Reversed and Remanded and Majority and Dissenting Opinions filed August
29, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00785-CR

                       ZAID ADNAN NAJAR, Appellant
                                        v.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1503083

                             MAJORITY OPINION

      The ultimate issue in this appeal concerns whether the jury followed the trial
court’s charge: “During your deliberations in this case, you must not consider,
discuss, nor relate any matters not in evidence before you. You should not consider
nor mention any personal knowledge or information you may have about any fact
or person connected with this case which is not shown by the evidence.” As a
society, we generally balance the need for confidentiality in jury deliberation
versus the integrity of the jury trial in favor of jury confidentiality.

       We also generally presume the jury follows the court’s charge. This appeal
presents a rare instance in which what occurred during deliberation is open for
review. And because the uncontroverted evidence is the jury did not follow the
court’s charge and considered outside evidence that was adverse on a critical issue,
we must reverse.

       A jury found appellant Zaid Adnan Najar guilty of the third-degree felony of
fleeing, using a vehicle, from a peace officer who was attempting lawfully to
detain him. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A).1 The trial court
assessed punishment at ten-years imprisonment, suspended the sentence, and
placed appellant on four-years community supervision. In two issues, appellant
asserts the trial court erred in denying his motion for new trial based on (1) other
evidence received by the jury during deliberation and (2) a claim of ineffective
assistance of counsel regarding his trial counsel’s advice on the immigration
consequences of the State’s plea offer. Because we find the trial court erred in
denying appellant’s motion for new trial, we reverse the trial court’s judgment and
remand the case for further proceedings.2



       1
          Vernon’s Texas Codes Annotated Penal Code contains an editorial note which suggests
that the legislature has enacted two versions of Penal Code section 38.04(b)(1), (2). While this is
not a contested issue in this appeal, and we make no explicit holding, it nonetheless appears that
only one version of subsection 38.04(b)(1), (2) exists. See Act of May 23, 2011, 82d Leg., R.S.,
ch. 391, § 1, 2011 Tex. Gen. Laws 1046, 1046, amended by Act of May 24, 2011, 82d Leg.,
R.S., ch. 839, § 4, 2011 Tex. Gen. Laws 2010, 2011, amended by Act of May 27, 2011, 82d
Leg., R.S., ch. 931, § 3, 2011 Tex. Gen. Laws 2321, 2322.
       2
         A defendant’s general right to appeal under Code of Criminal Procedure article 44.02
has always been limited to appeal from a “final judgment.” State v. Sellers, 790 S.W.2d 316, 321
n.4 (Tex. Crim. App. 1990). Although appellant argues the trial court’s error was in denying his
motion for new trial, we may only reverse the judgment being appealed and not merely the order
denying the motion for new trial.

                                                2
                                   BACKGROUND

   A. Appellant’s Arrest

      On March 17, 2016, at approximately 10 p.m., Officer Bachar of the
Houston Police Department observed a white Ford Mustang driving at 100 miles
per hour in the far-left lane of the I-610 freeway in the Galleria area. Bachar also
noticed flashing red-and-blue lights emanating from the vehicle. At first glance,
Bachar thought the vehicle was a law enforcement vehicle because of the flashing
lights. However, upon a closer look, he realized it was a private vehicle. At that
point, Bachar turned on his own emergency equipment, which included flashing
lights and a siren. Bachar followed the vehicle for approximately two miles before
the vehicle pulled over. During that time, the vehicle’s driver cut across three lanes
of traffic into the far-right lane. Bachar testified that he believed the driver was
going to exit the freeway at this point; however, the driver then went back across
the three lanes of traffic until the vehicle was again in the far-left lane. At no time
did the vehicle’s driver use his turn signals to indicate lane changes. When Bachar
was within twenty-five feet of the vehicle, it came to a sudden stop in the right-
hand shoulder of the freeway. Bachar then approached the vehicle and identified
appellant as the driver.

   B. Trial

      During her opening statement, appellant’s trial counsel emphasized that
appellant was already driving over 100 miles per hour when Bachar turned on his
lights and siren. Counsel pointed out that appellant’s vehicle was surrounded by
other vehicles on the freeway for the two-mile period during which Bachar
attempted to signal to appellant to pull over. Counsel further emphasized that it
was not until Bachar was within close range of appellant that appellant
immediately decelerated. Bachar was the only witness to testify. Both the State and
                                          3
appellant’s trial counsel asked Bachar questions directed to illuminate whether
appellant knew that Bachar was attempting to pull him over. In closing, appellant’s
trial counsel argued that appellant “did not realize that [sic] officer was trying to
pull him over until the second the officer got behind him.” The State argued that
appellant’s weaving between lanes and speeding made it clear he knew he was
being pulled over. Ultimately, the jury was left to determine whether appellant was
aware that Bachar was attempting to detain him.

      After briefly deliberating, the jury returned with a guilty verdict.

   C. Post-trial

      Attorneys for the State and for appellant interviewed the jury after
announcement of the verdict. One of the jurors informed the attorneys that while
they were in the jury room deliberating, they heard a siren coming from outside on
the street fifteen floors below. The members of the jury reasoned that if they could
hear the siren while inside the building, appellant should have been able to hear the
officer’s siren while in his vehicle. The juror said this reasoning was used by the
jury as a whole in finding appellant guilty of the charged offense.

      Appellant filed a motion for new trial arguing that (1) the jury received
adverse outside evidence during deliberation and (2) appellant received ineffective
assistance of counsel. The trial court held a hearing on the motion. Before
appellant and the State presented their arguments, appellant’s counsel offered
affidavits from appellant’s trial counsel and co-counsel in which each attorney
recounted the jury’s comments regarding hearing a siren while deliberating.
Appellant’s counsel pointed out that the State agreed with the “factual basis of the
affidavit” and that there was solely a “dispute on the law.” Counsel for the State
replied, “that’s correct.” And when asked by the trial court whether the State had
any objections to the affidavits, the State’s counsel replied, “no objections, your
                                          4
honor.” The court admitted the affidavits into evidence. Appellant’s counsel then
presented his arguments on the two issues. After which, the State responded by
arguing that the allegations in the affidavit did not constitute an “outside
influence.”3

       After listening to arguments and reviewing the affidavits presented by both
parties, the trial court denied the motion for new trial on both grounds. On appeal,
appellant argues the trial court erred in denying his motion for new trial on the
same grounds he raised in his motion for new trial.

                                         ANALYSIS

A. Other Evidence

       In his motion for new trial, appellant argued that Texas Rule of Appellate
Procedure 21.3(f) required that the trial court grant him a new trial because the
siren heard by the jury constituted “other evidence.” See Tex. R. App. P. 21.3(f)
(defendant must be granted new trial when, after retiring to deliberate, the jury has
received other evidence). The trial court denied appellant’s motion, concluding that
the jurors could have drawn on their “general experience of hearing sirens.”

       1. Standard of Review

       Ordinarily, the grant or refusal of a motion for new trial is committed to the
discretion of the trial court. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim.
App. 2012). However, Texas Rule of Appellate Procedure 21.3(f) provides that a
defendant must be granted a new trial when, after retiring to deliberate, the jury has

       3
         The dissent argues this was sufficient to preserve an objection based on Texas Rule of
Evidence 606(b), as it references the language used in that rule. See Tex. R. Evid. 606(b). We
disagree. The State’s complaint regarding “outside evidence” was not presented until after the
affidavit was admitted into evidence and after appellant’s counsel made his arguments.
Moreover, the State never made a formal objection to the affidavit at any time during the
hearing.

                                              5
received other evidence. Tex. R. App. P. 21.3(f). To be entitled to a new trial under
this provision, the movant for new trial must show both: (1) the jury received other
evidence and (2) the evidence was detrimental. Gibson v. State, 29 S.W.3d 221,
224 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). At a hearing on the motion
for new trial, the trial judge is the trier of fact and the sole judge of the credibility
of the witnesses. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). If there
is no fact issue that the jury received other evidence, and the evidence was adverse
to the defendant, then reversal is required. Rogers v. State, 551 S.W.2d 369, 370
(Tex. Crim. App. 1977).

      2. Analysis

      Appellant contends that during the new-trial hearing the State conceded that
the “receipt” prong of the applicable two-part test has been met. At the hearing,
appellant provided an affidavit from his trial counsel stating the following:

      During our conversation with the jury, one of the jurors told us that
      during their deliberations, while they were in the jury room, the
      members of the jury heard a siren outside on the street, and that the
      fact they could hear the siren from inside the jury room influenced
      their verdict. They believed that if they could hear a siren from inside
      the building, that [appellant] could have heard an officer’s siren inside
      his car.

The State’s counsel affirmed that it agreed with the factual basis of this affidavit,
specifically that the “conversation with the jury took place.” The State neither
contested that the jury heard and discussed the siren while deliberating, nor that the
members of the jury had relied on their ability to hear the siren in finding appellant
guilty. Further, the State did not present evidence to counter trial counsel’s
affidavit. Because there is no evidence contradicting trial counsel’s unobjected-to
affidavit, no factual dispute in that regard was presented for the trial court’s
resolution. This satisfies the “receipt” prong of the test. See Alexander v. State, 610

                                           6
S.W.2d 750, 751–52 (Tex. Crim. App. [Panel Op.] 1980) (where testimony as to
what occurred in jury room is not controverted and shows that jury during
deliberation received other and new evidence, then there is no issue of fact for trial
court’s determination); Rogers, 551 S.W.2d at 370 (holding unless there was fact
issue raised on whether jury actually received other evidence, former Code of
Criminal Procedure article 40.03(7)4 required reversal if evidence was adverse to
defendant); Carroll v. State, 990 S.W.2d 761, 762 (Tex. App.—Austin 1999, no
pet.) (no conflicting evidence that jury received “other evidence” during
deliberation).

       We consider the character of the evidence in light of the issues before the
jury in our determination of the “detrimental” prong of the test. Alexander, 610
S.W.2d at 753; Carroll, 990 S.W.2d at 762. One (if not, the) central issue in this
evading-detention case was whether appellant was aware that Bachar was
attempting to detain him. Appellant’s counsel argued that appellant was not aware
he was being pulled over until appellant came to an abrupt stop when Bachar
narrowed down the distance between his vehicle and appellant’s vehicle.
Appellant’s ability to hear Bachar’s siren was critical to the issue of whether
appellant knew he was being signaled by Bachar to pull over. The siren heard by
the members of the jury sitting inside on the fifteenth-floor of a building—while
they were deliberating on whether appellant was in fact evading detention from an
officer with an activated siren—was detrimental to appellant in their resolution of

       4
         Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 3, § 5, art. 40.03, 1973 Tex. Gen.
Laws 1122, 1127–28, repealed by Tex. R. App. P.30(b)(7), 11 Tex. Reg. 1939, 1944, 49 Tex.
B.J. 558, 564 (Tex. Crim. App. Apr. 10, 1986, eff. Sept. 1, 1986); see Act of May 27, 1985, 69th
Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472, 2472 (authorizing promulgation of Texas
Rules of Appellate Procedure and repeal of portions of Code of Criminal Procedure); see also In
re M.A.F., 966 S.W.2d 448, 450 n.1 (Tex. 1998) (discussing history of and “almost identical
language in” former article 40.03(7) and its successors former Texas Rule of Appellate
Procedure 30(b)(7) and current rule 21.3(f)).

                                               7
this issue. See Deary v. State, 681 S.W.2d 784, 788 (Tex. App.—Houston [14th
Dist.] 1984, pet. ref’d) (statement by juror concerning his experience in paying
more than $200.00 for a cassette player “was detrimental to the appellant because
his guilt on the felony charge depended upon whether the value of the cassette
player exceeded $200.00”). As stated in trial counsel’s affidavit, the jury’s ability
to hear the siren from fifteen floors above led the members of the jury to believe
that appellant must have heard Bachar’s siren, but deliberately ignored it in an
attempt to evade detention. This is supported by the uncontested affidavit provided
by trial counsel stating, “that the fact they could hear the siren from inside the jury
room influenced their verdict.”5 Rule 21.3(f) mandates reversal when the jury
received other evidence that was detrimental. Carroll, 990 S.W.2d at 762; see
Rogers, 551 S.W.2d at 370. Consequently, the trial court lacked discretion to deny
appellant’s motion for new trial. For this reason, we sustain appellant’s first issue.6


       5
          The State argues that Texas Rule of Evidence 606(b) prohibited the trial court from
considering evidence inquiring into the validity of the jury’s verdict because the siren heard by
the jury does not fall within the outside-influence exception. See Tex. R. Evid. 606(b)
(prohibiting jurors from testifying about any statement made or incident that occurred during
jury’s deliberation, except where outside influence was improperly brought to bear on any juror).
The State did not, however, object to the evidence on this or any other ground and therefore has
waived its complaint. See Lee v. State, 816 S.W.2d 515, 517 (Tex. App.—Houston [1st Dist.]
1991, pet. ref’d) (State waived rule 606(b) argument on appeal when it failed to make such
objection in hearing below). The State instead expressly stated it had “[n]o objections” to
appellant’s evidence. Accordingly, an analysis under rule 606(b), as proffered by the State, is not
applicable under the circumstances.
       6
          The dissenting opinion disputes that the siren here functioned as other evidence based
on an average juror’s “common knowledge of the sound of a siren” and on the frequency of
sirens heard in downtown Houston. However, this position ignores the unique circumstances in
this case. This was not a jury merely hearing busy downtown sounds while deliberating. Nor was
it a jury merely drawing on general common knowledge of sirens. Rather, the jury focused on
one particular siren it heard while deliberating; thus, the jury discussed and considered
information it received about a fact connected with this case which was not shown by the trial
evidence. This was contrary to the court’s charge, and it was used to resolve a critical issue in
appellant’s case against him and in favor of the State.
       The issue in this appeal is not whether a criminal conviction should be reversed because
                                                8
       There is no additional requirement to show harm. See Alexander, 610
S.W.2d at 753 (“[T]his Court will not speculate on the probable effects on the jury
or the question of injury.”); Hunt v. State, 603 S.W.2d 865, 869 (Tex. Crim. App.
[Panel Op.] 1980) (“The State’s contention that appellant must show harm by the
jury’s receipt of this ‘other evidence’ is without merit.”); Deary, 681 S.W.2d at
788 (“We need not consider, nor would it be proper to consider, [juror’s] statement
that [other juror’s] comments made [him] change his mind to vote guilty.”). This is
because the statutory provision applied here was designed by the Legislature to
guarantee the integrity of the fundamental right to trial by jury by restricting the
jury’s consideration of evidence to that which is properly introduced during the
trial. Rogers, 551 S.W.2d at 370. To adequately safeguard that right from erosion,
the Legislature in its wisdom created a per se rule, and it is the duty of this court to
follow such mandate. See Alexander, 610 S.W.2d at 753 (citing Rogers, 551
S.W.2d at 370 (interpreting rule 21.3(f)’s predecessor statute, former Code of
Criminal Procedure article 40.03(7), to require reversal without conducting harm
analysis)); see also Garza v. State, 630 S.W.2d 272, 276 (Tex. Crim. App. [Panel
Op.] 1981) (op. on reh’g) (declining to conduct harm analysis under predecessor
statute); Molina v. State, No. 07-00-0029-CR, 2003 WL 141641, at *4 (Tex.
App.—Amarillo Jan. 21, 2003, pet. ref’d) (“Because appellant established both
elements necessary to show his entitlement to a new trial under Rule 21.3(f), we
must, and do, sustain his issue.”); McGary v. State, 658 S.W.2d 673, 674–75 (Tex.
App.—Dallas 1983, pet. ref’d) (declining to conduct harm analysis under
predecessor statute); Chew v. State, 804 S.W.2d 633, 638–39 (Tex. App.—San
Antonio 1991, pet. ref’d) (same); Shivers v. State, 756 S.W.2d 442, 444–45 (Tex.
App.—Houston [1st Dist.] 1988, no pet.) (same); Deary, 681 S.W.2d at 788

the jury heard a siren in downtown Houston while deliberating. The issue is whether the jury
followed the court’s charge.

                                             9
(same).7

                                        CONCLUSION

       We reverse the trial court’s judgment and remand the case for further
proceedings. Tex. R. App. P. 43.2(d).8




                                            /s/     Charles A. Spain
                                                    Justice


Panel consists of Justices Christopher, Bourliot, and Spain. (Christopher, J.,
dissenting.)
Publish. Tex. R. App. P. 47.2(b).




       7
          The Carroll court acknowledged that “[r]ule 21.3(f) mandates a new trial,” but also
alternatively analyzed harm “[a]ssuming the constitutional harmless analysis applies.” 990
S.W.3d at 762–63. We decline to do so.
       8
         We do not reach appellant’s argument on ineffective assistance of counsel because of
our disposition of appellant’s first issue (reverse and remand for further proceedings). See Tex.
R. App. P. 47.1.

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