Ramos v. State

In his motion appellant questions the correctness of the holding in our original opinion that the evidence of the jurors heard in support of the motion for new trial did not establish a claim that the jurors discussed the failure of appellant to testify. Appellant and Juan Ramos were jointly indicted, and jointly tried. The court instructed the jury to return a verdict of not guilty as to Juan, which they did. It is appellant's contention that the jury not only discussed his failure to testify, but also discussed the fact that Juan did not testify, which appellant claims was harmful to him because, being jointly indicted, appellant could not call Juan as a witness.

We have again examined the testimony of the jurors on the two points suggested. One of the jurors testified that he believed some of the jurors said it would have done no good if appellant had gone on the witness stand, but further says he could not swear to that because they had been talking about Juan not having testified. Other jurors were positive in their testimony that no reference was made to appellant's failure to testify, but practically all admitted there was some discussion about Juan not having testified. It is extremely doubtful if the testimony raised an issue upon the claim that the jury discussed appellant's failure to testify. The most that can be said about it is that if the issue was raised there was a conflict in the evidence regarding the matter, most of the jurors having testified positively that there was no allusion to or discussion of the fact that appellant did not testify. If a question of fact was thus raised it was the province of the court to determine it, and having found in favor of the state upon the point, we would not disturb such finding, there being a total failure to show that the court abused his discretion in the matter. Douglas v. State, 58 Tex.Crim. Rep.,124 S.W. 933, 137 Am. St. Rep., 930; Barber v. State, 64 Tex. Crim. 96,142 S.W. 577; Watson v. State, 82, Texas Crim. Rep., 305, 199 S.W. 1113; Manley v. State, 92 Tex. Crim. 537,244 S.W. 533.

We are not in accord with appellant's contention that the discussion by the jurors of the fact that Juan Ramos did not testify is available to appellant. The statute, article 710, C. C. P., contains an inhibition against taking the failure of accused to testify as a circumstance against him, and there seems to have been no violation of this statute as it applies to appellant himself. Nothing is shown in the evidence of the jurors which would indicate they were taking as a circumstance against appellant the fact that Juan Ramos did not testify. It appears they were discussing that, in connection with the charge of the court directing them to return a verdict of not guilty against Juan. It is true that being jointly indicted appellant could not call Juan as a witness, but if the testimony of Juan had been desired the statute points out the manner in which it might have been secured. An application for severance, and putting Juan upon trial first would have accomplished it. Furthermore, after Juan had been acquitted appellant might have asked for a new trial in order to have the testimony of Juan if it could have been shown that his evidence would have been material to appellant. No such efforts were made in the present case.

In his motion appellant urges that we reached a wrong conclusion regarding the separation of the jury. Only five jurors were examined upon the hearing of the motion for new trial and we have examined the testimony carefully again. Mr. Riedel, one of the jurors, testified that when he went down in the basement to take a bath "a fellow from Premont by the name of Walter was down there." It is urged by appellant that this shows someone not connected with the jury came in contact with those who were in the basement. We are of opinion the evidence shows to the contrary. This same juror says, "When I was down there taking those baths I did not see anybody down there except the sheriff and jurors. I did not talk to any outside person at all." This seems to show that the "Walter" referred to was one of the jurors. The testimony of the jurors when considered in its entirety seems to affirmatively show that no stranger or outsider was in the court house during the time some of the jurors were taking a bath in the basement, nor during the time some of the jurors were sleeping in the court room, and others in the jury room. If the evidence had shown that some of the jurors had come in contact and talked with an outsider, a serious question might have been presented on the claim that the state had failed to discharge the burden of showing that such improper contact did not result in injury to appellant. There is an entire failure here to show that any of the jurors came in contact with strangers to the case. Watson v. State, 82 Tex.Crim. Rep., 199 S.W. 1113, and authorities therein cited. Under the facts in the present record we adhere to the conclusion originally announced.

Appellant's motion for rehearing is overruled.

Overruled.