Stephen Felipe Gamez AKA Stephen Phillip Gamez AKA Stephen P. Gamez v. State ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00316-CR
Stephen Felipe Gamez
aka Stephen Phillip Gamez
aka Stephen P. Gamez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 52,928, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
A jury found appellant Stephen Felipe Gamez guilty of sexual assault of a child. See Tex.
Pen. Code Ann. ' 22.011 (West Supp. 2002). The district court assessed punishment, enhanced by
previous felony convictions, at imprisonment for forty years. In his only point of error, appellant contends
the court should have granted his mistrial motion after a juror had a conversation with an unauthorized
person. We will overrule this contention and affirm.
Following a recess, a juror reported to the court that a man had spoken to her on the
elevator. AThis gentleman asked me if, if we had found the defendant guilty yet. And I said, >I cannot
discuss this case.= He said, >I=m sorry= and then he said C his next comment to me as the doors were
opening was, >He did it to my brother.= And I just, I just waved him off and walked out.@ The juror had not
seen the man before and could not identify him. The juror and the man were the only persons on the
elevator. The juror did not mention this incident to any other juror and immediately reported it to the bailiff.
The juror assured the court that she would put the man=s comment out of her mind and not consider it for
any purpose during deliberations. The court pressed the juror on this, telling her that it was Avery important
. . . for you to be a little more affirmative about either yes, you can and will put it out of your mind.@ The
juror replied, AYes, I can. I have children and I don=t take things at face value until I know more. That=s
just the type of person I am.@ The court then asked, ASo you=re telling the Court you will not consider that .
. . whatsoever and certainly not discuss it with anybody else other than us here?@ The juror answered,
AYes, ma=am.@
Injury to the defendant is presumed when a juror converses with an unauthorized person
about the case. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); Drone v. State, 906
S.W.2d 608, 617 (Tex. App.CAustin 1995, pet. ref=d). This presumption is rebuttable. Quinn, 958
S.W.2d at 401; Drone, 906 S.W.2d at 617. In determining whether the presumption was rebutted,
appellate courts should defer to the trial court=s resolution of the historical facts and its determinations
concerning credibility and demeanor. Quinn, 958 S.W.2d at 401.
Robinson v. State, 851 S.W.2d 216, 229-30 (Tex. Crim. App. 1991), was a prosecution
for capital murder. During trial, a juror disclosed to the court that her sister had read in the newspaper that
the defendant had killed one of his accomplices, a fact not in evidence, and had related this fact to the juror.
Id. at 229. The juror assured the court that she could disregard this information and would not disclose it
to the other jurors, and she promised that she would base her verdict solely on the evidence introduced at
trial. Id. at 229-30. The court of criminal appeals, noting that the trial court was in the best position to
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judge the credibility of the juror, concluded that the court had not abused its discretion by overruling the
defendant=s motion for mistrial. Id. at 230.
As in Robinson, the trial court in this cause chose to believe the juror=s assurances that her
verdict would not be influenced by the improper communication and that she would not reveal the
communication to the other jurors. Viewing the evidence in the light most favorable to the court=s ruling, we
conclude that the court did not abuse its discretion by overruling the motion for mistrial.
We overrule the point of error and affirm the judgment of conviction.
David Puryear, Justice
Before Chief Justice Aboussie, Justices Patterson and Puryear
Affirmed
Filed: October 17, 2002
Do Not Publish
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