Trevino v. State

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at eight years’ imprisonment.

Appellant’s first ground of error alleges that jury misconduct occurred after the jury retired to deliberate on appellant’s guilt or innocence when new evidence was presented to the jury by a juror concerning the design or layout of the premises in which the shooting occurred and the location of the bullet holes. Two jurors.testified at the hearing on appellant’s motion for new trial. Juror Hodges, testifying for the appellant, related the following:

Q. All right. Now, was there ever any dispute, once again, between you and the other jurors relative to the location of the bullets in the house?
A. Yes, sir. There was.
Q. All right. If you would, just expound on that some, please, ma’am?
A. All right. We had the drawing that Mrs. Wilson had done of the house.
Q. The exibit (sic), the diagram?
A. Right.
*112Q. Okay. Go ahead.
A. All right. At any rate, they were knocking down the fact that I said that the man could stand in one place and not follow Mr. Wilson to the back door.
And they said they (sic) he couldn’t have done that, couldn't have stood there. This is what the controversy really was over, was whether or not Mr. Trevino had stood still and shot the bullets, or whether he had followed Mr. Wilson clear through the house.
Q. I see. All right.
A. All right. They said that the bullets were in the far back door, back in the back, way back, like way back right outside.
Q. All right.
A. And I felt like it ought to be more toward the front, you know.
And one of them jumped up, I don’t know what his name is, I think it was a tile layer, or a contractor and he said that he had worked in a lot of those houses in that part of town where this house was. He said that those houses are very small, but there is sharp corner, that the door facings were very narrow, and that Mr. Trevino would have to go completely through there in order to get the bullet in the back of the door.

The State called the jury foreman, juror Cox, who testified that the dimensions of the living room and house were discussed during deliberations, but that he could not remember or recall whether one of the jurors actually related his personal knowledge of the houses in that area. Thus, juror Hodges’ testimony concerning the introduction of new evidence during the deliberations of the jury went uncontroverted by the State.

The significance of this “new evidence” lies in the fact that the appellant was relying on a theory of either self-defense or voluntary manslaughter. The statement by the juror concerning the layout of the home and the necessary conclusion that appellant followed the deceased through the home while firing at him was of such a character as to negate the appellant’s theory that he responded to a perceived threat without conscious deliberation.

Article 40.03, V.A.C.C.P., states:

“New trials, in cases of felony shall be granted for the following cause, and no other:
7. Where the jury, after having retired to deliberate upon a case, has received other testimony; . . . ” (Emphasis added)

When it is established, by uncontroverted evidence, that the jury has received other evidence after retiring to deliberate the cause and that “evidence” is detrimental to the defendant, a new trial must be granted. See Rogers v. State, Tex.Cr.App., 551 S.W.2d 369; cf. Honeycutt v. State, 157 Tex.Cr.R. 206, 248 S.W.2d 124. As stated in Rogers:

“The statutory provision here applied 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. To adequately safeguard that right from erosion, the Legislature in its wisdom created a per se rule. It is the duty of this Court to follow that mandate.” Id. at 370.

Not only was the statement of the juror concerning the location of the bullets new evidence, but his statement concerning the location of the bullets was erroneous. It is noted that the testimony of State’s witness Bustos relates that he observed bullet holes in the seat by the table where he was sitting and “the others were in the right-hand side of the door area, as you go from the dining room to the kitchen, right-hand side.” Although Officer Coon’s testimony was vague as to the precise location of the bullet holes in the door facing, it is consistent with the testimony of State’s witness Bustos. Officer Coon testified that two slugs were recovered from the northwest corner of the house in the kitchen area, two bullets were recovered from “the door facing,” one from the deceased, and one hole was in the floor under the table. *113All this evidence is consistent with the testimony of the appellant when read in conjunction with the diagram of the house in State’s Exhibit No. 3. We can only conclude that the statements made by the juror during deliberations constituted new evidence, were erroneous, and operated to prejudice the appellant’s case (although we need not “speculate on the probable effects on the jury or the question of injury” resulting from such new “evidence”). See Rogers v. State, supra; Note 802 to Article 40.03, V.A.C.C.P.

In light of our disposition of this ground of error, we need not address appellant’s other contentions.

The judgment is reversed and the cause remanded.