Opinion
No. 05-02-01149-CR
Opinion filed June 27, 2003. Do Not Publish
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-57323-P AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
OPINION
A jury convicted Gregory Antwaun Henderson of aggravated robbery and assessed punishment at thirty years in prison. In his sole point of error, appellant complains the trial court erred in refusing to grant his motion for a new trial based on a claim of jury misconduct. We affirm. During a recess in the punishment phase of jury deliberations, juror Evelyn Yanes telephoned one of her coworkers, an attorney, to discuss work-related topics. During the course of the conversation, Yanes asked her coworker what would happen if the jury could not reach a decision. The coworker informed Yanes that they would be a "hung jury" and would be dismissed. Yanes did not discuss the specific facts of the case, her role as a juror, specific comments from other jurors, the jury charge, or anything specific to the law. The following day, after more deliberations, the jury sent out a note indicating it could not reach a verdict, and the trial court instructed the jury to continue deliberating. After receiving a second note from the jury indicating it was unable to reach a decision, the court informed the jury that the case would be dismissed if it was unable to reach a verdict and would likely be tried before another jury. The jury subsequently reached a unanimous punishment verdict, and appellant filed a motion for a new trial based on allegations of jury misconduct. At the hearing on appellant's motion, Yanes testified the conversation with her coworker did not affect her deliberations or subsequent decision in the case and she had not shared the information with any other jurors. Further, she testified the information she received from her coworker was "basically the same information" that the jury later received from the court. Her coworker confirmed the content of the conversation. The trial court denied the motion for a new trial. In his sole point of error, appellant argues Yanes's conversation with her coworker constituted juror misconduct and the trial court therefore abused its discretion in refusing to grant a new trial. Article 36.22 of the Texas Code of Criminal Procedure prohibits any person from conversing "with a juror about the case on trial except in the presence and by the permission of the court." Tex. Code Crim. Proc. Ann. Art. 36.22 (Vernon 1981). If the communication violates article 36.22, a new trial may be granted if it is shown that the accused sustained some injury due to the unauthorized communication. Moody v. State, 827 S.W.2d 875, 899 (Tex.Crim.App. 1992). Evidence of an unauthorized communication will create a presumption of harm, which the State must rebut in order to prevent the granting of a new trial. Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1992). The State can rebut this presumption when it shows that the communication did not prejudice the juror and the conversation was not relayed to other jurors. Quinn, 958 S.W.2d at 402; Robinson v. State, 851 S.W.2d 216, 230 (Tex.Crim.App. 1991). In determining whether the State rebutted the presumption, the appellate court gives the trial court's determination regarding the credibility and demeanor of the witnesses and evidence, as a question of fact, almost total deference. Quinn, 958 S.W.2d at 401-02. In the instant case, both the juror and her coworker testified as to the content of the conversation, and the juror testified under oath that the conversation neither affected her deliberations nor was communicated to the other jurors. Given this evidence, it was not an abuse of discretion for the trial court to deny the motion for new trial. See Robinson, 851 S.W.2d at 230 (trial court did not abuse discretion in denying mistrial when juror received evidence outside record but did not share it with other jurors and said information would not influence her in reaching verdict). We overrule the point of error and affirm the trial court's judgment.