motion that same day. However, appellant

never filed a motion for new trial.

                                 Juror Misconduct

      In his supplemental issue, appellant argues that he “was deprived of his

rights to due process and a fair and impartial trial due to jury misconduct when

during voir dire a juror searched the Texas Department of Public Safety Sex

Offender Registration website and found [appellant’s] previous conviction for

Aggravated Rape.”

      To preserve error caused by juror misconduct, the defendant must either

move for a mistrial or move for a new trial supported by affidavits of a juror or

other person in a position to know the facts alleging misconduct. See Menard v.

State, 193 S.W.3d 55, 59 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Here,

                                         4
appellant did not move for mistrial or for a new trial, even though his counsel was

aware of the foreman’s e-mail within the time period for filing a motion for new

trial, as evidenced by the motion to release juror information. See TEX. R. APP. P.

21.4 (providing that motion for new trial must be filed within 30 days after date

trial court imposes or suspends sentence in open court). Thus, it appears that

appellant did not preserve this issue for consideration on appeal.

      However, even if appellant had established the existence of an “outside

influence” on a juror, because the foreman subsequently sat on the case, that act

would not end the inquiry under McQuarrie v. State. See 380 S.W.3d 145, 154

(Tex. Crim. App. 2012) (defining “outside influence” as used in Rule of Evidence

606(b) as “something originating from a source outside of the jury room and other

than from the jurors themselves”). Appellant would still have an obligation to

show that the jurors who sat on his case were actually biased by the information

that the foreman obtained. See id. (holding that juror’s internet research during

break from deliberations constituted outside influence under Rule 606(b) and trial

court erred in refusing to allow jurors to testify regarding that outside influence);

see also Hines v. State, 3 S.W.3d 618, 623 (Tex. App.—Texarkana 1999, pet.

ref’d) (“A motion for new trial based on jury misconduct must be supported by a

juror’s affidavit alleging that ‘outside influence’ affected the jury’s decision.”).

Although the record contains no sworn testimony from the foreman, his e-mail to

                                          5
the trial court indicated that he believed he could remain unbiased and that he

“never shared [his] knowledge with the rest of the Jurors.” The record does not

contain any evidence or allegation that the foreman’s knowledge affected the jury’s

decision.

      Moreover, this case is distinguishable from the “outside influence” line of

cases appellant cites in support of his complaint. Appellant relies mainly on

McQuarrie, in which the Court of Criminal Appeals held that internet research

conducted by a juror during the course of deliberations constituted an “outside

influence” about which the defendant should have been permitted to conduct a

post-trial inquiry pursuant to Texas Rule of Evidence 606(b). 2 380 S.W.3d at 154–

55. Here, the foreman was not a juror at the time he conducted the internet

search—he was still a member of the venire. This is a situation where a member of

the venire panel had information relevant to the case—information acquired prior

to being selected to serve on the jury—that was not discovered until after trial.

Thus, this case is more closely analogous to those dealing with the conduct of

venire members and their obligation to disclose information when questioned

during voir dire.

2
      Texas Rule of Evidence 606(b) prohibits a juror from testifying about “any matter
      or statement occurring during the jury’s deliberations,” except when the testimony
      addresses “whether any outside influence was improperly brought to bear upon
      any juror” or “rebut[s] a claim that the juror was not qualified to serve.” TEX. R.
      EVID. 606(b).

                                           6
      To obtain a new trial based on juror misconduct in a situation such as this,

the defendant must show that the juror withheld material information during voir

dire despite the defendant’s due diligence. Franklin v. State, 138 S.W.3d 351,

355–56 (Tex. Crim. App. 2004). Diligence requires that counsel ask questions

calculated to bring out information that might indicate a juror’s inability to be

impartial and truthful. Armstrong v. State, 897 S.W.2d 361, 363–64 (Tex. Crim.

App. 1995). Unless defense counsel asks such questions, material information that

a juror fails to disclose is not really “withheld.” Id. at 364. Counsel must ask

specific questions, not rely on broad ones, to satisfy this obligation and must ask

follow-up questions after a potential bias is discovered. Gonzales v. State, 3

S.W.3d 915, 917 (Tex. Crim. App. 1999).

      Here, the trial court asked if anyone knew appellant or any of the trial

attorneys.   However, no one asked the venire panel if they had any prior

information regarding the case or had conducted any research on appellant or the

charges against him. The foreman did not withhold this information, as he was

never asked about it. Thus, appellant has failed to establish that he exercised due

diligence in questioning the venire and that the foreman withheld material

information in spite of his due diligence, so his claim of juror misconduct fails.

See Franklin, 138 S.W.3d at 355–56; Gonzales, 3 S.W.3d at 917; Armstrong, 897

S.W.2d at 363–64.

                                        7
      We overrule appellant’s supplemental issue.

                            Enhancement Paragraph

      In his first issue, appellant argues that the evidence was insufficient “for

enhancement purposes” under Texas Penal Code section 12.42 because the State

failed to prove that the 1981 judgment of conviction for the prior rape offense was

final. Penal Code section 12.42 provides that “a defendant shall be punished by

imprisonment in the Texas Department of Criminal Justice for life if . . . [he] has

been previously convicted of an offense” under Penal Code section 22.021.3 TEX.

PENAL CODE ANN. § 12.42 (Vernon Supp. 2012).

      In examining the sufficiency of the evidence, we view all of the evidence in

the light most favorable to the judgment and determine whether any rational fact

finder could have found the essential elements of the matter under review beyond a

reasonable doubt. See Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App.

2012). To establish that an appellant was convicted of a prior offense, the State is

required to prove beyond a reasonable doubt that a prior conviction exists and that

the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921

(Tex. Crim. App. 2007). When faced with a silent record regarding finality, we

presume that the conviction is final once the State provides prima facie evidence of

an enhancement conviction. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App.

3
      Penal Code section 22.021 provides the elements for establishing the crime of
      aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021 (Vernon 2012).
                                         8
2007). However, when the evidence raises a question as to the finality of the

enhancement conviction, the State has the burden of proof to show that the prior

conviction was a final conviction under the law. See Wilson v. State, 671 S.W.2d

524, 525 (Tex. Crim. App. 1984); Henry v. State, 331 S.W.3d 552, 555 (Tex.

App.—Houston [14th Dist.] 2011, no pet.) (citing Fletcher, 214 S.W.3d at 8

(recognizing that the State must “prove the final disposition of an appeal from an

enhancement conviction”)); see also Ex parte Chandler, 182 S.W.3d 350, 358

(Tex. Crim. App. 2005) (“[I]f the State’s proof of the prior conviction shows on its

face that the conviction was appealed, the State must put on evidence that [the]

mandate has issued.”). “It is well-established that a conviction from which an

appeal has been taken is not considered a final conviction until it is affirmed by the

appellate court and [the] mandate has issued.” Henry, 331 S.W.3d at 555; see also

Russell v. State, 790 S.W.2d 655, 657 (Tex. Crim. App. 1990) (holding that when

judgment for prior conviction relied on in enhancement paragraph recited on its

face that defendant gave notice of appeal and state gave no other evidence

regarding finality of conviction, evidence was “insufficient to satisfy the predicate

necessary for the conviction’s use to enhance”).

      Here, the State concedes error.         The judgment from appellant’s 1981

conviction stated on its face that appellant gave notice of appeal to the Court of

Criminal Appeals. The State presented no evidence regarding the finality of this

                                          9
conviction.   Accordingly, we conclude that the evidence was insufficient to

establish the predicate necessary to use the conviction to enhance appellant’s

punishment. See id. Accordingly, we remand for a new hearing on punishment.4

See Henry, 331 S.W.3d at 556 (citing TEX. CODE CRIM. PROC. ANN. art. 44.29(b)

(Vernon Supp. 2012)).

                                     Conclusion

      We affirm appellant’s conviction but reverse the portion of the judgment

assessing punishment. We remand for a new hearing on punishment.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




4
      In his second issue, appellant argues that the written judgment should be reformed
      to correctly reflect that he pleaded “not true” to the enhancement paragraph and
      that the trial court assessed punishment at life imprisonment. Because we are
      remanding the case to the trial court for a new punishment hearing, this issue is
      moot.
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