Opinion issued August 26, 2014




                                   In The

                            Court of Appeals
                                  For The

                       First District of Texas
                          ————————————
                           NO. 01-13-00438-CR
                         ———————————
                GREGORY LAMUND SMITH, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


             On Appeal from the 183rd Judicial District Court
                         of Harris County, Texas
                     Trial Court Case No. 1349280


                     MEMORANDUM OPINION

     Gregory Lamund Smith was convicted of injury to an elderly individual and
the jury assessed his punishment at thirty years’ confinement.1                On appeal,

appellant argues that the trial court abused its discretion when it denied his motion

for new trial based on allegations of juror misconduct, and that the court erred by

refusing to allow him to make an offer of proof regarding such allegations pursuant

to Texas Rule of Evidence 103(b). 2 We affirm.

                                     Background3

      Appellant filed a timely motion for new trial alleging that two jurors 4

approached his trial counsel immediately after the trial and informed him that they

believed that appellant was “not guilty” of the charged offense. Both Juror 1 and

Juror 2 claimed that they “had been coerced by other jurors to reach a guilty

verdict in which they did not concur.” Appellant further contended that the

“improper conduct” of the other jurors resulted in a non-unanimous verdict.



1
      See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2013).
2
      TEX. R. EVID. 103(b).
3
      Appellant was found guilty of intentionally or knowingly causing bodily injury
      to an elderly individual by striking that individual with a brick or concrete block.
      Trial testimony indicates that the charged offense occurred after an automobile
      accident involving the elderly complainant’s car and the car appellant was riding
      in. The charge allowed the jury to convict appellant either as the principal or as a
      party. Because appellant’s appellate complaints are focused exclusively upon
      post-trial events (i.e., allegations of jury misconduct, as set forth in his motion for
      new trial, and events which transpired at the hearing on his motion for new trial),
      it is not necessary for us to detail the facts underlying the charged offense.
4
      We will refer to these jurors as “Juror 1” and “Juror 2” for purposes of this
      opinion.


                                             2
Affidavits from both jurors attesting to the underlying facts were attached to the

motion and incorporated by reference.

      Juror 1’s affidavit stated as follows:

         While serving as juror on [this case] I was able to come to the
         conclusion that [appellant] was not guilty of the accused crime.
         While I was not the only juror that felt this way he was still
         convicted. Upon thoroughly reviewing the facts presented in the
         case, I was able to conclude that being in the wrong place at the
         wrong time does not equate [to] guilt. The prosecution failed to
         establish beyond a reasonable doubt that [appellant] struck [the
         complainant] with a brick and or concrete block. I was pressured
         into agreeing to a guilty verdict from the other jurors. I was told “I
         wasn’t doing my civic duties by letting [appellant] walk free.” Not
         only was I being bashed by them for not agreeing on a guilty
         verdict, the dispute of the case was also being discussed [by]
         othe[r] jurors in the room before all evidence was presented. After
         hours of debating my facts against theirs we all came to a
         conclusion of what I thought would be a conviction of [appellant]
         being in the wrong place at the wrong time, but not being guilty of
         the crime of throwing a deadly weapon at the [complainant].
         Minutes after the verdict was read, I was shortly informed that was
         not the case. [Appellant] is not guilty of the crime he was
         convicted for!

      Juror 2’s affidavit stated as follows:

         This is reference to the trial of [appellant]. I felt like I was
         pressured into giving a guilty verdict. My fellow jurors were very
         selective about the evidence they used to convict [appellant]. The
         majority of them had already convicted him before even hearing
         the evidence, for their own personal reasons, which some of them
         voiced. I tried to argue my side of the story or my opinion
         concerning the evidence, but they were determined to convince me
         that he was guilty. It was myself and two other jurors that
         questioned the guilty verdict, but we were outnumbered. I feel like
         [appellant] was unjustly convicted. I deeply feel he was falsely



                                          3
          accused of the crime he was on trial for. I honestly and strongly
          feel that he was innocent of the crime he was on trial for.

      The trial court heard appellant’s Motion for New Trial—forty-two days after

the judgment was signed—at which hearing appellant’s counsel offered the

affidavits from the two jurors into evidence, and told the court that he would also

be calling appellant’s previous counsel to testify. The trial court then questioned

appellant’s counsel about the admissibility of the affidavits, in light of Rule 606(b)

and expressly stated: “I’ve read the affidavits, but I have also read 606(b). . . . And

the affidavits don’t say anything about an outside influence.” See TEX. R. EVID.

606(b) (stating that juror’s statements regarding jury deliberations are inadmissible

for purpose of impeaching jury verdict, but may be admitted for limited purpose of

showing whether any outside influence was improperly brought to bear upon any

juror or to rebut claim that juror was not qualified to serve). 5

      Appellant responded that Juror 2’s affidavit averred that some jurors had

made their minds up as to appellant’s guilt before they heard all of the evidence

and argued that fact this amounted to an “outside influence.” The trial court

disagreed, and asked counsel if he had anything further to add, and appellant’s



5
      The original Texas Rule of Civil Procedure 606(b) is, for all purposes relevant to
      this case, indistinguishable from the current Rule 606(b), which applies in both
      civil and criminal trials. See McQuarrie v. State, 380 S.W.3d 145, 151–52 (Tex.
      Crim. App. 2012) (stating that when civil and criminal rules of evidence merged in
      1998, Texas Rule of Evidence 606(b) incorporated civil version of rule).


                                            4
counsel asked to “make a bill offering some testimony of trial counsel.”6 The State

objected and argued that both the affidavits and trial counsel’s testimony were

inadmissible under Texas Rule of Evidence 606(b) because there was no allegation

that any “outside influence” had been improperly brought to bear upon any juror.

The State also objected that trial counsel’s testimony was inadmissible hearsay.

After considering the motion, the affidavits, and the arguments of counsel, the trial

court implicitly sustained the State’s objection, and expressly denied appellant’s

request to make an offer of proof and his motion for new trial. This appeal

followed.

                                   Offer of Proof

      Appellant argues that the trial court erred when it denied his request to make

an offer of proof after the trial court excluded the affidavits and trial counsel’s

testimony, and he asks this Court to abate the appeal to allow him to make his offer

of proof, and to file any necessary supplemental briefing. The State responds that

even if the trial court erred in not allowing appellant to make his offer of proof, the

error was harmless, and that abatement at this stage is futile because the Court has

all of the information it needs to determine whether the trial court erred in

excluding the testimony.

6
      “Texas recognizes two types of offers to preserve error: the offer of proof
      (formerly referred to as an informal bill of exception) and the formal bill of
      exception.” Fletcher v. Minn. Min. and Mfg. Co., 57 S.W.3d 602, 606 (Tex.
      App.—Houston [1st Dist.] 2001, pet. denied) (citations omitted).


                                          5
A.    Standard of Review

      The right to make an offer of proof is absolute and a trial court does not have

the option to deny such a request. Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim.

App. 1994); Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). A trial

court’s refusal to allow a defendant an opportunity to make an offer of proof,

however, is subject to harmless error analysis. Williams v. State, 964 S.W.2d 747,

753 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (reviewing erroneous

refusal to allow party to make offer of proof under Texas Rule of Evidence 103);

TEX. R. EVID. 103(a), (a)(2) (stating that “[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is

affected, and . . . the substance of the evidence was made known to the court by

offer, or was apparent from the context within which questions were asked”); see

also Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (stating that

standard of review under Rule 103 is same as standard for non-constitutional error

under Texas Rule of Appellate Procedure 44.2(b)); TEX. R. APP P. 44.2 (providing

that non-constitutional errors in criminal cases “must be disregarded” if they do not

affect defendant’s substantial rights).

B.    Analysis

      “The primary purpose of the offer of proof is to enable an appellate court to

determine whether the exclusion [of evidence] was erroneous and harmful. A



                                          6
secondary purpose is to permit the trial judge to reconsider his ruling in light of the

actual evidence.” Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009)

(citation omitted). Here, although the trial court refused to admit the affidavits that

set forth the specific facts supporting appellant’s claim of juror misconduct and

coercion, the record clearly reflects that the trial court considered their content

before he determined that they were inadmissible because they were not within one

of Rule 606(b)’s limited exceptions (i.e., the existence of an “outside influence”

that was improperly brought to bear upon a juror). The affidavits that appellant

sought to admit were attached to his motion for new trial and incorporated by

reference, and are included in the appellate record. Even assuming that the trial

court erred in refusing appellant’s request to make an offer of proof, any error was

harmless because it is apparent from the record what appellant was attempting to

establish by introducing the affidavits. See Williams, 964 S.W.2d at 753 (stating

trial court’s refusal to allow defendant’s offer of proof regarding excluded

testimony was harmless because it was clear from record “exactly what [defendant]

wanted to preserve for appeal”); cf. Pennington v. Brock, 841 S.W.2d 127, 131

(Tex. App.—Houston [14th Dist.] 1992, no writ) (trial court’s refusal to allow

informal bill of exception harmless when record was sufficient to apprise both trial

court and appellate court of nature of excluded evidence).




                                          7
      To the extent appellant is challenging the trial court’s refusal to allow him to

make an offer of proof regarding the exclusion of his trial counsel’s testimony—as

opposed to the exclusion of the affidavits themselves—we find such an argument

unavailing. Appellant alleged in his motion for new trial that two jurors “had been

coerced by other jurors to reach a guilty verdict in which they did not concur”

and that such improper conduct resulted in a non-unanimous “guilty” verdict.

Because the hearing on appellant’s motion for new trial was held more than

thirty days after the judgment was signed, appellant was only entitled to

present testimony in support of that ground. See TEX. R. APP. P. 21.4(a) (stating

defendant may file motion for new trial no later than thirty days after date trial

court imposes or suspends sentence in open court); Cueva v. State, 339 S.W.3d

839, 859 (Tex. App.—Corpus Christi 2011, pet. ref’d) (“[A] defendant may not

amend or enlarge his original motion with additional claims after the thirty-day

period has expired[.]”). Thus, trial counsel could have testified only about what

Juror 1 and Juror 2 told him about what happened during deliberations (i.e., the

alleged “coercion” and “improper conduct” by the other members of the jury, as

set forth in the affidavits attached to the motion for new trial). Moreover, if trial

counsel had testified about what Juror 1 and Juror 2 told him about what occurred

during deliberations, his testimony would have been inadmissible hearsay. See

TEX. R. EVID. 802 (stating hearsay is not admissible), 801(d) (defining “hearsay”



                                          8
as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted”); see also

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369 (Tex. 2000) (stating

there was no competent non-juror evidence of misconduct in that case because

attorney’s testimony “concerning what the jurors told him another juror said” was

hearsay); Mitchell v. S. Pac. Transp. Co., 955 S.W.2d 300, 322–23 (Tex. App.—

San Antonio 1997, no writ) (holding non-juror’s affidavit about what occurred in

jury deliberations was hearsay).

      Accordingly, any error in refusing to allow appellant an opportunity to make

an offer of proof regarding his trial counsel’s testimony is also harmless. See

Williams, 964 S.W.2d at 753 (indicating refusal to allow offer of proof harmless

because record sufficient to preserve complaint for appeal).

C.    Abatement

      Although the standard remedy for such an error is to abate the appeal to

permit counsel to develop the appellate record, abatement in the present case

would be futile because the appellate record, as it currently stands, is sufficient for

this Court to determine whether the trial court erred in excluding the affidavits and

testimony. See Spence, 758 S.W.2d at 599–600 (stating that when trial court

erroneously refuses defendant’s request to make offer of proof, remedy for such

error is to abate appeal to permit counsel to make offer of proof and develop



                                          9
appellate record); Andrade v. State, 246 S.W.3d 217, 226 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref’d) (refusing defendant’s request to abate appeal due to

erroneous denial of opportunity to make offer of proof because defendant did not

argue on appeal that trial court erred in excluding testimony and therefore

abatement “would serve no purpose as it would not result in the development of

any information relevant to this appeal”).

      Appellant argues that, unlike in Andrade, abatement in this case would not

be futile because it would enable him to develop “relevant evidence that his due

process rights were in fact violated.” Since appellant raised no due process claim

in the trial court, he has not preserved such a claim for appellate review. See Clark

v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (holding that evidentiary

objections at trial did not present trial court with opportunity to rule on due process

claim raised on appeal, thus due process claim was forfeited).

                               Exclusion of Evidence

      Appellant argues that the trial court abused its discretion when it excluded

the affidavits of Juror 1 and Juror 2 and trial counsel’s testimony and denied his

motion for new trial based on allegations of juror misconduct contained within

those affidavits.




                                          10
A.    Standard of Review and Applicable Law

      We review a trial court’s rulings on a motion for new trial and on the

admission or exclusion of evidence for an abuse of discretion. See Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (admission or exclusion of

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

for new trial). In conducting our review, we may not substitute our judgment for

that of the trial court. Holden, 201 S.W.3d at 763. Rather, we decide only whether

the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its

discretion in denying a motion for new trial only when no reasonable view of the

record could support the trial court’s ruling. Id. A trial court abuses its discretion

by excluding evidence only if its decision “lies outside the zone of reasonable

disagreement.” Martinez, 327 S.W.3d at 736.

      Juror statements regarding jury deliberations are generally inadmissible to

attack a verdict. TEX. R. EVID. 606(b); see also Glover v. State, 110 S.W.3d 549,

551 (Tex. App.—Waco 2003, pet. ref’d) (stating allowing jurors to impeach their

own verdict violates public policy). A juror may, however, testify after trial about

whether an outside influence was improperly brought to bear upon any juror or to

rebut a claim that the juror was not qualified to serve. TEX. R. EVID. 606(b). The

Court of Criminal Appeals interprets this rule using a plain meaning approach,

determining that an “outside influence” must originate from outside of the jury



                                         11
room, and not from the jurors themselves. See McQuarrie v. State, 380 S.W.3d

145, 151 (Tex. Crim. App. 2012) (citing Golden Eagle Archery, Inc., 24 S.W.3d at

372)). As such, alleged coercive activity in the jury room during deliberations is

not proof of an impermissible “outside influence” for purposes of showing jury

misconduct pursuant to Rule 606(b). See Colyer v. State, 428 S.W.3d 117, 125

(Tex. Crim. App. 2014) (discussing circumstances involving “outside influence”

and stating “outside influence” exception does not include influences such as

coercion by fellow juror); Franks v. State, 90 S.W.3d 771, 800 (Tex. App.—Fort

Worth 2002, no pet.) (holding juror’s affidavit testimony that she was “coerced”

into voting guilty and “finally just gave up and changed her vote” because other

jurors “told her she was being unreasonable and was crazy” did not constitute

“outside influence” for purposes of Rule 606(b)); Hart v. State, 15 S.W.3d 117,

122, 124 (Tex. App.—Texarkana 2000, pet. ref’d) (holding juror’s affidavit

testimony that he was “coerced” into voting guilty did not constitute “outside

influence” for purposes of Rule 606(b)); see also Perry v. Safeco Ins. Co., 821

S.W.2d 279, 281 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (“Proof of

coercive statements and their effect on the jury is barred by [Rule 606(b)].”)

B.    Analysis

      Here, because they relate exclusively to events and conversations which took

place in the jury room and among the jurors themselves, and they do not allege the



                                         12
exertion of any “outside influence,” as interpreted by the Texas Court of Criminal

Appeals, appellant’s proffered affidavits are inadmissible under Rule 606(b).

      In particular, Juror 1 testified that she was bashed by the other jurors for her

views of the case and pressured by them to find appellant guilty. Such claims of

coercion by other jurors do not fall within Rule 606(b)’s exception for testimony

regarding “outside influences.” See Colyer, 428 S.W.3d at 125 (stating Rule

606(b)’s “outside influence” exception does not include influences such as

coercion by fellow jurors). The same is true with respect to Juror 2’s testimony

that she was outnumbered and was pressured by the other jurors to find appellant

guilty. See id.

      Juror 1’s and Juror 2’s testimony regarding the jurors’ differing views of the

evidence, as discussed during deliberations, as well as Juror 1’s claim that some

jurors discussed the case before all of the evidence was presented, and Juror 2’s

claim that other jurors “were very selective about the evidence they used to

convict” appellant and had decided that appellant was guilty before they heard all

of the evidence, do not speak to any “outside influence” and are inadmissible under

Rule 606(b). See id. at 123 (stating Rule 606(b) prohibits jurors from testifying

“about any events or statements occurring during jury deliberations, any of the

jurors’ mental processes, or how an improper outside influence actually affected

the jurors”); see also McQuarrie, 380 S.W.3d at 153 (“The court may not inquire



                                         13
as to the subjective thought processes and reactions of the jury, so jurors should

continue to feel free to raise and discuss differing viewpoints without the fear of

later public scrutiny.”). Similarly, Juror 2’s testimony that some of the jurors

decided that appellant was guilty based on their own “personal reasons, which

some of them voiced,” does not constitute an impermissible outside influence, and

is also inadmissible. See Colyer, 428 S.W.3d at 125 (stating outside influence

exception does not include discussion of juror’s own personal knowledge) (citing

Soliz v. Saenz, 779 S.W.2d 929, 932 (Tex. App.—Corpus Christi 1989, writ

denied) (stating juror’s interjection of personal experience or expertise into

discussion not an “outside influence”)).

      Accordingly, the trial court did not abuse its discretion when it excluded the

affidavits and trial counsel’s testimony on the same topic. See Martinez, 327

S.W.3d at 736 (stating trial court abuses its discretion by excluding evidence only

if its decision “lies outside the zone of reasonable disagreement”). Further, the

affidavits and trial counsel’s testimony were the only evidence appellant offered in

support of his motion for new trial based on juror misconduct. Given that the trial

court did not abuse its discretion when it excluded the affidavits and trial counsel’s

testimony, we cannot say that the trial court’s decision to deny the motion for new

trial was arbitrary or unreasonable. See Holden, 201 S.W.3d at 763 (stating trial




                                           14
court abuses its discretion in denying motion for new trial only when no reasonable

view of record could support trial court’s ruling).

      We overrule appellant’s issues on appeal.

                                     Conclusion

      We affirm the trial court’s judgment.




                                                Jim Sharp
                                                Justice


Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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