James Harold Bryant v. State of Texas ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

James Harold Bryant

Appellant

Vs.                   No. 11-04-00052-CR -- Appeal from Midland County

State of Texas

Appellee

The jury convicted James Harold Bryant of aggravated assault and assessed his punishment at 8.5 years confinement and a $6,000 fine.  The trial court entered a finding that a deadly weapon was used during the commission of the offense.  We affirm.

There is no challenge to the sufficiency of the evidence.  In his first point of error, appellant contends that the trial court erred in overruling his motion for new trial based upon juror misconduct.  The decision to grant or deny a motion for new trial lies within the discretion of the trial court.  Lewis v. State, 911 S.W.2d 1, 7 (Tex.Cr.App.1995).  We do not substitute our judgment for that of the trial court but, rather, decide whether the trial court=s decision was arbitrary or unreasonable. Lewis v. State, supra. 

Appellant filed a motion for new trial alleging juror misconduct.  The jury foreman from appellant=s trial filed an affidavit in which he stated that, during deliberations on guilt/innocence, a juror revealed that she had made an independent investigation of the alleged crime scene. The jury foreman further stated in his affidavit that, during the deliberations on punishment, the jury discussed the effects of the parole laws on appellant=s sentence.  Appellant=s motion for new trial did not contain any evidence other than the affidavit of the jury foreman.  The trial court overruled appellant=s motion for new trial without a hearing stating that Athe motion and the affidavit allege jury misconduct regarding matters or statements occurring during the jury=s deliberations.  This type of evidence is not admissible to prove jury misconduct. Tex.R.Evid. 606(b).@

TEX.R.EVID. 606(b) provides in part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury=s deliberations, or to the effect of anything on any juror=s mind or emotions or mental processes, as influencing any juror=s assent to or dissent from the verdict or indictment.  Nor may a juror=s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes.  However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror.

Rule  606(b) does not permit jurors to testify as to any matter or statement occurring during the jury=s deliberations as to the effect of anything on any juror=s mind or emotions or mental processes that may have influenced any juror=s assent to the verdict.  State v. Lewis, 151 S.W.3d 213, 219-20 (Tex.App. ‑ Tyler 2004, pet=n ref=d). A motion for new trial based on jury misconduct that relies on affidavits of jurors must allege that outside influences affected the jury=s decision. See Rule 606(b); Tinker v. State, 148 S.W.3d 666, 673 (Tex.App. ‑ Houston [14th Dist.] 2004, no pet=n). To constitute Aoutside influences,@ the information must have come from a source outside the jury, such as a non‑juror who introduces information affecting the verdict.  Tinker v. State, supra;  see also Traylor v. State, 43 S.W.3d 725, 731 (Tex.App. ‑ Beaumont 2001, no pet=n); Hicks v. State, 15 S.W.3d 626, 629 (Tex.App. ‑ Houston [14th Dist.] 2000, pet=n ref=d); Hart v. State, 15 S.W.3d 117, 122 (Tex.App. ‑ Texarkana 2000, pet=n ref=d). Moreover, it has often been held in the civil context that information gathered by a juror and introduced to the other jurors by that juror is not an Aoutside influence,@ even if introduced specifically to prejudice the vote.   Franks v. State, 90 S.W.3d 771, 799 (Tex.App. ‑ Fort Worth 2002, no pet=n); Soliz v. Saenz, 779 S.W.2d 929, 932 (Tex.App. ‑ Corpus Christi 1989, writ den=d).

Appellant=s motion for new trial and the affidavit of the jury foreman did not provide evidence of outside influences. Therefore, the trial court did not err in overruling appellant=s motion for new trial.  Appellant=s first point of error is overruled.

In his second point of error, appellant argues that the trial court erred in entering a finding on the use of a deadly weapon.  The indictment alleged that appellant:

[D]id then and there intentionally, knowingly and recklessly cause bodily injury to [the victim] by stabbing and cutting [the victim] with a knife and did then and there use and exhibit a deadly weapon, to-wit: a knife, during the commission of the said assault.

The trial court instructed the jury in its charge

[I]f you believe from the evidence beyond a reasonable doubt, that [appellant] did then and there intentionally, or knowingly or recklessly cause bodily injury to [the victim] by stabbing or cutting [the victim] with a knife, and did then and there use or exhibit a deadly weapon, to-wit: a knife, during the commission of the said ASSAULT that in its manner of use or intended use was capable of causing serious bodily injury or death, you will find [appellant] guilty of the offense of AGGRAVATED ASSAULT as charged in the indictment

The jury found appellant guilty Aas alleged in the indictment.@

The trial court is authorized to enter a deadly weapon finding where the jury has found the defendant guilty as alleged in the indictment and the deadly weapon has been specifically pleaded in the indictment, using the nomenclature Adeadly weapon.@ Vasquez v. State, 56 S.W.3d 46, 47 (Tex.Cr.App.2001); Polk v. State, 693 S.W.2d 391, 396  (Tex.Cr.App.1985).  The trial court did not err in entering a deadly weapon finding.  Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

August 31, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and McCall, J.^[1]

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^[1]W. G. Arnot, III, Chief Justice, retired effective July 31, 2005.  The chief justice position is vacant.