Summary
holding that complainant's loss of sight for two weeks with full vision not returning for a month constituted sufficient evidence of serious bodily injury
Summary of this case from Gonzalez v. StateOpinion
Nos. 01-02-01024-CR, 01-02-01025-CR.
Opinion issued February 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 21st District Court Washington County, Texas Trial Court Cause Nos. 13506, 13634.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Vernon Earl Rogers, was found guilty by a jury of the felony offense of burglary of a habitation with the intent to commit aggravated assault in cause number 13506 and of the offense of aggravated assault with a deadly weapon in cause number 13634. The jury assessed punishment at 40 years in confinement for the burglary and 20 years in confinement for the aggravated assault. Appellant asserts, in nine points of error concerning his burglary conviction and eight points of error concerning his aggravated assault conviction, that the trial court erred and asks us to reverse and remand or acquit him. We affirm.
BACKGROUND
In the evening of November 3, 2001, appellant had an argument with Cleo Wade at her house. Appellant had been in a relationship with Wade for seven years; they had two children together and had lived together during this period. However, according to Wade, they were not living together in November 2001. Appellant left Wade's house shortly after this argument. Jessica McClane, who had been in a nearby room during the argument, testified that, after appellant left, Wade asked her to call the police and tell them that it was not an emergency, but she needed a police officer. Wade did not have a telephone in her house, so McClane left to use a pay phone located at least 100 yards from Wade's house. At some point after McClane left, appellant returned to Wade's house. Appellant knocked on the front door a few times. He then kicked in the front door. Wade had fled to the bathroom and closed the door. She did not remember whether she opened the bathroom door, but Officer Todd Ashorn testified that Wade informed him that she had locked herself in the bathroom, but appellant had kicked the bathroom door down as well. Appellant pushed Wade down causing her head to hit the floor, straddled her chest, kept his legs on her arms, and struck her around the eyes with his fists numerous times. Wade testified that at some point she felt she lost consciousness. McClane returned to Wade's house after making the initial phone call to the police. McClane walked inside the house and saw that the front door of the house had been kicked in. She ran to a neighbor's house and called the police again, telling them that appellant had returned and that it was an emergency. A neighbor, Juanita Holloway, had also called the police when appellant started to kick Wade's door. When the police arrived, appellant escaped out of the back door. Wade was taken to the Trinity Hospital emergency room in Brenham. Sherisse Johnson, an emergency medical technician, testified that Wade had hematomas on her head and severe swelling to her eyes. Johnson also testified that Wade told her, after being asked how she had been injured, that her head had been beaten against the concrete floor of her house. Dr. Tara Meyers, a doctor in the Trinity Hospital emergency room, testified that it appeared that Wade had suffered a significant injury to her head and that she had injuries around her eyes and to her left jaw. Specifically, she had swelling above and below her eyes and was unable to move her eyes in all directions. Wade was transferred to St. Joseph's Hospital in Bryan for X-rays and CAT scans to determine the damage because she was still unable to open her eyes. The X-rays and CAT scans did not reveal any brain damage or facial fractures. She was released from the hospital with instructions to see an opthalmologist. Dr. Cheryl Horton, the ophthalmologist who later saw Wade, testified that Wade's eyes were so swollen that even though her eyelids were swollen shut, the whites of her eyes, which were blood red from the blood trapped in them, were visible at the margins of her eyelids. Wade was unable to open her eyes at Dr. Horton's office. Dr. Horton testified that Wade's injuries were serious and could have long term effects. One or two days after the assault occurred, Wade applied for a protective order against appellant. The protective order was granted. The protective order included the statement that Wade and appellant "were living together".DISCUSSION I. Motion to Suppress
Appellant, in his first point of error in the burglary conviction, asserts that the trial court erred in denying his motion to suppress based on collateral estoppel. Under article 28.01 of the Code of Criminal Procedure, a motion to suppress evidence is one in which the defendant (or the State) claims that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary, or procedural reason. State v. Medrano, 67 S.W.3d 892, 901 (Tex.Crim.App. 2002); see TEX. CODE. CRIM. PROC. ANN. art 28.01 (Vernon 2003). On the face of it, appellant's motion to suppress seeks to suppress any evidence obtained as a result of his arrest. However, appellant points to no evidence obtained as a result of that arrest. Further, the record does not reveal any evidence obtained as a result of appellant's arrest. As there is apparently no evidence to suppress, we overrule appellant's first point of error.II. Factual Sufficiency
Appellant, in his second point of error in his burglary conviction, asserts that the evidence was insufficient to support his conviction for the offense of burglary because the State failed to prove that he entered Wade's habitation with the intent to commit aggravated assault with serious bodily injury. Specifically, appellant argues that the evidence was factually insufficient to show that Wade suffered serious bodily injury because there was little evidence that she suffered a substantial risk of death or serious permanent disfigurement. Appellant also asserts, as his first point of error for his aggravated assault conviction, that the evidence was insufficient to support his conviction for aggravated assault with serious bodily injury by use of a deadly weapon because the State failed to prove that appellant caused serious bodily injury and used a deadly weapon. Standard of Review When reviewing factual sufficiency, we review all the evidence, both favorable and unfavorable, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). Under the factual sufficiency standard, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Id. (quoting from Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). Accordingly, we will reverse the fact finder's determination only if "a manifest injustice has occurred." Id. (quoting from Johnson, 23 S.W 3d at 12). In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must avoid substituting our judgment for that of the fact finder. Id. Burglary with Intent to Commit Aggravated Assault Appellant argues that Wade's injuries do not rise to the level of "serious bodily injury" as defined by statute. "Serious bodily injury," as defined in the Penal Code, means bodily injury that creates a substantial risk of death or that actually causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any body member or organ. TEX. PENAL CODE ANN. § 1.07(A)(46) (Vernon 2003). What constitutes a serious bodily injury can only be determined on an ad hoc basis. Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987). Appellant argues that Wade's injuries had a short duration, with the impairment to her vision lasting only about a week, thus not supporting the assertion that she suffered a "protracted loss" of vision. However, the State only had to prove that appellant entered the residence with the intent to cause serious bodily injury or that he attempted to cause or actually caused serious bodily injury. While appellant argues that Wade's injuries did not rise to the level of serious bodily injury, appellant does not discuss any failure to prove intent. Intent may be inferred from the acts and conduct of the defendant. McGee v. State, 774 S.W.2d 229, 234 (Tex.Crim.App. 1989). Appellant entered Wade's residence by kicking down the front door, and, when he determined that Wade was in the bathroom, he kicked down that door as well. Appellant then proceeded to hold her down and to strike her numerous times in the face and eyes. Appellant apparently only ceased his beating of Wade when the police arrived. Given these facts, a rational jury could find that appellant entered Wade's house with the intent to assault Wade and to inflict serious bodily injury, and that appellant attempted to commit the aggravated assault of Wade, even if the injuries that resulted were not permanent or protracted. The verdict of the jury on burglary of a habitation with the intent to commit aggravated assault was not so contrary to the great weight and the preponderance of the evidence as to be clearly wrong. Aggravated Assault with a Deadly Weapon Appellant argues, in his first point addressing the aggravated assault conviction, that the jury charge required the State to prove that appellant caused serious bodily injury and that appellant's fists were deadly weapons. Appellant argues that there was no evidence that Wade suffered a substantial risk of death or serious permanent disfigurement; there was little evidence on protracted loss or impairment of the function of any body member or organ; and the State did not prove that appellant's hands, in the manner of their use, were capable of causing death or serious bodily injury. A deadly weapon may be anything that in the manner of its use is capable of causing death or serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(17)(B) (Vernon 2003). A person's hands are not deadly weapons per se, and they "can become such only in the manner used depending on the evidence shown." Slaton v. State, 685 S.W.2d 773, 775-76 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd) (holding that, while hands could be used as deadly weapon, pushing person over rail with hands did not make hands deadly weapon); Jefferson v. State, 974 S.W.2d 887, 889 (Tex.App.-Austin 1998, no pet.) (holding that hands were deadly weapon when officer struck three times in face, breaking nose and causing some blurred vision). When the State alleges the use of a deadly weapon that is not deadly per se, it must prove beyond a reasonable doubt that the weapon alleged was used in a manner capable of causing death or serious bodily injury. See Hill v. State 913 S.W.2d 581, 584 (Tex.Crim.App. 1996). However, the State need not show that the weapon actually caused serious bodily harm as long as it shows that the weapon alleged, in its manner of use, was capable of causing serious bodily harm. See Brooks v. State, 900 S.W.2d 468, 472 (Tex.App.-Texarkana 1995, no pet.). For the proposition that Wade's injuries were too limited to be considered serious bodily injury, appellant argues that Wade apparently signed two documents less than a day after the assault, was discharged from St. Joseph's after only four hours, and told Dr. Horton's office less than a week after the assault that her sight was improving. Appellant also cites the cases of Villareal v. State and Moore v. State for the limits on the meaning of "serious bodily injury." However, both those cases can be distinguished from the one at issue. In Villareal v. State, the court held that no serious bodily injury resulted when the defendant beat the victim in the face, causing bruises and lacerations, and kicked the victim in the rib cage, causing two fractured ribs. Villareal v. State, 716 S.W.2d 651, 652 (Tex.App.-Corpus Christi 1986, no pet.). While the victim did not lift anything for 10 days, it was because he did not wish to upset his healing. Id. In Moore v. State, the court held that no serious bodily injury resulted when the defendant stabbed the complainant in the back and cut the complainant's nose as there was no serious risk of death present from the stab wound nor was there evidence of a protracted loss or impairment of the function of the nose. Moore v. State, 739 S.W.2d 347, 751-55 (Tex.Crim.App. 1987). Whether the facts in a particular case give rise to a finding that an injury is a serious bodily injury must be determined on a case-by-case basis. See Madden v. State, 911 S.W.2d 236, 244 (Tex.App.-Waco 1995, pet. ref'd) (inability to walk for a month constituted serious impairment of a body member); Powell v. State, 939, S.W.2d 713, 718-19 (Tex.App.-El Paso, 1997, no pet.) (concussion was serious bodily injury when accompanied by some memory loss); Nunez v. State, 117 S.W.3d 309, 327-330 (Tex.App.-Corpus Christi 2003) (abrasions, hematoma, contusions, and bruising to arms and back of head were not serious bodily injury, but damage to finger that prevented the victim from closing her hand and caused pain through entire arm was serious bodily harm as this injury interfered with her housework and continued to affect her for six months after assault); Coshatt v. State, 744 S.W.2d 633, 636 (Tex.App.-Dallas 1987, pet. ref'd) (damaged vertebrae and orders to stay in bed for six weeks constituted protracted impairment). In the case at issue, there was evidence that appellant's fists were deadly weapons and that Wade could have and did suffer serious bodily injury from their use. During the assault, appellant pushed Wade to the floor. He then restrained her with his body by sitting on her chest and straddling her legs. Appellant struck Wade numerous times around the face and eyes. Wade also testified that appellant slammed her head down on the floor. Every witness who saw Wade shortly after this assault commented that her eyes were badly swollen. Wade testified that she was unable to see for two weeks and had not regained full sight over a month after her assault. Her eyes were swollen shut for a period after the beating and so much blood had entered her eyes that the "whites of her eyes" were tinted red. The doctors at Trinity Hospital felt that her injuries were severe enough for her to be transferred to St. Joseph's, which is a trauma hospital. After the transfer, it took four hours for Wade's injuries to be evaluated and there was testimony that four hours is a long time for evaluation of head injuries. Dr. Horton testified that the injuries to Wade's eyes might have long term effects. Besides the obvious seriousness of the injuries themselves, Wade was unable to open her eyes by her own volition for an extended period and Dr. Horton testified that there could be more impairment in the future. From this evidence, a jury could find that appellant's fists were used in such a way to make them capable of causing serious bodily injury, thus making them deadly weapons, and that Wade suffered serious bodily injury from appellant's assault. The verdict of the jury was not so contrary to the great weight and preponderance of the evidence as to be clearly wrong. We overrule appellant's points of error.III. Failure to Grant Objection to Witness and to Admission of Exhibit
Appellant, in his third point of error relating to his burglary conviction and his second point of error relating to his assault conviction, asserts that the trial court erred by failing to grant his objection to the testimony of Miranda Meier, a probation officer who also ran an anger management class, as a witness in the punishment phase of trial and also erred by failing to grant appellant's objection to the admission into evidence of State's exhibit 50, an anger management evaluation. At trial, Meier testified about her anger management class, which appellant took, and her impressions on whether appellant would re-offend. Appellant's counsel took Meier on voir dire, during which Meier stated that she was not a psychologist, not a marriage counselor, had only a minor in psychology, and that her training mainly consisted of classes through her job. At the conclusion of Meier's voir dire, appellant objected to the admission of State's exhibit 50, arguing that it contained a diagnosis that Meier, not being an expert, was not qualified to make. The exhibit, an anger management evaluation form completed by Meier concerning appellant, had a check mark before a statement that the evaluated party was a potential problem and was likely to re-offend. The State argues that Meier's testimony about the content of State's exhibit 50 was admissible under Rule 701 of the Texas Rules of Evidence. A witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are rationally based on his or her perceptions and helpful to the clear understanding of the testimony or the determination of a fact in issue. Tex. R. Evid. 701. Rule 701 requires that the proponent of lay opinion testimony establish that the witness has personal knowledge of the events upon which the opinion is based. Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Personal knowledge may come from the witness's senses or from experience. Id. Once the proponent of an opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. Solomon v. State, 49 S.W.3d 356, 364 (Tex.Crim.App. 2001) (quoting Fairow, 943 S.W.2d at 899); see e.g. Smith v. State, 683 S.W.2d 393, 404 (Tex.Crim.App. 1984) (police officer may give non-expert opinion concerning facts he has observed); Lape v. State, 893 S.W.2d 949, 962 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (abuse of discretion when lay witness not allowed to give opinion on how sound travelled in her home); Austin v. State, 794 S.W.2d 408, 410-11 (Tex.App.-Austin 1990, pet. ref'd) (police officer permitted to testify that, based on his personal experience, it was his opinion that "Swedish deep muscle rub" was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (officer permitted to testify as either lay witness or expert that he interpreted defendant's actions to be a drug transaction). Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court, and its decision regarding admissibility should be overturned only if the trial court abuses its discretion. Fairow, 943 S.W.2d at 901. Here, Meier established that she was an anger management class teacher and that appellant took and completed her class. She had personal knowledge of appellant through the class and could testify as to her perception of appellant's behavior, attitudes, and actions during the class. While her education and experience might not be enough to qualify her as an expert as to whether appellant would re-offend, she had the necessary basis for her lay opinion. Because there was some sound basis for allowing Meier to give her lay opinion under Rule 701, through her testimony about the exhibit, we conclude that the trial court did not abuse its discretion. Appellant also made a relevance objection to Meier's testifying, in response to a question from the prosecution, that, if children were exposed to violent behavior, they were more likely to grow up and be violent themselves. The record shows no ruling on this objection. Appellant did not properly preserve this objection for review. We overrule appellant's points of error.IV. Motion for Mistrial
Appellant, in his fourth point of error relating to his burglary conviction and third point of error relating to his assault conviction, argues that the trial court erred in denying his timely motion for a mistrial based on bringing defense counsel in as a witness in the case and putting defense counsel in the position of not being able to address the implication of such testimony without taking the stand Appellant specifically refers to the State's asking the county attorney to read the address given by appellant in a previous criminal trespass conviction and the name of the appellant's attorney shown on that judgment. Appellant had the same attorney in that case as in the present case, and the address given was 1110 Kerr Street in Brenham, Texas, which is not Wade's address. At the time the information was read to the jury, a certified copy of the judgment had already been entered into evidence without objection. Appellant asserts that the reading of appellant's counsel's name was merely one of several indicia of prosecutorial misconduct, because the prosecutor struck at appellant through his counsel numerous times during trial and the aggregation of these instances of misconduct warranted a mistrial. Appellant points to testimony elicited from Wade by the prosecutor regarding where she obtained affidavits of non-prosecution and to some closing remarks by the prosecutor. Mistrials are an extreme remedy for prejudicial events occurring during trial. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). A mistrial is only required when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). Here, appellant did not object to the admission of the prior judgment, which contained appellant's counsel's name, nor did appellant request that the name be redacted or that the exhibit's use be limited. No argument was made to suggest that the judgment was inadmissible. Appellant made no objection to entering the exhibit into evidence and thus could not object to a witness reading the names contained therein. In regard to the other instances which appellant cites as prosecutorial misconduct, namely the testimony from Wade regarding the affidavits of non-prosecution and the remarks made in the State's closing, appellant did not object to any of these instances and thus, failed to preserve them for appeal. We overrule appellant's points of error.V. Objection to Extraneous Offenses and Motion for Continuance
Appellant, in his fifth point of error relating to his burglary conviction and fourth point of error relating to his assault conviction, argues that the trial court erred by overruling his objection to lack of sufficient notice as to some extraneous offenses and as to some witnesses, as well as denying the related motion for continuance. The standing order of the court in this case required a list of all witnesses, or access to any reports containing the name of all witnesses to be called at trial to the State's case-in-chief, seven days prior to trial. However, if the State failed to comply, the State would not be precluded from calling a material witness, upon a showing of good cause, if the interest of justice so required. Appellant filed a request for notice of intent to offer extraneous conduct under Rule 404(b) and evidence of conviction and evidence of an extraneous crime or bad act. At the pretrial hearing conducted on June 20, 2002, the prosecutor stated "I'll provide [defense] counsel all of the information that I'm required to provide on Case No. 1 as I would on Case No. 2 . . ." The State provided a notice of intent to use extraneous offenses on June 26, but did not state the name of the complainants, as required in article 37.07 § 3(g) of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(g) (Vernon 2003). The State also averred that the list was only of the offenses that were confirmed and that the list would be supplemented if other crimes became known. Appellant made no objection regarding the extraneous offense testimony and the lack of names therein. The State added notice of four witnesses and two additional offenses less than seven days before trial. Appellant complained on the first day of trial about these additional offenses and witnesses and filed a motion to prohibit the State from introducing discovery or witnesses that were not produced at least seven days before the trial commenced. The State argued that they were merely supplementing as soon as extraneous offenses in other counties were discovered and verified. The trial court ruled that appellant would have to approach the bench when the extraneous offenses were introduced and rulings would be made at that time. Appellant objected, asking for a continuance, which was denied. At the beginning of the punishment phase, appellant again objected to the introduction of witnesses and offenses of which appellant received notice less than seven days before trial. The State attested that they gave the information to appellant as soon as it was obtained and verified. The trial court overruled appellant's objections. We review the trial court's ruling as to the admissibility of extraneous offense evidence under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). A trial court's ruling on a motion for continuance is also reviewed under an abuse of discretion standard. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). The purpose of the extraneous offense notice requirement is to avoid unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence. See Roethal v. State, 80 S.W.3d 276, 282 (Tex.App.-Austin, 2002, no pet.). To determine harm in light of that purpose, we analyze whether and how the notice deficiency affected appellant's ability to prepare for the evidence. Roethal, 80 S.W.3d at 281-82. Here, the State informed appellant of the extraneous offenses once they were verified. The prosecutor testified that at least one offense was found only when the prosecutor was discussing the case with a punishment witness and the witness recalled that there was an additional case. The last supplementation of the witness list apparently took place five days before trial. The trial court found that the State made a showing of "good cause" as to when the State notified the defense of the supplementation. Moreover, appellant's counsel failed to show any harm resulting from having five days notice rather than seven days notice. The trial court did not abuse its discretion in allowing the introduction of these extraneous offenses or witness testimony or in denying appellant's motion for continuance based on the delay. We overrule appellant's points of error.VI. Jury Instruction on Extraneous Offenses
Appellant, in his sixth point of error regarding his burglary conviction and his fifth point of error regarding his assault conviction, argues that the trial court erred by failing to instruct the jury, sua sponte, on reasonable doubt as to proof of the extraneous offenses admitted during the punishment phase of trial. Appellant did not object to the jury charge nor did appellant request a limiting instruction on the extraneous offense evidence. Evidence of extraneous offenses may not be considered in assessing punishment until the factfinder is satisfied beyond a reasonable doubt that such offenses are attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Once the fact finder is satisfied beyond a reasonable doubt that such offenses are attributable to the defendant, the fact finder may use the extraneous offense evidence however it chooses in assessing punishment. Id. The reasonable doubt standard set out in article 37.07 section 3(a) of the Code of Criminal Procedure is "law applicable to the case" and thus the jury must be instructed on the burden of proof when the State introduces evidence of extraneous bad acts at the punishment phase of trial. Huizar, 12 S.W.3d at 484. However, because appellant did not object, the Almanza egregious harm standard applies. Id; see generally Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1998). Under this standard, a reviewing court must review the entire record, including the entire jury charge, the state of the evidence, including contested evidence and the weight of probative evidence, the argument of counsel, and any other relevant information to determine if the harm was so egregious that appellant failed to receive a fair and impartial trial. See Huizar, 12 S.W.3d at 484-85. The purpose of this review is to illustrate the actual harm to the accused rather than the theoretical; egregious harm is a difficult standard to prove. Brown v. State, 45 S.W.3d 228, 230 (Tex.App.-Fort Worth, pet. ref'd). Here, the failure to include a "reasonable doubt" standard in the jury charge was not so egregious that appellant failed to receive a fair and impartial trial. The State spent relatively little time on the extraneous offenses during the punishment phase of the trial. Further, the use of the extraneous offenses during the State's closing, while used to show that appellant had injured Wade before, was not egregious. Appellant does not contend that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses, only that the instruction was not given. See Arnold v. State, 7 S.W.3d 832, 835 (Tex.App.-Eastland 1999, pet. ref'd) (trial court's failure to instruct jury on reasonable doubt standard for proof of extraneous offenses was not egregious because appellant did not contend that there was insufficient evidence to prove that he committed extraneous offenses). We do not think the jurors would have disregarded the extraneous offenses if the trial court had given an instruction on reasonable doubt. See id. We hold that the trial court's failure to include a jury charge on "reasonable doubt" as it concerned the extraneous offenses did not cause egregious harm. We overrule appellant's points of error.VII. Motion for New Trial: Jury Misconduct
Appellant, in his seventh point of error regarding his burglary conviction and sixth point of error regarding his assault conviction, asserts that the trial court erred in denying his motion for new trial where new evidence was discovered that amounted to jury misconduct. In the motion for new trial hearing, appellant called juror Adell Gilman who testified that her recommendation on punishment was five years and that other jurors told her that appellant would be back on the streets within a year if he only had a sentence of five years. Gilman further testified that she did not agree with them and did not change her view "until they said a majority of them had won and I didn't know and I just told them they going to do what they going to do anyway and I just went on with them." Appellant also called juror Doris Williams, who also testified that the majority told her that the majority rules. She further testified that she thought appellant only deserved a punishment of five or six years. Rule 606(b) of the Rules of Evidence provides: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 any 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 whether any outside influence was brought to bear upon any juror, or to rebut a claim that the juror was not qualified to serve.TEX. R. EVID. 606(b). Under rule 606(b), jurors are not competent to testify that they decided the verdict by lot, that they decided the case based on another juror's incorrect statement of the law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him. Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, no pet.) Hines, 3 S.W.3d at 620; Brantley v. State, 48 S.W.3d 318, 326-27 (Tex.App.-Waco 2001, pet. ref'd); see also TEX. R. APP. P. 21.3. However, since no objection was raised at the hearing to the admission of this testimony, the applicability of Rule 606(b) is not before us. Bader v. State, 777 S.W.2d 178, 181 (Tex.App.-Corpus Christi 1989, no pet.). Appellant argues that there was jury misconduct as shown by Gilman's and Williams's testimony that someone on the jury told them that the majority wins. A defendant must be granted a new trial "when the verdict has been decided by lot or in an manner other than a fair expression of the juror's opinion." TEX R. APP. P. 21.3(c). To demonstrate jury misconduct, the defendant must show that the misconduct occurred and the misconduct resulted in harm to the movant. Gomez v. State, 991 S.W.2d 870, 871 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (citing Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App. [Panel Op.] 1981)). We review the trial court's ruling on a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). When the trial court resolves "conflicting evidence on an issue of fact as to jury misconduct," resolution of the conflict is for the trial court. See Salazar, 38 S.W.3d at 148. Here, two jurors testified that someone on the jury told them that the majority wins. There was controverting testimony from the foreman of the jury, Douglas Borchardt, who testified that no one made a statement saying that dissenting members of the jury had to go along with the majority. The trial court, as fact finder, is the exclusive judge of the witness's credibility and is free to accept or reject any or all of a witness's testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Appellant also attached an affidavit with the motion in which Anthony Bell, a prisoner at the jail where appellant stayed during trial, testified concerning an incident between appellant and Officer Lange. However, appellant fails to argue the point or indicate how the trial court abused its discretion by denying the motion for new trial due to Bell's statement. We overrule appellant's points of error.
VIII. Jury Consideration of Parole Law
In his eighth point of error regarding his burglary conviction and seventh point of error regarding his assault conviction, appellant asserts that the trial court erred in overruling appellant's motion for new trial when newly found evidence showed that the jury considered parole law in violation of the jury instructions. Three jurors testified at appellant's hearing on his motion for new trial that, in violation of their jury instructions, they considered parole law during sentencing. Appellant asserts that the jury relied upon other jurors to tell them how much time appellant would serve if he was given a certain sentence. A jury's discussion of parole law constitutes reversible error when there is(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher punishment.Id. (emphasis added). Appellant argues that jurors Gilman and Williams changed their votes based on improper information relied upon by them. However, appellant argues in his previous point of error that jurors Gilman and Williams changed their vote due to a statement that they would have to go along with the majority. Appellant, in his brief, states that "when the other jurors could not convince Gilman and Williams to change their punishment, they were told the majority wins." Appellant fails to show that a juror changed his or her vote due to a misstatement of parole law or that the person making the purported statement professed to know the law. We overrule appellant's points of error.