No. 05-04-00178-CR
Opinion Filed March 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01566-RV. Affirm.
Before Justices BRIDGES, RICHTER, and LANG.
Opinion By Justice LANG.
Choski Robinson, Jr. appeals his conviction for aggravated sexual assault of a child. A verdict of guilty was returned by a jury and Robinson was assessed fifteen years' confinement. In his sole issue, Robinson claims that the trial court erred in denying, without a hearing, his motion for new trial in which he claimed jury misconduct deprived him of the right to a fair trial. Specifically, Robinson contends that two jurors disregarded the court's instruction not to consider Robinson's failure to testify as a circumstance against him. We decide against Robinson on this issue and affirm the trial court's judgment.
I. BACKGROUND
After a jury found Robinson guilty of aggravated sexual assault, he was sentenced to fifteen years' confinement. Robinson timely filed a motion for new trial, contending that jury misconduct denied him the right to a fair trial. Specifically, Robinson argued that two jurors disregarded the court's instruction not to consider his failure to testify as a circumstance against him. Robinson's motion was denied without a formal hearing. In support of his motion for new trial, Robinson provided the affidavit of one juror and the details of a telephone conversation between counsel and another juror. The main point of the jurors' statements was that they would have liked to see Robinson testify in his own defense. Robinson's failure to testify "bothered" them and "would have made a difference." Neither juror said that Robinson's failure to testify was a "circumstance against him" or that they had discussed the failure to testify during jury deliberations. II. APPLICABLE LAW
A trial court's decision to deny a motion for new trial alleging jury misconduct will not be reversed absent a showing of an abuse of discretion. Beck v. State, 573 S.W.2d 786, 791 (Tex.Crim.App. 1978). A motion for new trial which reveals the mere mention in the jury room of the defendant's failure to testify may be properly denied unless the reference amounts to a discussion by the jurors or is used as a circumstance against the defendant. Smith v. State, 873 S.W.2d 66, 70 (Tex.App.-Tyler 1993, pet. ref'd) (finding no jury misconduct where juror testimony "failed to show that the jury used Appellant's failure to testify as a circumstance against the accused, or that it amounted to a discussion.") (emphasis in original). III. DISCUSSION
In the present case, the evidence offered by Robinson to show jury misconduct does not amount to a discussion by the jurors as to Robinson's failure to testify. Further, the evidence does not show that the jurors used Robinson's failure to testify as a circumstance against him. Accordingly, we conclude that the trial court did not abuse its discretion in denying Robinson's motion for new trial. See Smith, 873 S.W.2d at 70. IV. CONCLUSION
We decide against Robinson on his issue and affirm the trial court's judgment.