GOMEZ v. STATE (1999)

OPINION ON MOTION FOR REHEARING

We overrule appellant's motion for rehearing, partially grant appellant's motion to publish, withdraw our opinion issued October 22, 1998, and substitute this opinion in its stead.   We vacate, set aside, and annul our judgment of October 22, 1998.

A jury found appellant, Cruz Armondo Gomez, guilty of manslaughter and assessed punishment at two years confinement.   We affirm.

In his first point of error, appellant asserts the trial court erred in denying his motion for a new trial due to jury misconduct, and subsequent judicial error.   In his second point of error, appellant asserts he was denied his right to a fair trial, in violation of the United States and Texas constitutions, by the misconduct of the jury and the material judicial error that followed.

 A new trial shall be granted an accused when the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial.  Tex.R.App.P. 21.3(g).   A movant for a new trial based on jury misconduct must prove that (1) the misconduct occurred and (2) the misconduct resulted in harm to the movant.  Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App.1981).   The issue of whether jury misconduct took place is determined by the trial court.  Stowe v. State, 745 S.W.2d 568, 569 (Tex.App.-Houston [1st Dist.] 1988, no pet.).   The finding of the trial court that no jury misconduct occurred is binding on the reviewing court and will be reversed only where a clear abuse of discretion is shown.  Id.

On September 4, 1996, Sharon Cook, official court reporter for the 263rd District Court, was riding in the elevator located in the Harris County Criminal Courts Building, when she heard two female passengers, who were wearing juror badges from the 232nd District Court-Judge Mary Lou Keel, discussing issues related to a criminal case.   She could not remember the exact words of their conversation, but she did recall the two women discussing prior convictions and other matters.¹  The next day, September 5, 1996, Cook informed the 232nd District Court about the conversation.   Later that day, the jury returned a verdict on appellant's punishment and was released by the court.   Judge Keel then informed appellant's counsel that earlier in the day she had been informed by Cook that two jurors had been overheard discussing the case in an elevator.

Appellant filed a motion for new trial alleging jury misconduct.   In support of his motion, appellant attached two affidavits:  his trial attorney's and Cook's.   Cook's affidavit stated:

(3.) On September 5, 1996, I was one of several people in the public elevator located in the Harris County Criminal Courts Building located at 301 San Jacinto, Houston, Texas.   I clearly heard two (2) of the female passengers discussing issues related to a criminal case.   I do not recall the exact words of the two women, but I did hear the women discussing prior convictions and other matters related to a criminal case.   I clearly saw that both women were wearing juror badges from the 232nd District Court, Judge Mary Lou Keel.

(4.) A short while later that same day, I informed Arlene Webb. Arlene Webb is the Official Court Reporter for the 232nd District Court.   When I told Arlene Webb what I had heard the two women discussing in the elevator, she said it did sound like the case which was currently in trial in the 232nd District Court-The State of Texas vs.   Cruz Armondo Gomez.

Appellant's trial attorney's affidavit restated the information in Cook's affidavit.   Appellant did not support his motion with testimony or affidavits from any of the jurors.

 Article 36.22 of the Code of Criminal Procedure states:

No person shall be permitted to be with a jury while it is deliberating.   No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.

Tex.Code Crim.P.Ann. art. 36.22 (Vernon 1981).   The purpose of article 36.22 is to prevent an outsider from saying something that might influence a juror.  Ites v. State, 923 S.W.2d 675, 677 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).   Therefore, when a juror communicates with an unauthorized person about the case at trial, there is a presumption that the defendant was injured.  Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App.1997).   This presumption is rebuttable, and a new trial is not required unless there has been injury to the accused.  Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App.1995).

 Appellant asserts the jury engaged in misconduct when two jurors discussed, with each other, elements of a case in a public forum.   Appellant relies on cases where a jury received outside evidence or where a third party spoke to a juror.   Here, the jurors did not discuss evidence with anyone outside the jury nor has it been shown that the jurors discussed inadmissable or outside evidence.

In support of his motion for new trial, appellant relied on the solitary statement from Cook's affidavit stating that she could not remember the exact words of the jurors conversation, but she did recall the two jurors discussing “prior convictions and other matters.”   Neither Cook nor appellant suggested the jurors were speaking to, or were spoken to by, Cook or anyone else in the elevator.   There is no evidence that the jurors communicated with an unauthorized person.   The facts merely indicate that, after deliberations had begun in the punishment phase, two jurors discussed the case without all the jurors present.   Although we do not condone the jurors' conduct, which contravened explicit instructions from the judge, we can find no case holding that a trial court abused its discretion in denying a motion for new trial when two jurors discussed the case with each other on breaks.   Cf. Baley v. W/W Interests, Inc., 754 S.W.2d 313, 316 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (holding that any conversation regarding the case occurring between or among jurors is a part of jury deliberations regardless of the time and place where it occurs, even on lunch or coffee breaks before the “formal” deliberations have begun);  Wilson v. Texas Parks and Wildlife Dept., 853 S.W.2d 825, 831 (Tex.App.-Austin 1993), rev'd on other grounds, 886 S.W.2d 259 (Tex.1994) (holding discussion between two jurors in the men's room did not constitute jury misconduct).

 Furthermore, there is no evidence that appellant's substantial rights were affected by the jurors' conversation.   In the absence of a showing of harm, there is no reversible error.  Garza, 630 S.W.2d at 274;  Tex.R.App.P. 44.2(b).

 Appellant further complains that the trial court erred by waiting until after the jury had been dismissed to inform appellant of possible juror misconduct.   We agree that the better procedure would have been for the trial judge to promptly inform the State and defense counsel of the possible jury misconduct so that the jurors could have been questioned before the end of trial.   See Robinson v.. State, 851 S.W.2d 216, 229 (Tex.Crim.App.1991).   However, we conclude no reversible error has been shown.   Appellant did not call any jurors as live witnesses in the hearing on his motion for new trial nor did he file any juror affidavits.   There is no indication in the record that appellant's counsel even talked to any of the jurors after the trial.   Appellant has failed to show his substantial rights were affected by the trial court's actions.  Tex.R.App.P. 44.2(b).

We overrule appellant's first and second points of error.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App.P. 47, and is thus ordered not published.

We affirm the judgment.

In his third point of error, appellant asserts the evidence was both legally and factually insufficient to support the manslaughter conviction.   We review the evidence in accordance with the standards for legal sufficiency review, McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997), and factual sufficiency review, Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

Appellant, a 74-year old Hispanic male, had been living at 10303 Envoy for 40 years.   In response to the deterioration of his neighborhood, appellant placed bars on all his windows and a metal fence around his yard.   He also attended a police seminar where he and others were told to get involved in their community.   They were instructed to call the police if they ever suspected criminal activity, and to document criminal activity with a camera.

The neighbors that appellant suspected most of criminal activity, and of whom he made a regular practice of taking pictures, were Martin Mameaux and Gilbert Noel. Because of his suspicion of Mameaux and Noel, and his persistence in taking pictures, tensions ran high among appellant, Noel, and the persons who congregated at Mameaux's house.2

On June 27, 1995, appellant was leaving his home with his cell phone and camera.   As he walked down his driveway to unlock his metal gate,3 appellant noticed a group consisting of Mameaux, Leroy King Jr., and two others, outside of Mameaux's house.   Appellant began to take pictures of them.   King walked out into the street and told appellant, “if he wanted to take pictures of something he could take a picture of this,” grabbing himself in the process.   King and appellant then began to yell and cuss at one another.   Noel and his wife drove by and saw the argument between King and appellant.   After the argument with King, appellant went back inside his home, where his son, a police officer, was sleeping.4

Appellant soon realized that he had retreated into his home without first closing his gate, so he took his 9 mm semi-automatic Glock pistol and went back down the driveway to close and lock the gate.   Appellant testified that when he reached the end of his driveway to close the gate, the group in front of Mameaux's house began to cuss at him.   Appellant became frightened, and he dropped his gun.5  According to appellant, Noel and his wife began to walk toward appellant's home from the right,6 and Mameaux and his group, including King, began to approach appellant from the left. Appellant began to have a shouting match with Noel and his wife.   Appellant then turned to the group approaching from Mameaux's house and told them, “Come on, I've had all I can take.”   Appellant then momentarily turned back to the approaching Noels, and then spun back toward Mameaux's group and began to shoot.7

Gregory Cross, who was visiting a family member next door to appellant at the time of the shooting, testified he heard three or four initial shots.   These initial shots caused him to go to the window.   He saw men running away from appellant's house.   Cross heard a second volley fired toward King and the others, and it was during this second volley that King was struck in the back of the head.   Cross stated, “There was a distinct pause between the two series of shots.” 8

After appellant fired seven shots at King and the others, he turned toward Noel and his wife and fired four additional shots.

The law provides, and the jury was charged, that a person commits the offense of manslaughter if he recklessly causes the death of an individual.   Tex.Penal Code Ann. § 19.04(a) (Vernon 1994).   A person acts recklessly with respect to the result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur.   Tex.Penal Code Ann. § 6.03(c) (Vernon 1994).   The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant's standpoint.  Id.

The jury was also charged on the law of self defense.   A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against another's use or attempted use of force.  Tex.Penal Code Ann. § 9.31(a) (Vernon 1994).   The use of force is not justified in response to verbal provocation alone.   Tex.Penal Code Ann. § 9.31(b) (Vernon Supp.1998).   If the defendant provoked another's use of or attempted use of unlawful force, the defendant's use of force is not justified unless the defendant abandons the encounter or clearly communicates his intent to do so and the other person nevertheless continues or attempts to use unlawful force against the defendant.  Id. To be justified in using deadly force in self defense, the evidence must show a reasonable person in the defendant's situation would not have retreated.   Tex.Penal Code Ann. § 9.32(a)(2) (Vernon Supp.1998).

The State is not required to affirmatively produce evidence to refute a self-defense claim, but must prove its case beyond a reasonable doubt.   Saxton v. State, 804 S.W.2d 910, 912 (Tex.Crim.App.1991).   The issue of self defense is an issue of fact to be determined by the jury and the jury is free to accept or reject the appellant's evidence.  Id. at 913-14.   A verdict of guilty is an implicit finding rejecting the defendant's self defense theory.  Id . at 914.

Appellant argues that he acted in self defense.   Although there is evidence that King told appellant, “I am going to blow you away,” verbal provocation alone does not entitle appellant to use deadly force to defend himself.   Tex.Penal Code Ann. § 9.31(b)(1) (Vernon Supp.1998).   The evidence is conflicting about King's actions toward appellant.   Several witnesses testified appellant was taunting the men to come closer to his house “if they were bad.”   A trace metal test proved negative for weapons on King's body, and no weapon was found.   There was evidence that appellant could have retreated into his home on three separate occasions, where his son, a police officer, was sleeping.   There was evidence that King was shot as he was running or walking away.

Appellant argues the “State produced two convicted felons,” “a common law wife of one of the felons,” and “Mr. King himself was a convicted felon,” suggesting that this court can make a finding of factual insufficiency based on witness credibility.   However, this court must defer to the jury's determination of witness credibility when reviewing factual sufficiency.  Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997).

The evidence is legally and factually sufficient to support the conviction.   Accordingly, we overrule point of error three.

We affirm the judgment.

FOOTNOTES

1.   The record shows that the conversation on the elevator took place on the second day of jury deliberations on punishment in the present case.

FN2.  Mameaux, at the time of the incident, lived at 10310 Envoy, which is across the street from appellant and two doors down on the left.   Noel lived at 10229 Envoy, which is just to the right of the appellant's house..  FN2.  Mameaux, at the time of the incident, lived at 10310 Envoy, which is across the street from appellant and two doors down on the left.   Noel lived at 10229 Envoy, which is just to the right of the appellant's house.

FN3.  This is about the last thing anyone in this case agrees on..  FN3.  This is about the last thing anyone in this case agrees on.

FN4.  The pictures from appellant's camera show that during the first argument only King went into the street to argue and fuss with appellant.   Nevertheless, appellant testified he was chased into his house by the entire group.   Appellant never went to wake his son and tell him he was having a problem with his neighbors..  FN4.  The pictures from appellant's camera show that during the first argument only King went into the street to argue and fuss with appellant.   Nevertheless, appellant testified he was chased into his house by the entire group.   Appellant never went to wake his son and tell him he was having a problem with his neighbors.

FN5.  Mameaux testified King was taunting appellant when he came back out to close his gate..  FN5.  Mameaux testified King was taunting appellant when he came back out to close his gate.

FN6.  Having seen the initial confrontation between King and appellant, the Noels' approached appellant to argue on behalf of Mameaux and his friends..  FN6.  Having seen the initial confrontation between King and appellant, the Noels' approached appellant to argue on behalf of Mameaux and his friends.

FN7.  The testimony differs as to whether or not King and the others actually ran toward appellant.   Appellant testified that he was rushed and that he saw a gun.   Appellant's neighbor, Tony Taylor, who watched the entire scene from the side of his yard, initially told the police that King and the others approached appellant, but changed his testimony to “rushed the appellant” at trial.   Mameaux testified that they were walking and did not run.   Tony Taylor further testified that appellant could have retreated back into his home on three separate occasions..  FN7.  The testimony differs as to whether or not King and the others actually ran toward appellant.   Appellant testified that he was rushed and that he saw a gun.   Appellant's neighbor, Tony Taylor, who watched the entire scene from the side of his yard, initially told the police that King and the others approached appellant, but changed his testimony to “rushed the appellant” at trial.   Mameaux testified that they were walking and did not run.   Tony Taylor further testified that appellant could have retreated back into his home on three separate occasions.

FN8.  Appellant testified that he fired continuously as he ran up the driveway in fear for his life;  police testified that the first seven shell casings were arranged in a random fashion, but that the last four were in a position that indicated steady shooting from one location..  FN8.  Appellant testified that he fired continuously as he ran up the driveway in fear for his life;  police testified that the first seven shell casings were arranged in a random fashion, but that the last four were in a position that indicated steady shooting from one location.

MIRABAL, J.