                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-16-00334-CV
                              _________________
                              IN RE VICTOR ATUN
________________________________________________________________________

                              Original Proceeding
              418th District Court of Montgomery County, Texas
                       Trial Cause No. 13-07-07301-CV
________________________________________________________________________

                           MEMORANDUM OPINION

      This is a mandamus proceeding wherein relator, Victor Atun (Atun),

contends the trial court abused its discretion by setting aside the jury’s verdict and

granting the motion for new trial filed by the real party in interest, Julie Beth Yelin

(Yelin), in a suit to modify the parent-child relationship. Yelin’s motion for new

trial alleged that a new trial was required because of juror misconduct.

      In the hearing on Yelin’s motion for a new trial, one juror, V.J., testified that

the verdict was a 10-2 verdict, that she was one of two holdouts, and that she spoke

to the amicus attorney after the verdict was rendered, and she also called Yelin’s

office and left a voicemail and then spoke to Yelin the next day. V.J. testified

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about the deliberations of the jury, the votes that were taken, and also that another

juror used his cell phone to look up some information about locations of martial

arts’ studios.

       According to V.J., during voir dire the panel was instructed that the jurors

were “not allowed to look up any information regarding the parties or the case

itself or anything that would influence our decision[,]” and that once the jury was

impaneled the jurors were instructed not to use their cell phones, internet, and

social media during the trial or in regards to the case when they left the trial at the

end of each day. V.J. testified that the written jury charge prohibited the use of cell

phones, internet, or social media during jury deliberations.1 V.J. explained that one


       1
           The trial court verbally instructed the jury prior to deliberations as follows,
in part:

              [I]n arriving at your answers, consider only the evidence
       introduced here under oath and such exhibits, if any, as have been
       introduced for your consideration under the rulings of the Court; that
       is, what you have seen and heard in this courtroom together with the
       law as given you by the Court. In your deliberations you will not
       consider or discuss anything that is not represented by the evidence in
       this case.
       We note that in the five volumes of the reporter’s record for the underlying
trial we find no verbal instruction from the trial court instructing the jurors not to
do internet research. The clerk’s record is not included in this mandamus record.
The Texas Pattern Jury Charges: Family & Probate (2016) (hereinafter P.J.C.)
contains some admonitory instructions that instruct jurors about certain conduct,
including without limitation an instruction relating to internet research and cell
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of the jurors “looked up the type of karate class that [one of the children] was

attending here in The Woodlands, and that there were plenty of facilities in Fort

Bend that [the child] could complete his black belt in, and [the juror] had looked

them up[,]” and that juror shared with the panel that “there were several facilities

that practice the same type of karate that [the child] was practicing now.” V.J.

testified that she saw the juror use his phone during deliberations and that V.J.

believed that the juror’s statement materially influenced other jurors and persuaded

a third holdout juror to change his mind, resulting in a change from a 9-3 vote

count to a 10-2 vote count “within minutes.”2 V.J. agreed that although she stated


phone use. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern
Jury Charges: Family & Probate (2016). For example, P.J.C. 200.1 (“Instructions
to Jury Panel before Voir Dire Examination”) includes an instruction to the venire
to turn cell phones off; P.J.C. 200.2 (“Instructions to Jury after Jury Selection”)
includes instructions to turn cell phones off and tells the jurors that they should not
independently investigate the case by trying to find out more about the case on the
Internet; and, P.J.C. 200.3 (“Charge of the Court”) includes instructions that state
the jurors should not use cell phones or electronic devices during deliberations for
any reason and should not do any independent investigation or research about the
case or conduct any research.
       2
         A substantial portion of the questions to V.J. from Yelin’s attorney and
V.J.’s testimony in response thereto addressed the jury’s deliberations, the count of
the votes at various times during the deliberations, and V.J.’s perceptions regarding
why and how the vote count changed. We note that when Yelin’s counsel
questioned V.J. regarding the vote count during deliberations, Atun’s counsel
objected to the relevance of such testimony and also on the grounds that such
question was “in violation of Texas Rules of Evidence 606(b) that states that upon
inquiring into the validity of a verdict, a juror may not testify to any matter or
statement occurring during the jury’s deliberation other than that that influenced.”
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in her affidavit admitted into evidence that outside influence (the juror’s internet

research) during deliberations probably caused harm to Yelin, V.J. did not choose

all of the wording in the affidavit.

      Juror J.G. testified at the hearing that he recalled the trial court instructing

the venire members not to use cell phones, and the trial court after jury selection

warning the jurors regarding “the use of any outside influence including cellular

devices or any other forms of social media or anything like that.” According to

J.G., the written instructions in the jury charge from the trial court also included

instructions not to use the internet, cell phones, or social media in regards to the

trial and not to use cell phones during deliberations. J.G. testified that the original

vote count was 11-1 in favor of Atun having custody but during most of the

deliberations the vote count was 8-4.3 According to J.G., during deliberations Juror

A.M. looked up information on his phone regarding locations of karate schools in

the Fort Bend County area and Sugar Land in response to one of J.G.’s questions


The trial court overruled the objections. Atun’s counsel also objected to the
relevancy of V.J.’s testimony regarding the court’s instructions to the panel during
voir dire, and Atun’s counsel argued that the law “is very clear that a party can
only inquire as to whether an outside influence affected the deliberations[,]” and
the trial court overruled the objections.
       3
          At the beginning of Yelin’s counsel’s questioning of J.G. regarding the
vote counts during deliberations, Atun’s counsel objected again on the basis that
“this violates Rule 606(b) and is not relevant.” The trial court overruled the
objection.
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and A.M. answered J.G.’s question. J.G. testified that he did not know whether

A.M. was doing internet research on his phone but J.G. did know “that [A.M.]

looked something up in reference to [J.G.’s] question.” J.G. explained that J.G. was

one of the two holdout jurors in the 10-2 verdict and that A.M.’s statement which

A.M. made after scrolling on A.M’s phone did not influence J.G. J.G. testified that

about a week after the trial he was called and asked if anyone on the jury used their

phones during deliberations, and J.G. stated what he recalled about the juror who

was using his phone. According to J.G., the vote changed to the 10-2 vote count

within an hour after A.M. looked at his phone and responded to J.G.’s question.

      Juror K.M. testified at the hearing that she did not recall anyone talking

about internet research during deliberations but that she recalled A.M. talking

generally about karate classes with a group of jurors but K.M. did not hear A.M.

make a clear statement. According to K.M., about “five or ten minutes[]” after the

statement was made, the jury vote changed to the vote that resulted in the verdict.

      Juror C.L. testified that he remembers A.M conducting internet research on

“karate schools in the Fort Bend, Sugar Land area[]” and that A.M. announced

that he found karate classes in the area of where the father lived. C.L. testified that

although he changed his vote after A.M. did his research, C.L. changed his vote




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after reconsidering all the evidence and that A.M. never tried to one-on-one

influence him in any way to sway his vote.

      Juror A.M. also testified at the hearing. According to A.M., during

deliberations he used his cell phone to conduct a Google search to look up

information “to see if there was a location for the [martial] arts facility that the

young man attends in the area where his father lives.” A.M. testified that he did not

find a specific academy in Sugar Land that had the same style of martial arts, but

that he “told the jurors that . . . like many other academies as is the one my

daughter attends, that they have multiple facilities all over town and that they

shouldn’t have a problem finding a place where they could do his [martial] arts.”

According to A.M., he told the other jurors he believed the father would have the

responsibility of finding a place for the child to continue his martial arts. A.M.

denied that his purpose in conducting the online research during deliberations was

to sway the vote of any “one particular” juror or to make any holdout juror feel

better about voting for Atun. When A.M. was asked by Atun’s counsel if he

believed his statement to the other jury members was material in any way to the

decision making in the room, Yelin’s counsel objected on the basis of relevancy

and that it violated “procedure 327, Rule of Evidence 11, 606([b]) as to the state of

mind of other jurors and to what they personally thought went into their feelings as

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relates to their voting.” The trial court sustained the objection. A.M. testified that

he “was not told that [he] could not use [his] phone [during deliberations]

whatsoever[,]” but that he was told he was “not supposed to have third-party

influence[]” and that he knew he “was not supposed to conduct research regarding

any of the parties involved or any of the attorneys involved.”

      The trial court explained on the record that the motion for new trial was

granted due to juror misconduct. The trial court explained the basis for its ruling

as follows:

      . . . I don’t want you to feel like your time was wasted; however, I can
      tell you that doing any type of internet research of any kind that is
      related to the case and discussing it during deliberations is bringing
      information into the jury room which is a sacred, closed-off place, and
      the only information that the jury can consider is the evidence that
      was admitted in the courtroom. Okay. It's unfortunate that this will
      have to be tried again, but I don’t want y’all to go away thinking that
      your time wasn’t valuable or that it wasn’t useful; but I'm left with no
      choice, under the terms of the law. I can tell you it is not my desire to
      retry this case either. But the law is clear and this is what will have to
      be done.

      After reviewing the petition, the response, and the appendices, we conclude

this record does not support the granting of a new trial under Rule 327(a) of the

Texas Rules of Civil Procedure, and the evidence at the hearing violated Rule

327(b) and Texas Rule of Evidence 606 because a juror “may not testify as to any

matter or statement occurring during the course of the jury’s deliberations or to the

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effect of anything upon his or any other juror’s mind or emotions . . .” See Tex. R.

Civ. P. 327(a)-(b); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369-72

(Tex. 2000) (under Rule 327(a) the movant must establish that the misconduct

occurred, it was material, and probably caused injury; Rule 327(b) allows a juror to

testify about whether any outside influence was improperly brought to bear upon

any juror, but it does not allow jurors to discuss matters or statements that were

made by the jurors during deliberations); Brandt v. Surber, 194 S.W.3d 108, 134

(Tex. App.—Corpus Christi 2006, pet. denied) (juror’s affidavit that stated other

jurors discussed newspaper articles during deliberations did not constitute evidence

of an outside influence, and the affidavit therefore contained incompetent evidence

of juror misconduct under Rule 327(b)). The mandamus record demonstrates that

the trial court failed to articulate a reasonably specific and valid reason for granting

a new trial that is supported by the record and the applicable law. See In re United

Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012). We conditionally grant

Atun’s petition for writ of mandamus. We are confident that the trial court will

vacate its order granting Yelin’s motion for new trial and enter judgment on the

jury’s verdict. The writ will issue only if the trial court fails to comply.




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      PETITION CONDITIONALLY GRANTED.



                                              PER CURIAM

Submitted on October 19, 2016
Opinion Delivered December 15, 2016

Before Kreger, Horton, and Johnson, JJ.




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