TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00437-CR
Jerson Ramiro Sanchez, Appellant
v.
The State of Texas, Appellee
FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY
NO. B-17-0650-SA, THE HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Jerson Ramiro Sanchez of aggravated sexual assault of
a child and sentenced him to five years’ imprisonment. On appeal, he argues that the trial court
should have granted his motion for new trial based on juror misconduct. We affirm the judgment
of conviction.
STANDARD OF REVIEW
We review a trial court’s decision on a motion for new trial for an abuse of
discretion. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). “We afford
almost total deference to a trial court’s fact findings, view the evidence in the light most
favorable to the trial court’s ruling, and reverse the ruling only ‘if no reasonable view of the
record could support’ it.” Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021) (quoting
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013)); see Briggs v. State,
560 S.W.3d 176, 184 (Tex. Crim. App. 2018). “When jury misconduct is raised in a motion for
new trial, whether misconduct occurred is a decision for the trial court which will not be
disturbed on appeal absent an abuse of discretion.” Short v. State, 995 S.W.2d 948, 954 (Tex.
App.—Fort Worth 1999, pet. ref’d). A defendant seeking a new trial based on jury misconduct
must show that the misconduct occurred and that the misconduct was detrimental to the
defendant. See Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981); Ford v. State,
129 S.W.3d 541, 548 (Tex. App.—Dallas 2003, pet. ref’d).
Texas courts apply a “common-law rule against the admission of jury testimony
to impeach a verdict.” McQuarrie, 380 S.W.3d at 153; see Pena-Rodriguez v. Colorado,
137 S. Ct. 855, 863 (2017) (discussing different jurisdictions’ versions of common-law
“no-impeachment rule”). In addition, the rules of evidence provide that during an inquiry into
the validity of a verdict, a juror may not testify, and the trial court may not receive an affidavit or
other evidence about statements made or incidents that occurred during deliberations, “the effect
of anything on that juror’s or another juror’s vote,” or the mental processes of any jurors
concerning the verdict or indictment. Tex. R. Evid. 606(b)(1). The no-impeachment rule is
intended to provide privacy for jury deliberations “to encourage jurors to candidly discuss the
law and facts.” McQuarrie, 380 S.W.3d at 153. However, a juror may testify “about whether an
outside influence was improperly brought to bear on any juror,” Tex. R. Evid. 606(b)(2), an
inquiry limited “to that which occurs outside of the jury room and outside of the juror’s personal
knowledge and experience,” McQuarrie, 380 S.W.3d at 153, and the Supreme Court recently
held that when a juror makes a clear statement indicating that “he or she relied on racial
stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the
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no-impeachment rule give way in order to permit the trial court to consider the evidence of the
juror’s statement and any resulting denial of the jury trial guarantee,” Pena-Rodriguez, 137 S. Ct.
at 869.
SUMMARY OF RELEVANT FACTS
Initially, we address what evidence we may consider. In the hearing on
appellant’s motion for new trial, five witnesses testified, and throughout the hearing, the State
objected on hearsay and other grounds. The trial court sustained many of the State’s objections,1
and appellant made several bills of exception to preserve for appeal certain testimony by Juror 4
and Juror 8. In his brief, appellant refers to some of the testimony contained in the bills of
exception, stating that “because there were no findings of fact entered by the court, it may be that
testimony in portions of those bills was considered, and rejected by the court.” However, during
Juror 4’s testimony, appellant asked the trial court to admit the Juror 4 bills of review as
testimony. The trial court refused, saying, “If I admit it as testimony, then it comes into this
hearing. It’s not. It’s not anything I’m going to consider, but it’s on the record for purposes of
appeal.” Appellant then said, “So Judge, also for the appellate record, I would offer [Juror’ 8’s]
testimony or our Bill of Exception as testimony.” The trial court ruled, “I think it is there, but
yes, that is now on the record for that purpose; won’t be considered for purposes of my
decision.” Given the trial court’s explicit refusals to consider any of the excluded evidence, we
will only summarize the evidence admitted at the hearing.
1
Appellant does not complain on appeal about the trial court’s evidentiary rulings other
than to allude to the Pena-Rodriguez rule allowing a trial court to consider evidence of racial
animus. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017).
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After closing arguments in the guilt-innocence phase, the jury began deliberating
at 10:42 a.m. At 1:20 p.m., it informed the trial court that it was “hung 6 vs 6 for a unanimous
verdict,” and the trial court instructed it to attempt to continue deliberations. At 2:56 p.m., the
jury sent another note saying that it was still split, and the trial court responded with an Allen
charge,2 to which the attorneys agreed. About two hours later, the jury informed the trial court
that it had reached a verdict, announcing that it had found appellant guilty when called back into
the courtroom. The next morning, before the punishment phase began, appellant’s attorney
polled the jury, and all twelve jurors confirmed that they agreed with the guilty verdict.
Appellant filed a motion for new trial asserting that a post-verdict investigation
had resulted in allegations of juror misconduct.3 Appellant alleged that: jurors had commented
on appellant’s decision not to testify, despite a charge instruction to the contrary; jurors had
commented on discussions at the bench, relaying information that one juror said he had gleaned
through lip reading; one juror commented that he “knew all about these kinds of cases and that
2
The Texas Court of Criminal Appeals has explained an Allen charge as follows:
An Allen charge is a supplemental charge sometimes given to a jury that declares
itself deadlocked. It reminds the jury that if it is unable to reach a verdict, a
mistrial will result, the case will still be pending, and there is no guarantee that a
second jury would find the issue any easier to resolve.
Barnett v. State, 189 S.W.3d 272, 277 (Tex. Crim. App. 2006) (citing Allen v. United
States, 164 U.S. 492, 501 (1896)).
3
Appellant attached to his motion the affidavits of two jurors, but the State objected to
those affidavits, and they were not introduced into evidence during the hearing on appellant’s
motion. See Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.—Austin 2000, pet. ref’d)
(“Motions for new trial and affidavits and controverting affidavits are mere pleadings unless
offered and admitted in evidence.”). We thus will not consider the affidavits in our analysis.
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[the defendants] are all guilty”; jurors felt “intimidated” when they saw appellant “roaming free
around the courthouse” before deliberations began; the jury was split for several hours, during
which time one male juror “scream[ed] continuously in a loud menacing voice for almost an
hour straight”; five of the not-guilty votes changed their votes after they saw appellant in the
hallway “‘smirking’ and smiling”; and the last not-guilty voter changed her vote because she felt
“overwhelmed with the screaming, that she was never getting out of the room, and abandoned
after the other jurors changed their votes after seeing the demeanor” of appellant.
In the hearing on the motion for new trial, the trial court heard testimony from
Juror 4, Juror 8, paralegal Oma Burton, and bail bondsman Freddie Ontiveros.4 Juror 8 testified
that during deliberations, while the jury was deadlocked, the jurors were allowed to go outside
for fresh air. As she and another juror walked back in, they were stopped by the bailiff because
appellant was in the same hallway, and Juror 8 testified, “The only thing we saw was him
walking and then he was just smiling.” She said there were no comments made about that
interaction when she walked back to and reentered the jury room and said “no” when asked if
she was “the only person who observed the defendant smirking.” The State objected that
appellant’s attorney had misstated the testimony, and Juror 8 was asked to describe “what [she]
saw the defendant doing when [she] walked in.” She answered, “Smiling.” Juror 8 testified that
soon after they returned from being outside, the not-guilty votes changed their minds, and the
guilty verdict was returned about fifteen minutes later. Appellant’s attorney asked whether there
were “times where [the jury] went on break where somebody would discuss what the lawyers
would say at the Bench,” and Juror 8 answered, “Yes.” She also answered “yes” when asked if
4
Bailiff Jim Coleman also testified, but he only explained that the jury had sent notes
about being hung to the trial court, that he asked the jurors if they wanted to take a walk outside,
that he walked them outside, and that he escorted them back into the jury room.
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she “observe[d] someone lipreading the lawyers at the Bench,” but after a lengthy discussion, the
trial court sustained the State’s hearsay objection to that question.
Juror 4 answered “yes” when asked whether she ever “had reason to believe
somebody was lipreading.” She explained that one juror “said that he read what [appellant’s
attorney was] telling the Judge when the nurse was on the stand, and that if . . . she kept on
talking, [the attorney was] going to ask for a mistrial.” Burton testified that during deliberations,
after the jury sent out its second note saying it was deadlocked, she heard “[e]xtremely loud
yelling, of one person in particular” coming from the jury room. She agreed that it was more like
screaming and said that it was a male voice yelling “pretty continuous[ly].” She heard “female
voices trying to say something, but then the male voice would just start talking [or] yelling over
them,” and testified that it was stressful to hear the yelling as she sat in the courtroom. Finally,
Ontiveros testified that during deliberations, there were “a couple of times that the noise was
outrageous, high, high, loud”; that it sounded “kind of” like screaming “in a high-pitched voice”;
that he did not know if the voice was male or female; that other people tried to talk but that it
sounded like they were being “overruled”; and that he was uncomfortable listening to the yelling.
DISCUSSION
Appellant argues that the record shows that his attorney was “derogated for doing
her job” and that the “[r]ecitation by one juror of the conversation at the bench, where
Appellant’s counsel threatened to ask for a mistrial, is a violation of Appellant’s due process
rights under the Texas and United States Constitutions because by context it was put in a
negative light regarding Appellant’s counsel doing her job.” However, there was no evidence
that the jurors had a negative reaction to the statement about counsel’s “threat,” that they viewed
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appellant or his attorney in a negative light because of the information purportedly obtained
through lipreading, or that appellant might have suffered any other harm as a result of the juror’s
remarks about what he had learned through lipreading.
Appellant next argues that his “English-speaking ability (racial in tone) was
commented on along with his remaining silent.” However, most of the testimony on which he
might rely for those assertions was contained in the bills of exception, not in the evidence
actually admitted and considered by the trial court. Appellant cites Pena-Rodriguez for the
proposition that a juror’s statements indicating an intention to rely on racial animus cannot be
excluded under the no-impeachment rule, but the Supreme Court further explained:
Not every offhand comment indicating racial bias or hostility will justify setting
aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to
proceed, there must be a showing that one or more jurors made statements
exhibiting overt racial bias that cast serious doubt on the fairness and impartiality
of the jury’s deliberations and resulting verdict. To qualify, the statement must
tend to show that racial animus was a significant motivating factor in the juror’s
vote to convict. Whether that threshold showing has been satisfied is a matter
committed to the substantial discretion of the trial court in light of all the
circumstances, including the content and timing of the alleged statements and the
reliability of the proffered evidence.
137 S. Ct. at 869. The Supreme Court explained that the Pena-Rodriguez case fell “at the
intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions
seeking to eliminate racial bias in the jury system” and that those lines of precedent “need not
conflict.” Id. at 868. The Court observed that the jury misconduct discussed in other cases in
which the no-impeachment rule was upheld might have been “troubling and unacceptable” but
was irregular—“anomalous behavior from a single jury—or juror—gone off course.” Id. Racial
bias, on the other hand, is “a familiar and recurring evil” that poses a risk of “systemic injury to
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the administration of justice,” thus justifying an incursion on the privacy of jury deliberations.
Id. at 868-69.
The evidence in question was Juror 8’s testimony that she heard a comment about
appellant’s use of an interpreter to the effect that “they heard him speak English and they didn’t
know why he had an interpreter,” and Juror 4’s testimony that the lipreading juror said that he
saw appellant talking to his attorney in English and “did not understand why [appellant] would
not get up and testify.” Juror 4 said that the juror “kind of just said it smugly” and implied that
appellant “was trying to hide something because he’s not testifying, because he can speak to [his
attorney] in English, but he won’t get up and testify.” Appellant argued that the evidence
indicated racial animus, but the trial court disagreed, saying, “The only testimony we heard
anyway was that they wondered why he was—had an interpreter when he [could] speak English.
I didn’t hear anything that I would think would rise to the level of racism, though.” Appellant
did not show that the alleged remarks related to appellant’s language skills were more than
“irregular” or “anomalous” behavior by the lipreading juror. See id. at 868. We cannot hold that
the trial court abused its discretion in concluding that appellant had not met the high standard
discussed by Pena-Rodriguez so as to allow the evidence about the lipreading juror’s testimony
to be considered. See id. at 869. The trial court could also have determined that the evidence,
even if considered, did not show misconduct requiring that appellant be granted a new trial. See
Briggs, 560 S.W.3d at 184; McQuarrie, 380 S.W.3d at 150.
Finally, appellant states, “Though Pena-Rodriguez was concerned with race, had
there been the same violation of one’s right to remain silent Appellant says the same result would
be had.” As noted earlier, appellant did not show that any remarks to the effect that appellant
could speak English and was hiding behind a translator rather than testifying was anything more
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than “anomalous behavior by a single” juror. See 137 S. Ct. at 868. Even if we believed it
would be appropriate to extend Pena-Rodriguez here to allow the consideration of Juror 4 and
Juror 8’s testimony, that evidence does not establish that appellant’s rights against self-
incrimination were violated such that the trial court abused its discretion in denying his
motion for new trial. See Briggs, 560 S.W.3d at 184; McQuarrie, 380 S.W.3d at 150; Garza,
630 S.W.2d at 274; Short, 995 S.W.2d at 954.
We overrule appellant’s sole issue on appeal.
CONCLUSION
Having overruled appellant’s argument on appeal, we affirm the trial court’s
judgment of conviction.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Affirmed
Filed: June 30, 2021
Do Not Publish
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