McIntire v. State

*655OPINION ON STATE’S AND APPEIr LANT’S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offenses of aggravated sexual abuse of a child and of indecency with a child and assessed punishment by the jury of 25 years and 5 years, respectively, which terms of imprisonment were ordered to run concurrently by the trial court. Both convictions stemmed from a single indictment.

On appeal the Thirteenth Court of Appeals in Corpus Christi affirmed the conviction for aggravated sexual abuse, but reversed the conviction for indecency with a child. McIntire v. State, 662 S.W.2d 65 (Tex.App. — Corpus Christi 1983). The court ruled that the trial court, having found appellant guilty upon the jury’s verdict as to the first count in the indictment, was without legal authority to enter a judgment and pronounce sentence on the subsequent count. Accordingly the judgment was reformed to reflect conviction of aggravated sexual abuse only. We granted the State’s petition for discretionary review to examine this action by the court of appeals.

We also granted appellant’s petition in order to review the judgment of the court of appeals insofar as it pertained to purported error in the trial court’s disposition of appellant’s motion for new trial.

I.

The first count of the indictment alleged that on January 25, 1982 the appellant engaged in deviate sexual intercourse by placing his genitals in contact with the anus of the complaining witness, a child younger than fourteen years of age and not appellant’s spouse. The third count alleged that on the same day appellant engaged in sexual contact by touching the genitals of the same complaining witness. Both acts are alleged to have been committed with intent to arouse and gratify the sexual desire of appellant.

The charge to the jury authorized it to convict appellant, should the proof warrant it, of both aggravated sexual abuse of a child1 and indecency with a child. This the jury did. Guilt was adjudicated and punishment imposed in a single judgment.

Though no defect was called to the attention of the trial court or expressly argued to the court of appeals, the court of appeals nevertheless reformed the judgment to delete the conviction for indecency, relying on this Court’s holding in Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972) and Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978).

This Court has recently reaffirmed that when separate and distinct offenses alleged in one indictment arise from a single criminal transaction, “the more reasoned view is that a trial court is ‘without legal authority’ to enter judgment and impose sentence for more than one offense. Ex parte Easley, [supra].” Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). Accordingly, in Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985) we granted habeas corpus relief by vacating the second of two convictions which had been obtained at one trial on a single indictment. Because both convictions arose from a single criminal transaction, we did not look to see whether an objection had been lodged at trial or whether the error had been raised on appeal.2

*656Thus the court of appeals in the instant cause was correct in relying on Easley, supra, if it can be said that both offenses for which appellant was convicted grew out of the same criminal transaction. The evidence adduced at trial indicates they did.

Ms. Maria Gonzales testified that on January 25, 1982 she lived in an apartment right next door to appellant, that two windows of her apartment faced two of the windows in appellant’s apartment, and that these facing windows were about six feet apart. Ms. Gonzales and two other witnesses, Efrain Estrada and Demetrio Me-drano, testified that sometime in the early afternoon of January 25,3 they together observed appellant through the facing windows performing anal intercourse upon the complaining witness.4 Testimony of the eleven year old complaining witness confirmed this observation. Estrada also testified that at or about this same time he observed appellant’s hand on the complaining witness’ penis. The complaining witness confirmed at least that appellant “tried to grab” his penis.

Although the exact time frame within which the anal intercourse and the touching of the complaining witness’ genitals occurred is not well developed in the record, it is clear from the accumulation of testimony that these acts took place either contemporaneously or within minutes of one another. Further, it is clear that a single guilty intent ran through and connected both acts, viz: the intent to arouse and gratify the appellant’s sexual desire through some form of sexual contact5 with the complaining witness. See Drake, supra, citing Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377 (1922) and Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766 (Ct.App.1892).

We conclude that the allegations of aggravated sexual abuse of a child and of indecency with a child arose in the same criminal transaction. The trial court was therefore without legal authority to authorize a conviction on both count one and count three of the instant indictment, and the court of appeals was correct to reform the judgment as it did. Drake, supra. Siller, supra.

II.

A.

Appellant was sentenced on May 13, 1982. On May 24 appellant filed a pro se motion through which he “NOTIFIED] [the district] COURT OF HIS INTENTION AND DESIRE TO APPEAL FOR NEW TRIAL.” It is not clear whether this handwritten motion was meant to be a notice of appeal or a motion for new trial. What is certain from the motion is that appellant’s attorneys were out of town and appellant, operating upon the erroneous assumption that some document had to be filed within “THE 10 DAY PERIOD OF TIME ALLOWING APPEAL,”6 was attempting to protect his right to pursue a new trial in any fashion open to him. A formal motion for new trial with supporting affidavits was filed on June 11, along with a motion to set a hearing on the motion for new trial. In its order dated June 14, denying the latter motion, the trial court found the motion for new trial to have been “untimely filed, Notice of Appeal having been given May 24, 1982. Such motion additionally presents nothing for hearing.” A formal notice of appeal was filed on June 24.

*657On appeal it was contended that the trial court erred in finding appellant’s motion for new trial to have been untimely filed, in finding that said motion presented “nothing forhearing,” and in overruling same without granting a hearing. The court of appeals concurred in the trial court’s determination that the motion and supporting affidavits presented no matter calling for a new trial, and for this reason found the trial court’s determination that the motion was untimely presented to have been harmless; “that is, none of his grounds of error were waived, and he is not prejudiced on this appeal.” McIntire, supra, at 68. Further, finding that the record and supporting affidavits were a sufficient basis upon which the trial court could evaluate the contentions in appellant’s motion for new trial, the court of appeals found no abuse of discretion by the trial court in overruling the motion without a hearing.

B.

Initially we observe that the trial court did err in ruling appellant’s motion for new trial to have been untimely presented. The trial court apparently construed appellant’s pro se motion of May 24 to be a notice of appeal, the filing of which divested the court of jurisdiction to entertain the subsequent motion for new trial. However, this Court has recently held that notice of appeal filed prior to an otherwise timely filed motion for new trial will not deprive the trial court of jurisdiction to rule on that motion. Ex parte Drewery, 677 S.W.2d 533 (Tex.Cr.App.1984). Assuming then as the trial court did, that appellant’s pro se motion was a notice of appeal, this would not prevent the trial court from ruling on the motion for new trial. Inasmuch as its denial of the motion for new trial and failure to set a hearing thereon were prem-feed on the untimeliness of the motion, the trial court erred.

Whether this error was harmless, as the court of appeals ruled, depends upon our resolution of appellant’s remaining contentions. To these we now turn.

C.

In his brief to the court of appeals appellant identified three points upon which he contended his motion and affidavits presented matters which should have been taken up in a hearing. He argued that the affidavit of one of the jurors at his trial showed “an implied agreement by the jurors to abide by [a] quotient verdict;”7 that one of his own character witnesses conversed prejudicially with the affiant juror during a break in the jury’s deliberations;8 and that jury misconduct in the form of a discussion of parole “resulted in an unfair verdict against [appellant] and was fundamental error in violation of due process of law.”9 In conclusion appellant asserted that “[bjecause of these matters, and other matters set out in the Motion for New Trial, the trial judge should have heard the motion.”

The court of appeals examined each of these grounds for new trial in turn, and, based upon “the record itself and ... the juror’s affidavit,” agreed with the trial court that the motion for new trial “presented nothing for hearing.” Having found the affidavit insufficient to establish any complete grounds for new trial, the court of appeals then ruled, paradoxically, that the juror’s affidavit was all the trial court needed to dispose of appellant’s claims, and overruled his contention that he had an absolute right to have his motion heard.

In essence the court of appeals thus ruled that an affidavit attached to a motion *658for new trial must establish a prima facie case for at least one cognizable ground for new trial before a hearing on the motion is required. In this the court of appeals erred. This Court has never articulated such a requirement.

In Hicks v. State, 75 Tex.Cr.R. 461, 476, 171 S.W. 755, 763 (Tex.Cr.App.1914) it was said that “in order for appellant to have had considered his ground of motion attacking the verdict of the jury on any matter extrinsic the record itself, as a matter of pleading, he must support it by his own affidavit or the affidavit of someone else specifically showing the truth of the grounds of attack.” Elsewhere we have stated that a motion for new trial which alleges, inter alia, jury misconduct “must be supported by the affidavit of a juror or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits.” Dugard v. State, 688 S.W.2d 524, 528 (Tex.Cr.App.1985) and cases cited therein. The policy underlying this pleading requirement is to prevent “fishing expeditions.” Hicks, supra, Dugard, supra. See also Bearden v. State, 648 S.W.2d 688 (Tex.Cr.App.1983).10 Never has the Court held, however, that before a hearing is necessitated the affidavits must reflect every component legally required to establish a claim of jury misconduct.11

This is not to say that affidavits may not serve as proof on a motion for new trial. Indeed, Articles 40.03(8) and 40.06, V.A.C.C.P. mandate otherwise. Should he feel, then, that his affidavit does suffice to establish every facet of a claim of jury misconduct, or of any other cognizable ground for new trial with which the State may take issue, an accused may have said affidavit introduced into evidence, and the matter may be resolved exclusively on that basis. In order to so introduce his affidavits, however, a hearing is required. Stephenson v. State, 494 S.W.2d 900 (Tex.Cr. App.1973); Brown v. State, 505 S.W.2d 277 (Tex.Cr.App.1974); Rios v. State, 510 S.W.2d 326 (Tex.Cr.App.1974); Pinson v. State, 530 S.W.2d 946, 947 (Tex.Cr.App.1975); Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App.1984).

As a matter of pleading and as a prerequisite to obtaining a hearing, keeping in mind that the purpose of the affidavit requirement is to limit the parameters of the hearing that is sought, we hold that an affidavit is sufficient if it demonstrates that reasonable grounds exist for believing that jury misconduct occurred,12 a quotient verdict was agreed upon, or a juror conversed with an unauthorized person regarding the case.

Next we turn to an examination of the juror’s affidavit in this case to determine, applying the above standard, whether it was sufficient to entitle appellant to a hearing.

D.

Relative to appellant’s allegation that the jury’s verdict was decided by quotient, the juror’s affidavit stated:

*659“On the morning that we began deliberating on the punishment to be given [appellant], there was some disagreement between us as to how many years he should get. I though he ought to get at least ten years because if he got less than ten years we would all have to decide whether to give the defendant probation. And I remember that we couldn’t agree right away how much punishment he should get....

“After lunch I remember one of the jurors suggested we ought to figure out what each one of us thought [appellant] should get and then we should just take the average. He thought that that would be a good way to do it. One of the other jurors, a slim Mexiean-Ameri-can man, said that if we were going to do that, then he thought [appellant] should get fifty years. I figure he wanted to make his number high so the average would be higher.... Anyway, we made out little slips of paper with the number of years we thought he should get on it and one of the women jury members came around and picked it up. Then we averaged them all up and the average was twenty-seven years.

The two jurors who were holding out for less than ten years agreed to change to twenty-five years and that’s how we all finally agreed to twenty-five years. You know it’s hard to agree about how many years a guy like that ought to get.”

While it is true that, as the court of appeals concluded, there is no express showing of an advance agreement to abide by the quotient, see Martinez v. State, 496 S.W.2d 612 (Tex.Cr.App.1973), such an agreement is at least implied. That is all that is required to obtain a hearing, wherein the existence vel non of such an advance agreement can be thoroughly investigated.

The affidavit also contains the following account of an encounter between the affiant juror and one of appellant’s own character witnesses:

“During the evening adjournment the [sic] guilt/innocence phase, after I had picked up my newspaper from the jury room I got in the elevator to leave. While I was on the elevator one of the witnesses came over to me and saw my jury button and asked which court I was in. I told him I was in Judge Hester’s court. He asked me if it was [appellant’s] case and I nodded my head — I didn’t say anything to him. He said, What do you do with a guy like that?’ The witness was the older one of the two Mormons who testified. I didn’t say anything, I just left.”

The court of appeals found this exchange not to concern the specifics of appellant’s case, and implied that it did not rise to the level of “conversation” prejudicial to appellant. However, it is clear that the witness’ remark pertained to appellant’s case. Such an exchange need not constitute a full blown discussion of the specifics of a given case before harm may result.13 The affidavit was a sufficient pleading to invoke the presumption that an accused has been injured when an impaneled juror communicates with an unauthorized person about a case. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982). If introduced as evidence at the hearing, the affidavit would thus put the State to its proof, to rebut the presumption, either by testimony or by counter affidavit. See 25 Tex.Jur.3rd, Criminal law § 3518.14

*660As to parole discussion in the jury room the affiant stated:

“If we had agreed on ninety-nine years, it wouldn’t have mattered to me because you figure he’ll get out on parole sooner or later. Of course we all discussed parole several times before we finally agreed on the twenty-five years. I remember someone saying during one of the discussions about parole, ‘How do you rehabilitate a man like that?’ ”

Clearly, standing alone, this statement would not suffice to establish jury misconduct under the test in Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984).15 It was sufficient, however, to put the trial court on notice that reasonable grounds exist to believe misconduct occurred.

We find, in short, that any one of the three bases for new trial discussed by the court of appeals were pled sufficiently to entitle appellant to a hearing thereon.

E.

Because we find appellant’s motion for new trial and supporting affidavit to comprise a sufficient pleading, we agree with appellant that he should have been afforded a hearing on the motion. Under art. 755 (1925), the direct predecessor to our current Article 40.05, V.A.C.C.P., it has been held that “[t]he right to file and have heard a motion for new trial is deemed absolute, provided the right is asserted within the time specified by law.” Synagogue v. State, 122 Tex.Cr.R. 472, 55 S.W.2d 1052, 1053 (1932). As we have already determined, appellant’s motion and affidavits were timely filed. Drewery v. State, supra; Article 40.05(a), supra. The order denying appellant’s motion reflects that within ten days of its having been filed said motion was presented to the trial court. Article 40.05(d), supra. In short, the motion for new trial was in all things a timely and sufficient pleading.16

In Appleman v. State, 531 S.W.2d 806, 810 (Tex.Cr.App.1976) and Powell v. State, 502 S.W.2d 705, 711 (Tex. Cr.App.1973) it was iterated that:

“The trial court is the place to decide issues of fact as to what occurred in the jury room. That decision will not be disturbed by this Court in the absence of an abuse of discretion.”

Where the evidence adduced at the hearing conflicts, it is not an abuse of discretion for the trial court to deny a motion for new trial. Appleman v. State, supra. Furthermore, in Darrington v. State, 623 S.W.2d 414 (Tex.Cr.App.1981), a panel of this Court found no error in overruling a motion for new trial without a hearing when no affidavit was filed in support of the defendant’s claim of jury misconduct, and all other grounds raised in the motion were determinable from the trial record. See also Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981). In another context, however, we have observed that a motion for new trial hearing “is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review.” Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978). In the face of a timely motion for new trial supported by sufficient affidavit, a trial court which denies an accused this opportunity abdicates its fact finding function and denies the accused a meaningful appellate review. Such was the case here, and we find, therefore, that the trial court in the instant cause abused its discretion in denying appellant a hearing on his motion for new trial.

*661As in Trevino v. State, supra, the cause is remanded to the trial court for a hearing on appellant’s motion for new trial.17

III.

Accordingly, the judgment of the court of appeals in reforming the judgment to delete appellant’s conviction for indecency with a child is affirmed. However, in its holding that the trial court did not abuse its discretion in failing to grant a hearing on appellant’s motion for new trial, the judgment of the court of appeals is reversed. The cause is remanded to the trial court for a hearing on motion for new trial.

ONION, PJ. dissents.

. Count two alleged appellant engaged in deviate sexual intercourse by placing his mouth in contact with the genitals of the complaining witness. The court’s charge authorized conviction for aggravated sexual abuse upon proof of either the theory contained in count one or that contained in count two. In addition, in a separate "application” paragraph, the charge also authorized a conviction upon proof of facts going to establish the indecency allegation contained in the third count.

. Objection will be required to preserve the error for appeal when separate and distinct offenses are alleged in, and convictions obtained from a single indictment where the offenses arose out of different transactions. Drake, supra, at 944.

. The witnesses’ testimony varied as to the exact time, with estimates ranging between 11:00 a.m. and 2:00 p.m.

. The witnesses' testimony also varied as to the exact location and respective postures of appellant and the complaining witness during this act.

. V.T.C.A. Penal Code, § 21.01(2) defines sexual contact to mean "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

.Motion for new trial must be filed within 30 days of imposition of sentence, Article 40.05(a), V.A.C.C.P. Where no motion for new trial is filed, notice of appeal must be filed within 15 days of sentencing, Article 44.08(b), supra.

. See Article 40.03(3), V.A.C.C.P.

. See Article 40.03(7), V.A.C.C.P.

. Although improper discussion of parole by the jury may be cognizable under either §§ 7 or 8 of Article 40.03, V.A.C.C.P., see Diaz v. State, 660 S.W.2d 93 (Tex.Cr.App.1983), the language used in appellant’s motion for new trial seems to invoke § 8 in its implication that appellant was denied a "fair and impartial trial.” Either way the Court will now apply the "five prong test” enunciated in Sneed v. State, 670 S.W.2d 262, 266 (Tex.Cr.App.1984), see n. 15, post.

. Appellant’s motion for new trial was not verified. However, because it was supported by affidavits, such verification of the motion itself was unnecessary. Bearden v. State, supra, overruling Cartwright v. State, 612 S.W.2d 609 (Tex.Cr.App.1981).

. We have not held, for instance, that the affidavit itself, standing alone, must establish each of the five prongs of the test enunciated in Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), see n. 15, post, before a hearing must be held on the issue of parole discussion in the jury room. Nor did we hold, prior to Sneed, that an affidavit must show, prima facie, that some discussion of parole laws occurred which unquestionably denied the accused a fair and impartial trial, under the now abandoned standard in Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982).

. In Dugard, supra, at 531, it is suggested in dictum that, at least where an affidavit purports to raise an issue as to the discussion of parole law in the jury room, the affidavit must establish “probable cause" to believe this violation occurred. This is an anomalous standard when one considers the holding of this Court that when juror affidavits are shown to be unavailable to the accused, he may nevertheless otherwise show "reasonable grounds for believing that misconduct actually occurred." Stephenson v. State, supra, at 909; Prince v. State, 158 Tex.Cr.R. 320, 254 S.W.2d 1006, 1011 (1953). Upon this showing the accused is entitled to be heard.

. The court of appeals relied on Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982) for its holding that because the "specifics” of appellant’s particular case were not discussed, no harm is shown. However, in Romo the police officer had no knowledge whatsoever of the accused’s particular case and therefore could not have discussed the “specifics” with the juror. He could inject only the “rank generality directed toward all defendants,” id., at 506, that they should all be convicted. The distinction between this and the instant situation is obvious.

. The initial burden is on the defendant to show the communication pertained to his case, of which the unauthorized party had knowledge. From there, harm is presumed, and the burden shifts to the State to defeat the presumption. See Romo v. State, supra, and cases cited therein at 506.

. That test would require the defendant to show: (1) that a misstatement of the law (2) asserted as a fact was made (3) by someone professing to know the law (4) which was relied upon by other jurors (5) who for that reason changed their vote to a harsher punishment.

. That a motion for new trial is susceptible to being overruled by operation of law 75 days after the date of imposition of sentence pursuant to Article 40.05(c), V.A.C.C.P. does not mean that an appellant whose motion is timely filed and timely presented to the court, with adequate supporting affidavits, is not entitled to a hearing on that motion as an absolute right — contrary to the conclusion of the court of appeals, 662 S.W.2d at 69.

. Appellant argues that his conviction should be reversed and remanded for a new trial on authority of Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952) and Cross v. State, 627 S.W.2d 257 (Tex.App. — Fort Worth 1982, pet. ref'd).

In Jackson, however, the Court observed that “[t]he sole question presented for review is the refusal of the trial court to grant appellant’s amended motion for new trial based upon misconduct.” 157 Tex.Cr.R. at 324, 248 S.W.2d at 748. Thus, it is clear that, while noting that "[t]he affidavit was sufficient to support the allegations of jury misconduct, and the trial court was not warranted in declining to hear testimony thereon[,]" id., the Court found the defendant’s affidavits sufficient to entitle him, not only to a hearing, but also to the new trial he sought.

The affidavits in the instant cause do not of themselves entitle appellant to a new trial. They do entitle him "to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review." As we did in Trevino v. State, supra, we here remand the cause to allow appellant a meaningful albeit somewhat belated, review of the contentions raised in his motion for new trial.