Opinion
No. 4-04-00685-CR
Delivered and Filed: October 5, 2005. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-9966-a, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Roland A. Baylor appeals the judgment convicting him of attempted capital murder and sentencing him to fifty years in prison. We affirm the trial court's judgment. Following a break during the guilt-innocence phase of the trial, Baylor's attorney advised the court that, as he was walking down the hallway behind the courtroom, he heard the jurors in the closed jury room "discussing the case, arguing the pros and cons on it." Without further revealing the substance of what he overheard or asking the court to conduct an inquiry into the substance of the jurors' discussion, Baylor's attorney moved for a mistrial on the ground the jury's discussion of the case violated the court's instructions, "prejudice[d] [Baylor's] rights," and deprived Baylor of his constitutional rights. The trial court denied the motion. To prevail on a jury misconduct claim, Baylor must establish that the misconduct occurred and that he was harmed by it. See Hughes v. State, 24 S.W.3d 833, 842 (Tex.Crim.App.), cert. denied, 531 U.S. 980 (2000); Gomez v. State, 991 S.W.2d 870, 872-73 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd), cert. denied, 528 U.S. 1157 (2000). Baylor's attorney's bare assertion that jurors were discussing the case before it was submitted does not meet this burden. Therefore, the trial court did not abuse its discretion in denying the motion for mistrial. The trial court's judgment is affirmed.