Opinion
No. 05-09-01255-CR
Opinion issued April 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F09-53639-K.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
At trial, a jury convicted Manuel Oscar Gonzalez of aggravated robbery. In one issue on appeal, he complains that the trial court erred by denying his motion for new trial based on jury misconduct. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. On October 7, 2009, the day after the trial court sentenced appellant in the case, a woman who had served on the jury spoke with the judge. The trial court's docket states, "Maribel Gonzalez-Pavea reports to Court that another juror went to internet and printed law of parties and read some portion of it to other jurors. Ms. Gonzalez-Pavea states that she told juror to stop and she did so." On November 4, 2009, appellant filed a motion for new trial and motion in arrest of judgment requesting a new trial based on jury misconduct. The motion requested that the trial court take judicial notice of the "transcript of this Cause and stipulate to the evidence" and noted that a hearing on the motion would need to take place by December 21, 2009 or the motion would be overruled by operation of law. The trial court did not hold a hearing on the motion until January 4, 2010. On that date, the court signed an order purporting to deny the motion for new trial. In his sole issue on appeal, appellant argues that the trial court erred in denying his motion for new trial. He contends the trial court should have granted the motion because jury misconduct occurred in his case. The motion was denied by operation of law on December 21, 2009 before any hearing had occurred on the issue. See Tex. R. App. P. 21.8. By the time the trial court held the hearing, it no longer had jurisdiction to rule on the motion. See Parmer v. State, 38 S.W.3d 661, 666 (Tex. App.-Austin 2000, pet. ref'd). Accordingly, the only item supporting appellant's allegation is the notation in the court's docket. We question how this single docket entry constitutes evidence in support of appellant's motion. See State v. Krueger, 179 S.W.3d 663, 665-66 (Tex. App.-Beaumont 2005, no pet.). Nevertheless, even if the docket notation were taken to be evidence, it was inadmissible under rule of evidence 606(b). See Tex. R. Evid. 606(b); see also Ford v. State, 129 S.W.3d 541, 550-51 (Tex. App.-Dallas 2003, pet. ref'd). Obviously, the State could not object to the "evidence," as it was not offered in a hearing. Finally, the notation fails to demonstrate conclusively that the jury "received other evidence" in the case or engaged "in such misconduct that the defendant did not receive a fair and impartial trial." Tex. R. App. P. 21.3 (f) (g). No reversible error occurred when the trial court overruled appellant's motion for new trial by operation of law. We resolve appellant's sole issue against him. We affirm the trial court's judgment.