                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-11-00281-CR


FELIX DELEON                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                        MEMORANDUM OPINION 1

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      In one issue, Felix Deleon contends that the application of rule of evidence

606(b) in his murder trial violated the Texas constitutional prohibition against

retroactive laws. We affirm.

                                   Background

      The body of Robert Contreras was found in 1992. The Texas Rangers

assisted with investigating the case but it went cold; a cold case investigator
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       See Tex. R. App. P. 47.4.
began reviewing the case in 2008. As a result of the investigation, appellant was

arrested in April 2009, and a jury convicted him of voluntary manslaughter.

Appellant did not testify at his trial.

       Appellant filed a motion for new trial, to which he attached a juror affidavit.

The juror averred that “the fact that [appellant] did not testify in his own defense

was also brought up in deliberations. I must confess that I am puzzled by his

decision not to do so. Although we as jurors were instructed not to consider it, it

still does not mesh with my idea of an innocent man.” Although the juror said he

followed the law, he also averred that the jury “did discuss [appellant’s] failure to

testify in our deliberations, and I know it bothered some of the other jurors as

well.” The State objected to the affidavit under rule of evidence 606(b). Tex. R.

Evid. 606(b). The trial court did not rule on the State’s objection, but it denied the

motion for new trial.

                                    Issue on Appeal

       Appellant contends that he is entitled to a new trial because the trial court

erroneously applied the current version of rule 606(b) retroactively. According to

appellant, the trial court should have considered the juror’s affidavit under the

former version of rule 606(b), which was effective at the time of the offense; thus,

the application of current rule 606(b) was a retroactive application of a law in

violation of Texas Constitution article I, section 16.     Tex. Const. art. I, § 16.

Appellant also contends that although this issue was never raised at trial, it was

not required to be preserved.


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                                     Analysis

      The current version of rule 606(b) provides as follows:

             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). Under rule 606(b), a juror may testify about any improper

outside influence or the juror’s qualifications to serve but cannot testify about

matters or statements occurring during deliberations.      Musgrove v. State, 82

S.W.3d 34, 38 (Tex. App.––San Antonio 2002, pet. ref’d). The former version of

rule 606(b) read as follows:

              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 course of the jury’s deliberations or to the effect of anything upon
      his or any other juror’s mind or emotions as influencing him to assent
      to or dissent from the verdict or indictment or concerning his mental
      processes in connection therewith, except that a juror may testify as
      to any matter relevant to the validity of the verdict or indictment.
      Nor may his affidavit or evidence of any statement by him
      concerning a matter about which he would be precluded from
      testifying be received for these purposes.

Former Tex. R. Crim. Evid. 606(b) (emphasis added). Under former rule 606(b),

a juror could testify about both internal and external influences on the verdict.




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Buentello v. State, 826 S.W.2d 610, 613 (Tex. Crim. App. 1992); Musgrove, 82

S.W.3d at 38.

      Although appellant attached the affidavit to his motion for new trial, he

never argued to the trial court that the application of rule 606(b) would operate

retroactively in a way that would violate the Texas Constitution; thus, he did not

preserve this issue for appeal.      Appellant contends, nevertheless, that the

application of rule 606(b) operates similarly to an ex post facto law and, thus, that

he was not obligated to preserve such an argument in the trial court.           See

Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (discussing

systemic rights that cannot be forfeited by failure to preserve at trial); Ieppert v.

State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995) (holding that complaint of

violation of Ex Post Facto Clause need not be preserved at trial). Assuming that

appellant is correct that this argument did not need to be preserved at trial, 2 we

nevertheless overrule his issue.

      The retroactive laws provision of the Texas Constitution operates only to

prohibit the application of laws that disturb vested, substantive rights. Ibarra v.


      2
        This appears to be one of those rare circumstances in which
determination of preservation requires a review of the merits, i.e., to determine if
appellant’s complaint actually implicates the Texas constitution’s prohibition
against retroactive laws––and, thus, involves a potential systemic requirement––
we must determine if the trial court’s complained of action violates that
prohibition. See Lopez v. State, 928 S.W.2d 528, 534 (Tex. Crim. App. 1996)
(explaining that law violates ex post facto prohibitions in federal and state
constitutions if it “deprives one charged with a crime of any defenses that were
available when the act was committed”).


                                         4
State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828

(2000). Laws altering procedure do not generally fall within the prohibition. Id.

“Procedure” refers to changes in the process by which a criminal case is

adjudicated as opposed to changes in the substantive law of crimes. Ex parte

Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993). Procedural statutes and

rules control pending litigation from their effective date, absent an express

provision to the contrary. Boyle v. State, 820 S.W.2d 122, 144 (Tex. Crim. App.

1991) (op. on reh’g), cert. denied, 503 U.S. 921 (1992); Musgrove, 82 S.W.3d at

38.

      The order approving the revisions to the Texas Rules of Evidence stated

that the amended rules took effect March 1, 1998 and were to “apply to all

proceedings on or after that date.” See Musgrove, 82 S.W.3d at 39 (citing Court

Order on Final Approval of Revisions to the Texas Rules of Evidence, printed in

61 Tex. Bar J. 373 (Apr. 1998)).

      We agree with the San Antonio Court of Appeals’s reasoning in Musgrove,

in which the appellant made a similar argument to the one appellant makes here:

      Because current Rule 606(b) was in effect at the time of the
      defendant’s new trial hearing, it was applicable as a procedural
      provision and the trial court was bound to follow it during the
      hearing.

             The defendant attempts to circumvent such a conclusion by
      arguing that the retroactive application of current Rule 606(b)
      disturbs his substantive right to appellate review of his complaint.
      Although the defendant has a vested, substantive right to
      legislatively-granted appellate review, he has no vested right in the
      procedural mechanisms for reviewing his conviction or punishment.


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      Therefore, the trial court’s application of the current version of the
      rule did not violate the Texas Constitution’s prohibition of retroactive
      laws, and did not violate the defendant’s due process rights.

Id. (citations omitted); see also Janecka v. State, 937 S.W.2d 456, 460–61 (Tex.

Crim. App. 1996) (holding that application of evidentiary rule that was not in

effect at time of murder but which did not affect defendant’s notice of the criminal

nature of his actions or otherwise violate ex post facto clause did not violate

constitutional prohibition against retroactive laws), cert. denied, 522 U.S. 825

(1997).

      Appellant contends that the application of rule 606(b) here “directly impairs

[his] substantive right to not have his failure to testify held against him because

when [he] chose not to testify . . . the jury held that against him.” In other words,

appellant contends he had a vested right to a new trial based on the information

in the juror’s affidavit. But the procedural mechanisms for reviewing a conviction

are not vested, substantive rights; therefore, even if an appellant would be

entitled to relief on appeal––or, here, a new trial––under a prior rule but not

under a current one, the constitutional prohibition against retroactive laws would

not be violated. See Fowler v. State, 991 S.W.2d 258, 259, 261 (Tex. Crim. App.

1999) (holding that change in harm rules of appellate procedure, which had the

effect of changing outcome of appeal under current version, did not violate

prohibition against retroactive laws).




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      Accordingly, we overrule appellant’s sole issue on appeal and affirm the

trial court’s judgment.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

WALKER, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 16, 2013




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