Opinion
No. 05-10-00464-CR
Opinion Filed October 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-54679-LT.
Before Justices MOSELEY, FRANCIS, and MYERS.
MEMORANDUM OPINION
The Texas Court of Criminal Appeals granted appellant Aubrey Juan Williams an out-of-time appeal of his conviction for aggravated robbery of an elderly person. Williams contends the trial court erred in denying his motion for new trial, which was based on evidence that during the jury's deliberations, a juror used his cellular telephone to find a definition of a word ("strike") that was used, but not defined, in the jury charge. We review a trial court's denial of a motion for new trial under an abuse of discretion standard. See Easly v. State, 163 S.W.3d 839, 842 (Tex. App.-Dallas 2005, no pet.). The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. In support of his motion for new trial, Williams offered the testimony of one of the jurors, Dorschreal Swiney. Swiney testified that during jury deliberations, another (unnamed) juror used his phone to looked up the definition of the word "strike" and shared that definition with the jury. Williams argues he was entitled to a new trial (1) under Texas Rule of Appellate Procedure 21.3(f) because the jury improperly received "other evidence"; (2) because the juror's act in obtaining a definition of "strike" from an outside source violated his Sixth Amendment right to an impartial jury; and (3) because evidence rule 606(b) does not preclude consideration of Swiney's testimony. We first address his last argument. Rule 606(b) prohibits a juror from testifying about "any matter or statement occurring during the jury's deliberations." Ford v. State, 129 S.W.3d 541, 550 (Tex. App.-Dallas 2003, pet. ref'd); see also Tex. R. Evid. 606(b). The only exceptions to this rule permit a juror to testify about whether any outside influence was brought to bear upon any juror or to rebut a claim that the juror was not qualified to serve. Id. The latter exception is not relevant in this case. The court of criminal appeals has held that "[t]he plain language of the Rule 606(b) indicates that an outside influence is something outside of both the jury room and the juror." White v. State, 225 S.W.3d 571, 574 (Tex. Crim. App. 2007) (emphasis added). See also Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000) ("an `outside influence' originates from sources other than the jurors"); In re S.P., 9 S.W.3d 304, 309 (Tex. App.-San Antonio 1999, no pet.) ("An outside influence must emanate from outside the jury and its deliberations, such as a non-juror introducing information to the jury."); Mathis v. State, No. 05-05-01119-CR, 2006 WL 1479879, at *9 (Tex. App.-Dallas May 31, 2006, no pet.) (not designated for publication) (information printed from internet by juror and shared with jury would not be an outside influence); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex. App.-Houston [1st Dist.] 1991, writ denied) (juror using dictionary to share definition of "negligence" with other jurors not an outside influence), disapproved on other grounds by Golden Eagle Archery, 24 S.W.3d at 369 n. 3. Because Swiney's testimony was not evidence of an outside influence-and thus does not fall within that exception to rule 606(b)-it was "incompetent to support the granting of a motion for new trial." Ford, 129 S.W.3d at 551. As Swiney's testimony provided the only factual support for Williams's motion for new trial, we conclude the trial court did not abuse its discretion in denying that motion. See Easly, 163 S.W.3d at 842. We affirm the trial court's judgment.
Williams also called Brandon Birmingham, one of the prosecutors at the trial, to testify that, after the trial, Birmingham heard a juror mention that another juror looked up the definition of "strike" using his phone. Williams concedes any testimony by Birmingham about what occurred during jury deliberations is hearsay.