The State of Texas v. Shane Salmon ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00727-CR
The State of Texas, Appellant
v.
Shane Salmon, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2019-800, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
OPINION
The State appeals from the trial court’s order granting Salmon a new trial. Because
the trial court predicated its ruling on a juror’s testimony impeaching her own verdict—evidence
deemed incompetent under Rule 606(b)—we reverse the trial court’s order, reinstate the jury’s
unanimous guilty verdict, and remand for a jury trial on punishment.
BACKGROUND
On a misty December night, around 11:00 p.m., Salmon drove north on the I-35
frontage road near New Braunfels; he and Betty Gibson were headed towards their home after a
night out. At the same time, Adolfo Tomas Almaraz, a commercial truck driver, had finished a
shift in the Rio Grande Valley and was returning his heavy haul, flatbed style truck to the company
yard. The yard was right off the feeder road and secured by a locked gate. Almaraz pulled into
the driveway of the yard as much as he could and got out of the truck to unlock the gate. The
flatbed part of the truck obstructed about eight feet of the fifteen-foot-wide, right-hand lane of the
feeder. All the “operating lights that needed to be on for the nighttime” were on. Nevertheless,
Salmon did not see the truck and hit it; the impact severed Gibson’s head from her body. After an
investigation, the State charged Salmon with manslaughter and intoxication manslaughter. The
disputed issue at trial was causation: Was the accident Salmon’s or Almaraz’s fault? After being
charged that jury unanimity was required, the jury found Salmon guilty on both counts. No juror
dissented when the trial court announced the jury’s verdicts. The defense declined the trial court’s
invitation for a jury poll and the trial court instructed the jurors to return the next day for the
punishment phase of trial.
The next morning, a juror (Juror 7) informed the trial court that “her vote was not
for guilt,” and the trial court announced it would poll the jury and then, if necessary, question
Juror 7 individually. The State objected to any late polling or taking of evidence in violation of
Texas Rule of Evidence 606(b) (prohibiting juror testimony during inquiry into validity of verdict
except under narrow circumstances). The trial court polled the jury and, in response to Juror 7’s
statement that “I wish I had chosen not guilty,” questioned her outside the presence of the other
jurors. During that questioning, Juror 7 vacillated between representing her final vote as guilty
and as not guilty. The defense urged the trial court to grant its written motion for mistrial and new
trial, citing Salmon’s constitutional right to a unanimous verdict. The State argued that the grant
of a new trial would be contrary to Rule 606(b). The trial court ruled that “the constitutional rights
of this defendant override any procedural issues that might be included. I am going to grant the
mistrial.” The trial court later memorialized its ruling in a written order.
The State filed this appeal. See Tex. Code Crim. Proc. art. 44.01(a)(3) (State can
appeal order of trial court granting new trial); State v. Evans, 843 S.W.2d 576, 578 (Tex. Crim.
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App. 1992) (under article 44.01(a)(3), State can appeal order “functionally indistinguishable from
an order granting a new trial”).
STANDARD OF REVIEW
A trial court’s decision to grant or deny a motion for new trial is reviewed only for
an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). “That
discretion is not, however, unbounded or unfettered.” Id. A trial court “has discretion to grant or
deny a motion for new trial ‘in the interest of justice,’ but ‘justice’ means in accordance with the
law.” Id. at 907. “[A] trial court would not generally abuse its discretion in granting a motion
for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial;
(2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim;
and (3) showed prejudice to his substantial rights under the standards in Rule 44.2 of the Texas
Rules of Appellate Procedure.” Id. at 909.
DISCUSSION
The State argues, inter alia, that the trial court abused its discretion in granting a
new trial because no competent evidence supported Salmon’s legal claim that the jury failed to
reach a unanimous verdict. We agree, find this issue dispositive of the appeal, and decline to
address the State’s remaining issues, including the propriety of the trial court-initiated jury poll.
Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
Texas Rule of Evidence 606
Rule 606 governs a juror’s competency as a witness and provides in part that
“[d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any
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statement made or incident that occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on
these matters.” Tex. R. Evid. 606(b)(1). There are two exceptions in the statute. “A juror may
testify: (A) about whether an outside influence was improperly brought to bear on any juror; or
(B) to rebut a claim that the juror was not qualified to serve.” Id. R. 606(b)(2). The Supreme
Court has added a constitutional exception. In Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017),
the Supreme Court held “that where a juror makes a clear statement that indicates he or she relied
on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires
that the 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.” Id. at 225.
No-impeachment rules of evidence codify the “near-universal and firmly
established common-law rule” that prohibits the admission of juror testimony to impeach a jury
verdict. Tanner v. United States, 483 U.S. 107, 117 (1987); see Lutcher v. Morrison, 14 S.W.
1010, 1011 (Tex. 1891) (“Appellants appended to their motion for a new trial the affidavits of a
number of the members of the jury who tried the cause, to the effect that the verdict returned was
not the agreement of the whole jury, but of a majority of it only. The court, upon the motion of
the defendant, struck out and refused to consider the affidavits. From the first organization of this
court the receiving of such affidavits has been always discouraged.”)
The Jury Poll and Juror 7’s Testimony
Endeavoring to not run afoul of Rule 606(b), the trial court first tried to resolve the
issue by way of a jury poll. See Tex. Code Crim. Proc. art. 37.05 (“The State and the defendant
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each have the right to have the jury polled, which is done by calling separately the name or
identification number of each juror and asking the juror if the verdict is the juror’s. If all jurors,
when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any
juror answers in the negative, the jury shall retire again to consider its verdict.”). In keeping with
the heart of the statute, the trial court called each juror separately by identification number and
asked whether the guilty verdict was, in fact, his or her verdict. Jurors 1-6 agreed that it was,
stating either “Yes” or “Guilty.” The trial court then asked Juror 7:
THE COURT: Juror 7?
JUROR [7]: May I ask a question?
THE COURT: No, ma’am. It’s a “Yes” or “No” answer.
JUROR [7]: To what it is now or what --
THE COURT: Was it -- your decision in this case, was it guilt or not guilty?
JUROR [7]: I wish I had chosen not guilty.
Jurors 8-11 each stated their verdicts as “Guilty.”
After the jurors exited the courtroom, the trial court asked the bailiff to bring Juror 7
back in. The trial court swore her in. Before she testified, the State again objected on Rule 606(b)
grounds. The trial court addressed the juror:
THE COURT: Ma’am, I’m not going to ask you what anybody else in your jury
did. I’m simply going to ask you one question: Was your not guilty
decision your decision all along or are you changing it?
JUROR [7]: My decision all along.
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The bailiff took Juror 7 back to the jury room. The State argued Juror 7 had changed her verdict;
the Defense asked the trial court to declare a mistrial and grant a new trial. The trial court asked
the bailiff to bring Juror 7 back over the parties’ objections.
THE COURT: Ma’am, it’s also been represented to me that you have indicated that
you are not going to cooperate and continue to deliberate with this
jury.
JUROR [7]: Excuse me? I’m not understanding.
THE COURT: It was represented to me that you did not wish to deliberate on any
issues with this jury.
JUROR [7]: I did not say that.
THE COURT: Okay. So you are willing to continue?
JUROR [7]: Because I have to.
THE COURT: Okay.
JUROR [7]: Unfortunately, I -- I should have just stuck to my guns and –
THE COURT: Well, that -- I don’t need to hear all of that. But the question is
whether or not your –
[STATE]: Your Honor, I object to anything that -- I mean she’s stating that she
should have stuck to her guns, which means she has changed her
opinion.
THE COURT: Have you changed your opinion?
JUROR [7]: To guilty?
THE COURT: Or innocence?
JUROR [7]: I said not guilty.
THE COURT: Okay.
Juror 7 left the courtroom, and the trial court addressed the attorneys: “The
interpretation -- I mean what she said is open for interpretation about sticking to her guns.
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That would also indicate that that was her opinion all along except for -- except for perhaps
the final vote.” After listening to the parties’ arguments and acknowledging the State’s repeated
objection, the trial court announced its ruling: “I understand. Once again, though, I believe that
the constitutional rights of this defendant override any procedural issues that might be included.
I am going to grant the mistrial.”
Juror 7’s Testimony Was Not Competent to Impeach the Verdict
The facts above illustrate the reason for Rule 606(b). Juror 7’s polling response, “I
wish I had chosen not guilty” signified that her final vote was guilty and the verdict of guilty was
unanimous. Some of Juror’s 7’s testimony (“[not guilty was my] decision all along,” and “I said
not guilty”) signified that her final vote was not guilty and the verdict of guilty was not unanimous.
Other of her testimony (“Unfortunately, I -- I should have just stuck to my guns”) signified that her
final vote was guilty and the verdict of guilty was unanimous. At a motion for new trial hearing,
the trial court “alone determines the credibility of the witnesses.” Colyer v. State, 428 S.W.3d 117,
122 (Tex. Crim. App. 2014). And as an appellate court, we must “view the evidence in the light
most favorable to the trial court’s ruling, defer to the court’s credibility determinations, and
presume that all reasonable fact findings in support of the ruling have been made.” State v.
Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). But Juror 7, by rule, was not competent to
testify during an inquiry into the validity of the verdict as to her own mental processes concerning
the verdict. She did not testify about “whether any outside influence was improperly brought to
bear upon any juror,” “to rebut a claim that the juror was not qualified to serve,” or her own reliance
on “racial stereotypes or animus to convict a criminal defendant.” Tex. R. Evid. 606(b)(2); Pena-
Rodriguez, 580 U.S. at 225. Rather, hers was disgruntled juror testimony—that which Rule 606(b)
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“flatly prohibits.” Colyer, 428 S.W.3d at 124; see Ford Motor Co. v. Castillo, 279 S.W.3d 656,
666 (Tex. 2009) (one reason for Rule 606(b) is “preventing a disgruntled juror whose view did not
prevail from overturning the verdict”) (citing Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d
362, 366-67 (Tex. 2000)). And, in this context, we do not consider incompetent evidence, see
Golden Eagle Archery, 24 S.W.3d at 369, regardless of what the trial court thinks about it. State
v. Gallien, 631 S.W.3d 885, 896 (Tex. App.—Houston [1st Dist.] 2021, pet. ref’d).
The testimony, though taken in a good-faith effort to protect Salmon’s
constitutional rights, resulted in evidence deemed incompetent by Rule 606(b). The trial court
abused its discretion in basing its decision to grant a new trial on that incompetent evidence.
State v. Ordonez, 156 S.W.3d 850, 852 (Tex. App.—El Paso 2005, pet. ref’d); see also White v.
State, 181 S.W.3d 514, 526 (Tex. App.—Texarkana 2005), aff’d, 225 S.W.3d 571 (Tex. Crim.
App. 2007).
We are left with the jury poll. And that polling, however unorthodox, did not call
into question the unanimity of the verdict. See Batten v. State, 549 S.W.2d 718, 721 n.5 (Tex.
Crim. App. 1977) (where juror answers jury poll by confirming that vote was his or her own,
answer is conclusive, and further inquiry is not permissible).
Because jurors cannot impeach their own verdicts except in narrow circumstances
not applicable here, the trial court did not have competent evidence before it substantiating
Salmon’s legal claim. Herndon, 215 S.W.3d at 909. The trial court therefore abused its discretion
in granting Salmon’s motion for new trial.
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CONCLUSION
We reverse the trial court’s order granting Salmon’s motion for new trial, reinstate
the jury’s unanimous guilty verdict, and remand this cause to the trial court for a jury trial on
punishment. See Ex parte Pete, 517 S.W.3d 825, 832-33 (Tex. Crim. App. 2017); Gallien,
631 S.W.3d at 898.
__________________________________________
Chari L. Kelly, Justice
Before Justices Baker, Kelly, and Smith
Reversed and Remanded
Filed: October 16, 2024
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