
 









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0118-06


NATALIE WHITE, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY



 Price, J., filed a concurring opinion.

CONCURRING OPINION


	This case involves the collision of two provisions of law that seem irreconcilable to
me.  The first is Article 44.46(2) of the Texas Code of Criminal Procedure. (1)  This statute
requires a criminal defendant who has failed to challenge an absolutely disqualified juror
until after verdict to establish "significant harm" from that juror's service on his jury before
a reviewing court can reverse his conviction.  The second is Rule 606(b) of the Texas Rules
of Evidence. (2)  This rule essentially prohibits a defendant from adducing testimony from the
jurors who served on his jury with respect to "any matter or statement" occurring during the
deliberations themselves, or their "mental processes" in arriving at their verdict.  It also
prohibits affidavits from those jurors, or even testimony of what those jurors might have told
a third party about the jury's deliberative process.  In view of Rule 606(b)'s stringent
prohibitions, how can a defendant who must establish "significant harm" from the service
of an absolutely disqualified juror under Article 44.46(2) go about satisfying his burden of
proof on that issue?
	The appellant makes two arguments that the Court, without substantial analysis, 
rejects today.  First, the appellant argues that she can satisfy one of the two exceptions to the
prohibitions in Rule 606(b).  She contends that she can show that the service of the two
absolutely disqualified jurors on her jury constituted an "outside influence [that] was
improperly brought to bear" upon the rest of the jurors, and the rule's first exception
expressly allows jurors to testify to such an outside influence.  The Court is "unconvinced"
by this argument, noting that several of our courts of appeals have defined an "outside
influence" to be "something outside of the jury room and the juror."  But it seems to me that
the argument bears closer scrutiny than the Court affords it.  After all, if two of the purported
jurors are absolutely disqualified, it is at least arguable that their participation in deliberations
would be just as "outside" an "influence" as would, for example, input from the bailiff. (3) 
Perhaps it can be said that absolutely disqualified jurors do not really constitute "jurors" at
all, such that their input would amount to "communications and contacts with third parties[,]"
the quintessential example of an "outside influence." (4)  The Court does not confront this
argument head-on, and none of the court of appeals opinions it cites resolves it.
	The appellant's second argument is that to construe Rule 606(b) to prohibit her from
piercing the veil of the jury room would make it impossible for her to sustain her burden of
showing significant harm under Article 44.46(2).  She would have a statutory right to relief,
but it would be predicated upon a showing of harm that the Rules absolutely prohibit her
from making.  Such a right without a remedy would violate due process, she contends. (5)  The
Court responds today by pointing out that the rule does not prevent a showing of significant
harm by other, non-juror evidence.  I fail to see how this observation remedies the potential
due process violation.
	We have said that the reason that persons under legal accusation for theft are
absolutely disqualified from jury service "is to insure the probity of the jury[.]" (6) A defendant
who raises the issue of absolute disqualification before the verdict is entered is entitled to a
new trial without a showing of harm because it is assumed that the integrity of the tribunal
that rendered that verdict was compromised. (7)  But a defendant, like the appellant, who fails
(for whatever reason) to raise the issue until after verdict, must show something more to
establish that the probity of the jury was compromised than the mere fact that a disqualified
juror sat. (8)  Otherwise, Article 44.46(2d)'s requirement of a showing of significant harm
would be "meaningless." (9)  As the court of appeals characterized it below, she must
"demonstrate . . . substantial harm [that] is directly attributable to the service of the
objectionable jurors." (10)  The appellant cannot possibly make this showing from any source
other than the jurors themselves (or their affidavits, or third-party testimony as to what one
of them may have said about the deliberations afterward).  Therefore, for the Court to assure
her that she is free under the rule to resort to non-juror evidence does not satisfactorily
resolve her due process claim.
	I nevertheless concur in the Court's judgment.  Neither of the absolutely disqualified
jurors in this case actually served on the jury while laboring under the belief that he or she
was charged with theft.  Jones testified that he was unaware of the charge against him. 
Giddings testified that, for whatever reason, she had assumed that the theft charge had been
dismissed.  We must presume from the trial court's ruling that it credited this testimony. (11) 
Neither disqualified juror could therefore have been serving on the jury with a motive to try
to convince their peers to boost the appellant's punishment in order to curry favor with the
prosecution and thereby improve his or her own position.  Neither had any motive other than
to use his or her best judgment as to the appropriate punishment to be imposed within the
statutorily prescribed range under the particular facts of the case.  I cannot conceive how the
appellant could otherwise show, even if we were to construe Rule 606(b) to permit the jurors
to testify about their deliberations, that the integrity of the sentencing tribunal was actually
compromised by the service of the two disqualified jurors.
	For this reason I would affirm the judgment of the court of appeals without reaching
the particular questions the Court disposes of in its opinion.  Accordingly, I concur in the
Court's judgment, but do not join its opinion.

Filed:	June 6, 2007
Publish
1. 	 Tex. Code Crim. Proc. art. 44.46(2).
2. 	 Tex. R. Evid. 606(b).
3. 	 See Parker v. Gladden, 385 U.S. 363, 364 (1966) (expressly describing bailiff's comments
to jury during criminal trial as an "outside influence").
4. 	 See Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 Texas Practice:Guide
to the Texas Rules of Evidence § 606.4, p. 687 (3rd ed. 2002) ("What, then, falls within the
outside influence exception?  Since an outside influence must emanate from outside the jury and its
deliberations, the exception comprises testimony concerning communications and contacts with third
parties.").
5. 	 This is not the first time we have heard such an argument.  See Ex parte Green, 159 S.W.
925, 926 (Tex. Crim. App. 2004) (Dissenting Statement of Johnson, J., joined by Price, J.) ("We
should not invade the jury room for little purpose, but due process demands that there be a way to
address blatant jury misconduct.  Rule 606(b) bars any examination of the process.  A trial cannot
be fair if the jury deliberations are tainted.").
6. 	 DeBlanc v. State, 799 S.W.2d 701, 707 (Tex. Crim. App. 1990).
7. 	 E.g., Thomas v. State, 796 S.W.2d 196, 199 (Tex. Crim. App. 1990).
8. 	 Nelson v. State, 129 S.W.3d 108, 112 (Tex. Crim. App. 2004) ("A defendant may have his
conviction reversed on appeal, even though he did nothing before the verdict was entered, but only
if he meets a high standard that Article 44.46(2) raises on appeal.").
9. 	 Hernandez v. State, 952 S.W.2d 59, 71(Tex. App.--Austin 1997), reversed on other
grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998) ("If the mere fact of conviction were 'significant
harm' within the meaning of article 44.46(2), the statute would be meaningless.  Appellant's
interpretation of article 44.46(2) would read into the statute the very holding - service by an
absolutely disqualified juror is 'automatic' reversible error - the statute was plainly designed to
overturn.").
10. 	 White v. State, 181 S.W.3d 514, 517 (Tex. App.--Texarkana 2005).
11. 	 Under current law, when ruling on a motion for new trial the trial court is forbidden to
"summarize, discuss, or comment on evidence."  Tex. R. App. P. 21.8(b).  We have said that in
contexts in which the trial court acts as fact finder, but fails to make explicit findings of fact, we will
assume that the trial court made implicit findings that support its ruling as long as those implicit
findings are in fact supported by the record.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000).
