                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-11-00473-CR


Wilkie Schell Colyer, Jr.                 §    From County Criminal Court No. 3

                                          §    of Tarrant County (1166450)

                                          §    January 17, 2013
v.
                                          §    Opinion by Justice Gabriel

                                          §    Dissent by Justice Walker

The State of Texas                        §    (p)


                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed and this case is remanded for a new trial.

                                     SECOND DISTRICT COURT OF APPEALS



                                     By_________________________________
                                       Justice Lee Gabriel
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00473-CR


WILKIE SCHELL COLYER, JR.                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                   Introduction

      Appellant Wilkie Schell Colyer, Jr. appeals his conviction for driving while

intoxicated. In a single point, he contends that the trial court erred by denying his

motion for new trial alleging juror misconduct. We reverse.




      1
       See Tex. R. App. P. 47.4.


                                          2
                  Background Facts and Procedural History

      The State’s evidence at trial consisted of the arresting officer’s testimony

and a videotape showing Appellant’s performance on field sobriety tests at the

scene of the arrest and at the jail where he was offered, but refused to submit to,

a breath test. The evidence was undisputed that the officer found Appellant

unconscious in a car at a Fort Worth intersection. The Defense’s theory was that

Appellant had been overworked and sleep-deprived and that after a night out

with friends, he had fallen asleep at the wheel while waiting for the light to

change.

      After the jury returned its verdict, the judge asked the foreman, Angel

Aguilera, whether the verdict was unanimous. Aguilera replied that it was, and

Appellant’s counsel asked for a poll. The trial court turned to the foreman and

asked, ―[W]as that your verdict?‖ Aguilera replied, ―It was a majority––It was––

Yes, Your Honor.‖ After each of the other jurors individually acknowledged the

verdict as their own, the trial court asked the foreman to clarify his earlier

response:

            THE COURT: Okay. Mr. Aguilera, you made the statement it
      was a majority verdict. Was it unanimous or––Would you explain
      what you meant by that?

           THE FOREMAN:            We all took a poll and we voted
      unanimously, Your Honor.

      The trial court discharged the jury and considered each side’s

recommendations on punishment. Appellant’s counsel then stated the following:



                                        3
             I approached the Court––I’m not sure if that part was on the
      record––but when the juror said that it was a majority and then I
      approached the Court about my concern about that wording and his
      body language, and I just want to put on the record what I noticed
      was that he appeared upset. He appeared frustrated. He was––He
      rolled his eyes. He kind of huffed when he was asked.

              You then asked him again, and he rolled his eyes and––and
      just sort of very abruptly said, [―]hahh.[‖] I’d also like to point out
      that––just for the record, we were busy––that we got the note
      about––dispute about police testimony, then we asked them to
      clarify exactly what it was.

             We got a note about––then the clarification came back that it
      was actually testimony about the defense witness. In the process of
      us trying to pull that testimony and get it for them, they came back
      with the verdict pretty abruptly without the testimony transcript being
      given––the transcript being given to them.

            So just based on his body language, his nonverbal
      expressions and––and what I watched him say when he––after he
      said it was a majority, which obviously, legally it has to be
      unanimous, I would ask the Court to withhold sentencing until a later
      date.

      The trial court later sentenced Appellant to a $550 fine and twenty days in

jail and suspended his driver’s license for six months. Appellant filed a motion for

new trial, alleging among other things that the verdict was decided in a manner

other than a fair expression of the jurors’ opinions.

      Aguilera was the only witness called at the hearing on the motion for new

trial. He testified that his verdict was not a fair expression of his opinion:

      Q. (BY [Counsel for Appellant]) Was your verdict, specifically your
      verdict, a fair––a fair expression of your opinion that the State had
      proven [Appellant] guilty beyond a reasonable doubt?

      A. No.



                                           4
Aguilera also testified that he conceded to the other jurors when he received a

telephone call from a doctor’s office reporting that his daughter had tested

positive for a serious illness. He further testified that upon hearing the doctor’s

news, he felt that he had to be with his daughter immediately and, as a result, he

changed his vote in order to leave.

      Q. (BY [Counsel for Appellant]) Did you have outside influences that
      affected your verdict––

      A. Yes.

      Q. ––Mr. Aguilera? And did those outside influences affect you to
      the extent that you changed your verdict in some fashion?

      A. Absolutely.

      Q. And how is that?

      A. Due to the severity of knowing that my daughter just came down
      with MRSA and that I had it in the past, I felt I was responsible for
      her having it and she’s innocent. I needed to be home with her
      immediately. So I had to concede to the other people and get home
      to my daughter immediately.

      Q. Is that what you did, Mr. Aguilera?

      A. Yes.

      Q. Do you feel that the State proved their case beyond a
      reasonable doubt?

      A. Absolutely not.

      The State did not cross-examine the witness or offer any evidence. The

trial court denied the motion for new trial.




                                           5
                                    Discussion

      We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App.

2012); Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied, 534

U.S. 855 (2001). ―We do not substitute our judgment for that of the trial court;

rather, we decide whether the trial court’s decision was arbitrary or

unreasonable.‖ Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006);

see Salazar, 38 S.W.3d at 148. A trial court abuses its discretion by denying a

motion for new trial when no reasonable view of the record could support the trial

court’s ruling. Holden, 201 S.W.3d at 763.

      Appellant argues that the trial court abused its discretion by denying his

motion for new trial because there is undisputed evidence that the jury foreman

changed his vote from not guilty to guilty due to an outside influence. The State

responds that whatever caused the foreman to change his vote was not an

―outside influence‖ as that term has been defined in the context of juror

misconduct and that, in any event, his testimony was prohibited by rule of

evidence 606(b).

      Rule 606(b) provides:

      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


                                         6
      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). The rules of appellate procedure provide that a defendant

must be granted a new trial or a new trial on punishment when the verdict has

been decided by lot or in any manner other than a fair expression of the jurors’

opinion. Tex. R. App. P. 21.3(c).

      Rule 606(b) does not purport to redefine juror misconduct, not does it alter

the grounds for obtaining a new trial in criminal cases. See Sanders v. State, 1

S.W.3d 885, 887 (Tex. App.––Austin 1999, no pet.). Rules 606(b) and 21.3(c)

work together to define jury misconduct and how a defendant may prove the

existence of such conduct. Hines v. State, 3 S.W.3d 618, 622 (Tex. App.––

Texarkana 1999, pet. ref’d). Rule 606(b) defines what evidence is admissible in

proving jury misconduct, that is, evidence of outside influences improperly

brought to bear on a juror, while rule 21.3(c) limits that permissible evidence to

that which is relevant to whether the verdict was a fair expression of the jurors’

opinion. Tex. R. Evid. 606(b), Tex. R. App. P. 21.3(c). Thus, if a defendant has

evidence that is admissible under rule 606(b), rule 21.3(c) comes into play, and

the issue becomes whether the trial court must grant a new trial. See Hines, 3

S.W.3d at 622.

      In a post-submission letter brief, the State advised us of McQuarrie v.

State, in which the court of criminal appeals defined ―outside influence‖ as

―something originating from a source outside of the jury room and other than from


                                        7
the jurors themselves.‖ McQuarrie, 380 S.W.3d at 154. Applying this definition

to the facts in that case, the court held that internet research conducted by a juror

at her home during an overnight break from deliberations was an ―outside

influence‖ that the trial court could have explored at a hearing on a motion for

new trial without delving into deliberations and thereby running afoul of rule

606(b). Id.; see also Ellison v. State, No. 03-98-00602-CR, 2000 WL 5011, at *4

(Tex. App.—Austin Jan. 6, 2000, pet. ref’d) (not designated for publication) (―Rule

606(b) does not purport to redefine juror misconduct, nor does it alter the

grounds for obtaining a new trial in criminal cases.‖).

      In its original brief, the State first argued that Aguilera’s testimony did not

identify any ―outside influences‖ that affected his verdict.     After the court of

criminal appeals decided McQuarrie, the State adapted its position to argue that

the issue is not whether the information Aguilera acquired came from ―outside‖

but whether it amounted to an ―influence‖ at all. In support, the State relies on

dicta from a civil case handed down by one of our sister courts more than twenty

years before the court of criminal appeals decided McQuarrie. See Kirby Forest

Indus., Inc., v. Kirkland, 772 S.W.2d 226, 234 (Tex. App.––Houston [14th Dist.]

1989, writ denied) (affirming denial of motion for new trial on the basis of juror’s

contradictory affidavits but observing in dicta that ―normal pressures‖ such as

those exerted by employers, family and a juror’s own personal preferences would

not be considered ―outside influences‖). Even if this case were more recent,




                                          8
criminal and from this court, dicta has no binding effect. See Aguirre-Mata v.

State, 125 S.W.3d 473, 476 (Tex. Crim. App. 2003).

       The State next argued that Aguilera’s testimony related to events that were

―neutral‖ and could not have influenced his verdict one way or the other. For this

argument, the State relied on another civil case, Rosell v. Central West Motor

Stages, Inc., 89 S.W.3d 643 (Tex. App.––Dallas 2002, pet. denied). In that case,

three jurors’ affidavits reported that the bailiff had informed the jury that even if it

considered itself deadlocked, the trial judge would require deliberations to

continue for another day. Id. at 660. As a result, according to the affidavits, the

jurors traded votes on negligence and apportionment issues and thereby reached

an agreement on the verdict.        Id.   The court of appeals concluded that the

testimony about vote trading was evidence about deliberations and was not

evidence of outside influences. Id. at 661; see Tex. R. Evid. 606(b) (―a juror may

not testify as to any matter or statement occurring during the jury’s

deliberations . . .‖).

       Beyond the court’s holding in Rosell, however, its discussion of the

relevant law actually supports Appellant’s position in the case before us today.

As the movant for a new trial, Appellant bore the burden of proof. And as the

court pointed out in Rosell, ―[w]hether misconduct occurred is a question of fact

for the trial court, and if there is conflicting evidence on this issue the trial court’s

finding must be upheld on appeal.‖          89 S.W.3d at 660; see Golden Eagle

Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000); see also Pharo v.


                                           9
Chambers Cnty., Tex., 922 S.W.2d 945, 948 (Tex. 1996).           Juror misconduct

warrants a new trial if it reasonably appears from the record that misconduct

most likely caused a juror to vote differently than he otherwise would have.

Rosell, 89 S.W.3d at 661 (citing Pharo, 922 S.W.2d at 950). ―Determining the

existence of probable injury is a question of law.‖ Id. Here, the record shows

that once Aguilera changed his vote, the verdict was unanimous, which raises a

reasonable inference that he was the lone holdout for acquittal. Aguilera testified

that an outside influence caused him to change his verdict.        Specifically, he

testified that while other jurors were talking on their cell phones in the jury room

as the court reporter prepared requested testimony, he spoke to his daughter’s

doctor and learned that his daughter had a serious illness. He further testified

that his conversation with the doctor caused him to change his vote before the

court reporter provided the requested testimony, that his change of vote to guilty

was not a fair expression of his opinion on whether the State had proven the guilt

of Appellant, and that he ―absolutely‖ did not believe that the State had proven its

case beyond a reasonable doubt. All this testimony went unchallenged by the

State, and there was no conflicting evidence for the trial court to resolve against

it.   Thus, Aguilera’s testimony established without dispute that an outside

influence caused him to vote differently than he otherwise would have.         See

Pharo, 922 S.W.2d at 950.

       The State finally argued that Aguilera’s testimony was inadmissible. In

almost every instance where the State raised an objection to Aguilera’s testimony


                                        10
at the hearing, the record shows that those objections were sustained.             For

example, the trial court sustained objections on the grounds of delving into

deliberations, exceeding the scope of the hearing, and relevancy.            However,

Aguilera testified without objection, with no cross-examination, and against no

controverting evidence that outside influences caused him to change his verdict

to guilty despite his belief that the State had not proven its case beyond a

reasonable doubt, in order to allow him to leave the jury room immediately.

Contrary to the State’s position, we will not hold that rule 606(b) applies to

testimony that comes in unopposed by objection.

         The rules of appellate procedure list specific grounds for which a trial court

must grant a new trial. Tex. R. App. P. 21.3(c). These include ―when the verdict

has been decided by lot or in any manner other than a fair expression of the

jurors’ opinion.‖      Id. (emphasis added).       When the record unequivocally

demonstrates proof of one of the grounds listed in rule 21.3(c), the trial court

abuses its discretion by refusing to grant a new trial. Id.; see Salazar, 38 S.W.3d

at 148; Jennings v. State, 107 S.W.3d 85, 90 (Tex. App.––San Antonio 2003, no

pet.).

         Because the uncontroverted evidence in this case established that the

foreman in Appellant’s trial changed his vote to guilty and that his vote was

contrary to a fair expression of his opinion, we hold that the trial court abused its

discretion by denying Appellant’s motion for new trial. Tex. R. App. 21.3(c); see

Salazar, 38 S.W.3d at 148; Jennings, 107 S.W.3d at 90; see also Perez v. State,


                                           11
No. 13-03-00656-CR, 2005 WL 2092907, at *1 (Tex. App.––Corpus Christi Aug.

30, 2005, no pet.) (mem. op., not designated for publication) (reversing a trial

court’s denial of a motion for new trial when ―the uncontroverted evidence

establishe[d] juror misconduct.‖).

                                     Conclusion

      Because the trial court abused its discretion by denying Appellant’s motion

for new trial, we reverse the trial court’s judgment and remand this cause for a

new trial.

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

WALKER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: January 17, 2013




                                          12
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00473-CR


WILKIE SCHELL COLYER, JR.                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                      ----------

                           DISSENTING OPINION

                                      ----------

      I respectfully dissent. I would hold that the telephone call that juror Angel

Aguilera received from his doctor’s office during the jury’s deliberations informing

Aguilera that his daughter had MRSA was not an ―outside influence‖ that was

improperly brought to bear on Aguilera. See Tex. R. Evid. 606(b). Accordingly,

Aguilera’s testimony concerning the telephone call and its effect on his emotions

or its influence on him to assent to the verdict so that he could leave the

courthouse and go be with his daughter were not admissible under rule of
evidence 606(b), and the trial court did not abuse its discretion by denying

Appellant Wilkie Schell Colyer, Jr.’s motion for new trial based on jury

misconduct. See id.

      Rule 606(b) provides that a juror may not testify about ―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.‖ Id. But the rule provides an

exception permitting a juror to testify ―whether any outside influence was

improperly brought to bear upon any juror.‖ Id.

      Under Rule 606(b), the telephone call received by juror Aguilera is not, as

a matter of law, an outside influence that affected the validity of the verdict; it was

a personal pressure on juror Aguilera to end the deliberations so that he could be

with his daughter, not information or evidence obtained from outside the jury

room or courtroom that influenced juror Aguilera’s belief of whether or not

Appellant was guilty. Compare McQuarrie v. State, 380 S.W.3d 145, 154 (Tex.

Crim. App. 2012) (holding, in case where defendant allegedly used date rape

drugs to effectuate rape of complainant, that juror’s at-home internet research on

date rape drugs that was relayed to the jury the next morning was outside

influence so that jurors’ testimony and affidavits were admissible at motion for

new trial hearing alleging jury misconduct), and Jennings v. State, 107 S.W.3d

85, 90 (Tex. App.—San Antonio 2003, no pet.) (finding juror misconduct when

juror changed vote from ―not guilty‖ to ―guilty‖ because of jurors’ agreement to be


                                          2
bound to vote in accordance with longer of two lists of facts making defendant

guilty and not guilty), with Editorial Caballero, S.A. de C.V. v. Playboy Enters.,

Inc., 359 S.W.3d 318, 325 (Tex. App.—Corpus Christi 2012, pet. denied)

(―Personal pressures felt by jurors to wrap up the deliberations do not constitute

outside influences.‖), Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 660–

61 (Tex. App.—Dallas 2002, pet. denied) (reasoning that bailiff informing jury that

it would have to deliberate another day unless a decision was reached was

neutral information that would not persuade a juror to decide the case in any

particular manner), and Kirby Forest Indus., Inc. v. Kirkland, 772 S.W.2d 226,

234 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (holding testimony of two

jurors that they changed their votes because of pressures to return to work was

inadmissible because such pressures were not outside influences within the

meaning of rule 606(b) and rule of civil procedure 327).1

      Although juror Aguilera changed his vote to ―guilty‖ in order to end the

deliberations after he received the call from his doctor’s office, he merely


      1
       Although civil in nature, these cases interpret and apply in rule 606(b),
which is applicable in both criminal and civil cases. The Texas Court of Criminal
Appeals has relied upon the Texas Supreme Court’s interpretation of rule 606(b),
and likewise, we will rely on our sister courts’ interpretations as persuasive
authority here. See, e.g., McQuarrie, 380 S.W.3d at 164 (―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 [rule 606(b)] should follow that of our
state supreme court.‖) (Cochran, J., dissenting); Jeffery v. State, 169 S.W.3d
439, 443 (Tex. App.—Texarkana 2005, pet. ref’d) (noting that decisions of other
appellate courts may be relied upon as persuasive, but not binding, authority).


                                         3
succumbed to personal pressures on his mind and emotions––he was not

persuaded concerning the guilt or innocence of Appellant by information he

received from outside the jury room and the courtroom. Consequently, because

juror Aguilera’s testimony did not fall within the ―outside influence‖ exception to

rule 606(b), it was inadmissible and could not have been proof of juror

misconduct.2 To hold otherwise, as the Majority Opinion does, is to transform the

normal pressures of jury service experienced to some degree by all jurors into

outside influences constituting jury misconduct. See Kirby Forest Indus., Inc.,

772 S.W.2d at 234. As the Houston Fourteenth court explained in Kirby Forest

Industries, regarding pressures on jurors to return to work,

      [T]his seems to be an unfortunate aspect of the jury system about
      which little can be done. There are always pressures not only from
      employers but also family, recreation and personal preferences of
      jurors. We do not consider these normal pressures to be an outside
      influence within the meaning of the rules. Were they to be
      considered an outside influence, few verdicts would stand.

Id.



      2
        The majority holds that rule 606(b) does not apply to the juror’s testimony
at the hearing on the motion for new trial because the State did not object to it;
but the State did assert rule 606(b) objections several times throughout the
hearing and even began the hearing by voicing its opposition to having any
hearing at all because rule 606(b) prohibited the evidence that defense counsel
sought to introduce. [rr4:5-6] Thus, the applicability of rule 606(b) to juror
Aguilera’s testimony was before the trial court and is before us. Cf. Brantley v.
State, 48 S.W.3d 318, 329 (Tex. App.—Waco 2001, pet. ref’d) (refusing to apply
rule 606(b), although noting that testimony would have been inadmissible under
that rule, when the State––unlike the State here––failed to raise any objection on
that basis at the trial level).


                                         4
      I would hold that the trial court did not abuse its discretion by denying

Appellant’s motion for new trial. Because the majority does not, I respectfully

dissent.

                                                SUE WALKER
                                                JUSTICE

PUBLISH

DELIVERED: January 17, 2013




                                      5
