IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0803-11

THOMAS MCQUARRIE, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

GONZALES COUNTY

KELLER, P.J., filed a dissenting opinion in which COCHRAN, J., joined.

The Court decides that a juror’s internet research constituted an “outside influence” for the

purpose of determining whether jurors could testify about the matter in a proceeding to challenge

the jury’s verdict. I disagree, because the text and background of the rule indicate that the phrase

“outside influence” carries a narrower meaning than given by the Court today. I would hold that the

internet research in this case was not an outside influence because the information did not involve

a communication from a person outside the jury. I would further hold that this construction does not

violate appellant’s constitutional rights. 

A. Admissibility under Rule 606(b)
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In construing the meaning of a rule of evidence, an appellate court “should attempt to

effectuate the plain language absent important countervailing considerations.” The courts have 1

more flexibility in interpreting court rules than in construing statutes, and a court can look to

extratextual factors even absent ambiguity in the language of the rule or absurd results flowing from

a plain-meaning interpretation.2

The current version of Rule 606(b), effective March 1, 1998, provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify

as to anymatter or statement occurring during the jury’s deliberations, or to the effect

of anything on any juror’s mind or emotions or mental processes, as influencing any

juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit

or any statement by a juror concerning any matter about which the juror would be

precluded from testifying be admitted in evidence for any of these purposes. 

However, a juror may testify: (1) whether any outside influence was improperly

brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified

to serve.3

The language of the rule imposes a broad prohibition against using juror testimony about

deliberations to impeach a verdict, but the rule nevertheless has limits. The rule does not prohibit

juror testimony about matters or statements occurring before deliberations. The jury deliberation 4

process begins “after the close of the evidence and the jury charge, when the jury retires to weigh the

evidence to arrive at a verdict.” And the prohibition in the rule applies only to post-verdict

5

 Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008). 1

 Id. 2

 TEX. R. EVID. 606(b). 3

 Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 371 (Tex. 2000). 4

 Id. 5
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testimony. And even with respect to post-verdict testimony about deliberations, the rule contains 6

two exceptions, the first of which—outside influence—is at issue in this case.

In construing the meaning of the “outside influence” exception, it is necessary to address the

history of Rule 606(b)’s development. The rule against using juror testimony to impeach the verdict

originated in England with an opinion by Lord Mansfield in 1785. By the beginning of the 7

twentieth century, if not earlier, “the near-universal and firmly established common-law rule in the

United States flatly prohibited the admission of juror testimony to impeach a verdict.” Likewise, 8

“[e]arly Texas decisions followed the Lord Mansfield rule and flatly prohibited jurors from

impeaching the verdict.”9

In the early case of Mattox v. United States, the United States Supreme Court recognized an

exception to the common-law rule for situations in which an “extraneous influence” was alleged to

have affected the jury. Early decisions of the Texas Supreme Court created an exception that 10

allowed jurors to talk about “overt acts of misconduct,” and that exception had some basis in a

11

discussion from Mattox. The “overt act” rule was criticized, however, “because of the difficulty 12

 Id. at 375. 6

Tanner v. United States, 483 U.S. 107, 117 (1987); Golden Eagle Archery, 24 S.W.3d at 7

367.

 Tanner, 483 U.S. at 117. 8

 Golden Eagle Archery, 24 S.W.3d at 367. 9

 Tanner, 483 U.S. at 117; Mattox v. United States, 146 U.S. 140, 149 (1892). 10

 Golden Eagle Archery, 24 S.W.3d at 367. 11

See Mattox, 146 U.S. at 148 (quoting Justice Brewer in Perry v. Bailey, 12 Kans. 539, 545 12

(1874)).
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in drawing a line between acts and mental processes.” One commentator claimed that the Texas 13

rule allowed “a far wider scope of inquiry into the jury’s deliberations than any other state.”14

When the Federal Rules of Evidencewere adopted in 1975, theyincluded Rule 606(b), which

provided:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify

as to any matter or statement occurring during the course of the jury’s deliberations

or to the effect of anything upon his or any other juror’s mind or emotions as

influencing him to assent to or dissent from the verdict or indictment or concerning

his mental processes in connection therewith, except that a juror may testify on the

question whether extraneous prejudicial information was improperly brought to the

jury’s attention or whether any outside influence was improperly brought to bear

upon any juror. Nor may his affidavit or evidence of any statement by him

concerning a matter about which he would be precluded from testifying be received

for these purposes.15

As can be seen from its language, the federal rule contained two exceptions to the general rule

prohibiting juror testimony that impeached the verdict: one involving “extraneous prejudicial

information” and the other involving “any outside influence.” The latter exception is contained in

the modern Texas rule, but the former is not. The report of the United States House Judiciary

Committee explained that the federal rule would permit a juror to testify “as to the influence of

extraneous prejudicial information brought to the jury’s attention (e.g. a radio newscast or a

newspaper account) or an outside influence which improperly had been brought to bear upon a juror

 Golden Eagle Archery, 24 S.W.3d at 368. 13

Id. (quoting 1 MCCORMICK & RAY, TEXAS LAW OF EVIDENCE § 1612 (Texas Practice 14

1980)).

 FED. R. EVID. 606(b) (1975) (emphasis added).

15
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(e.g. a threat to the safety of a member of his family).” This passage in the report suggests that the 16

“extraneous prejudicial information” exceptionwas aimed at a juror’s acquisition of information that

did not involve a communication from a live person to the juror. The JudiciaryCommittee gave the

examples of a juror reading the newspaper or listening to the radio, but other examples could include

watching television or, as in the present case, surfing the internet. By contrast, this passage from the

report suggests that the “outside influence” exception was aimed at a communication from a live

person to the juror about the case.

In 1983, the Texas Supreme Court adopted a version of Rule 606(b) in its rules of civil

evidence. The Texas civil rule was identical to the federal rule except that it omitted the “extraneous

prejudicial information” exception. The Texas Supreme Court “did not explain the significance 17

of its decision to reject an exception for extraneous prejudicial information.” One scholar 18

suggested that the omission signified that the Texas civil rule was more restrictive than its federal

counterpart, while anotherscholar suggested that the federal exceptions for “extraneous prejudicial

information” and “outside influences” were largely redundant. 

19

Our state courts of appeals came down on the side of construing the Texas civil rule more

restrictively, by construing the “outside influence” exception as not encompassing the types of

House Comm. on Judiciary, FED. R. EVID., H.R. Rep. No. 650, 93d Cong., 1 Sess., p. 9

16 st

(1973).

 See TEX. R. CIV. EVID. 606(b) (1997); Golden Eagle Archery, 24 S.W.3d at 368. 17

 Golden Eagle Archery, 24 S.W.3d at 368. 18

Id. (citing Addison, Conduct Unbecoming a Jury: Rule 606(b), 50 TEX. BAR J. 872, 872 19

(1987) (more restrictive) and Black, Article VI: Witnesses, 20 HOUS. L. REV. 409, 423 (1983)

(redundant)). 
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situations that the House Judiciary Committee suggested were covered by the federal “extraneous

prejudicial information” exception. While the federal rule appears to contemplate and has been

construed to permit juror testimony about a juror’s reliance upon a newspaper article, the Texas 20

civil rule has been interpreted more restrictively. Four state courts of appeals—in Houston, San

Antonio, and Corpus Christi—have held that the jurors’ discussion of a newspaper or magazine

article did not constitute an “outside influence.” These courts reasoned that an outside influence 21

“must emanate from outside the jury and its deliberations,” and these courts have expressed a

22

narrow view of what emanated from outside the jury. According to the Fourteenth Court, in Baley,

“outside influence . . . does not include all information not in evidence, unknown to the jurors prior

to trial, acquired by a juror and communicated to one or more other jurors between the time the

jurors received their instructions from the court and the rendition of the verdict.” The Baley court 23

further expounded, “Information gathered by a juror and introduced to other jurors by that

juror—even if it were introduced specifically to prejudice the vote—does not constitute outside

influence.” The views expressed in Baley were later echoed in the Perry opinion from the First 24

See House Comm. on Judiciary, H.R. Rep. No. 650, p. 9; Peveto v. Sears, 807 F.2d 486, 20

489 (5 Cir. 1987); United States v. Straach, 987 F.2d 232, 241 (5 Cir. 1993); Gall v. Parker, 231 th th

F.3d 265, 333 (6 Cir. 2000). See also Mattox, 146 U.S. at 150. th

 Baley v. W/W Interests, 754 S.W.2d 313, 315-16 (Tex. App.–Houston [14 Dist.] 1988, 21 th

writ denied) (newspaper article); Mercy Hospital of Laredo v. Rios, 776 S.W.2d 626, 629-30 (Tex.

App.–San Antonio 1989, writ denied) (same); King v. Bauer, 767 S.W.2d 197, 198 (Tex.

App.–Corpus Christi 1989, writ denied)(same); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex.

App.–Houston [1 Dist.] 1991, writ denied) (magazine article). st

 Baley, 754 S.W.2d at 316; King, 767 S.W.2d at 198; Perry, 821 S.W.2d at 281. 22

 Baley, 754 S.W.2d at 316. 23

 Id. 24
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Court of Appeals and in opinions from the appellate courts in Corpus Christi, Austin, and El Paso.25

Meanwhile, in 1986, we enacted our own rules of evidence, which contained a different

version of Rule 606(b). Our Rule 606(b) was internally contradictory—it contained the original

language of the federal rule limiting juror testimony, but the federal exceptions were replaced with

an exception that swallowed the rule: “except that a juror may testify as to any matter relevant to the

validity of the verdict or indictment.” In Buentello v. State, we gave effect to the “broad, all26

encompassing” language of this so-called exception to allow juror testimony on any matter relevant

to the validity of the verdict. 

27

But that changed in 1998, with the merger of the civil and criminal rules into a single set of

rules of evidence. With one added exception not relevant here, the new (and current) version of Rule

606(b) is the rule from the civil side of our court system. That change was intentional. And though

opinions from the courts of appeals are not binding upon us, those opinions that existed at the time

we adopted the rule deserve special consideration. 

As we have discussed already, those opinions, based largely on Baley, construed the Texas

civil rule more restrictively than its federal counterpart. Appellant contends that Baley is flawed and

should be disregarded. He first argues that the Supreme Court of Texas has rejected Baley’s

definition of “deliberations.” That is true, but irrelevant. The definition of “deliberations” was a

Perry, 821 S.W.2d at 281 (quoting Baley); Soliz v. Saenz, 779 S.W.2d 929, 931-32 (Tex. 25

App.–Corpus Christi 1989, writ denied); Nelson v. Clements, 831 S.W.2d 587, 591 (Tex.

App.–Austin 1992, writ denied). Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 272 (Tex. App.–El

Paso 1994, writ denied).

 See TEX. R. CRIM. EVID. 606(b) (1996). 26

 826 S.W.2d 610, 613 (Tex. Crim. App. 1992). 27
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separate aspect of the discussion in Baley from the meaning of “outside influence”: first the Baley

court had to decide whether discussions occurring before the jury charge was read constituted

“deliberations,” and then, if so, the court had to decide whether an outside influence intruded upon

those discussions. The Supreme Court’s rejection of Baley’s definition of “deliberations” says

28

nothing about its view of Baley’s definition of “outside influence.” Moreover, though it did not

explicitly adopt the specific statements in Baley regarding the meaning of “outside influence,” the

Supreme Court cited Baleywith approval in connection with its discussion of the “outside influence”

issue.29

Appellant also arguesthat we should disregard Baley because it is inconsistent with the Texas

Supreme Court’s statement that “a juror could testify that another juror improperly viewed the scene

of the events giving rise to the litigation.” Appellant contends that this “holding and the reasoning 30

on which it is based appears to support [his] contention that ‘outside influence’ may, indeed, include

information obtained by a juror and relayed to other jurors.” But the Supreme Court’s statement was

not a holding; it was dictum. The Golden Eagle Archery case did not involve a juror viewing the

scene of the crime, nor did it involve any type of juror investigation. And the Supreme Court did 31

not engage in a reasoned discussion to support its dictum; the statement was an offhand illustration

of the Supreme Court’s conclusion that “[a] juror may testify about jurymisconduct provided it does

 See Baley, 754 S.W.2d at 316. 28

 See Golden Eagle Archery, 24 S.W.3d at 370. 29

 See id. 30

 See id., passim.

31
McQUARRIE DISSENT - 9

not require delving into deliberations.”32

Appellant further contends that Baley delivered its holding “out of the blue,” that its holding

was not supported by the cases it cited, and that its holding was contrary to the language of the rule,

as asserted by the dissent. But the Baley holding actually had roots in an earlier case from the 33

Fourteenth Court: Robinson Electric Supply Co. v. Cadillac Cable Corp. It is true that Robinson 34

Electric Supply Co. dealt with a factually distinct situation—the jury’s decision to consider and

calculate prejudgment interest—that was not alleged to have resulted from any sort of investigation

or acquisition of information. But with respect to interpreting identical language in Texas Rule of 35

Civil Procedure 327(b), the court of appeals said:

Important in interpreting the Rule, however, is the fact that the Texas Supreme Court

expressly deleted the proposal by the Rule’s drafters in the Liaison Committee that

Rule 327(b) also allow testimony on whether “extraneous prejudicial information

was improperly brought to the jury’s attention.” [Citation omitted]. This inquiry is

permitted by Federal Rule of Evidence 606(b), and yet the Texas Supreme Court

expressly chose to delete this apparently more liberal test for jury misconduct and

instead opted for the more stringent “outside influence” test.36

In another case, our Court has already commented in passing that the federal rule “is more

expansive than Texas Rule 606(b), because Federal Rule 606(b) permits jurors to testify about

Id. at 370. Another state’s high court has expressed ambivalence on the matter, even under 32

broader language patterned after the federal rule, citing potentially conflicting cases on whether a

juror’s visit to the crime scene constitutes extraneous prejudicial information. Watkins v. Taylor

Seed Farms, 295 Ark. 291, 293, 748 S.W.2d 143, 144 (1988).

 See Baley, 754 S.W.2d at 320-21 (Ellis, J., dissenting).

33

706 S.W.2d 130 (Tex. App.–Houston [14th Dist.] 1986, writ ref’d n.r.e.), cited in Baley,

34

754 S.W.2d at 316. 

 See Robinson Electric Supply Co., 706 S.W.2d at 131-32. 35

 Id. at 132-33. 36
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‘whether extraneous prejudicial information was brought to the jury’s attention.’” Observing the 37

difference between the language of the two rules, the Fifth Circuit has remarked that “[t]he practical

effect of this difference is not altogether pellucid” but has noted the argument that “extraneous

prejudicial information” is a separate or broader concept than “outside influence.” The cases cited 38

in support of that argument involved “situations in which the jurors bring outside information into

deliberations themselves” and usually involved “tests or experiments that jurors had conducted

themselves to help them evaluate the evidence, juror visits to the scene of the alleged accident, and

so on.” And since our adoption of the civil version of the rule, the pronouncements made by the 39

Fourteenth Court in Baley have been echoed by other courts of appeals, sometimes in criminal

cases.40

The Court discounts the significant difference in the wording between the federal and Texas

versions of Rule 606(b) as well as the historical background in which the Texas rule was adopted. 

The Court suggests that it can do so because the significance of the difference in language was

 Lucero v. State, 246 S.W.3d 86, 95 n.10 (Tex. Crim. App. 2008). 37

Salazar v. Dretke, 419 F.3d 384, 402 n.30 (5 Cir. 2005)(citing United States v. Martinez- 38 th

Moncivais, 14 F.3d 1030, 1036 n.3 (5 Cir. 1994)). See Martinez-Moncivais, supra.

th

 Martinez-Moncivais, supra.

39

See Franks v. State, 90 S.W.3d 771, 799 (Tex. App.–Fort Worth 2002, pet. ref’d, untimely 40

filed) (“It has often been held in the civil context that information gathered by a juror and introduced

to the other jurors by that juror does not add up to ‘outside influence,’ even if introduced specifically

to prejudice the vote.”); Hines v. State, 3 S.W.3d 618, 623 (Tex. App.–Texarkana 1999, pet. ref’d)

(“While case law has not clearly identified what constitutes an outside influence, it has clearly

rejected certain conduct as constituting outside influence . . . . Thus, it has been held that information

gathered by a juror and introduced to the other jurors by that juror does not amount to outside

influence, even if introduced specifically to prejudice the jurors’ votes.”); Williams v. Viswanathan,

64 S.W.3d 624, 636 (Tex. App.–Amarillo 2001, no pet.).
McQUARRIE DISSENT - 11

debated in two law review articles. But whatever dispute or uncertainty there is or may have been

among scholars or the federal courts about the meaning of the Texas rule, our own courts of appeals

seem to be in agreement: the term “outside influence” does not encompass information gathering by

a juror that does not involve communicating with other people. Activities such as reading a

newspaper or researching on the internet, while covered by the federal rule, are not covered by the

Texas rule. Though at least two out-of-state jurisdictions have held or suggested that internet

research constitutes an external matter to which a juror may testify, those jurisdictions have the

“extraneous prejudicial information” exception that is in the federal rule. Given the more 41

restrictive nature of the Texas rule, we should conclude, in line with the views held by our state

courts of appeals, that internet research does not constitute an outside influence so long as the juror

does not receive a communication from a person outside the jury. In the present case, The juror’s

act of viewing a webpage about the effects of date-rape drugs did not constitute a communication

from another person. 

Because the juror did not receive a communication from a person outside the jury, I would

hold that the juror was not subject to an “outside influence.” Because the juror was not subject to 42

State v. Abdi, 2012 VT 4, 45 A.3d 29 (2012) (internet research about Somali religion and 41

culture); Stephenson v. State, 742 N.E.2d 463, 477 (Ind. 2001) (observing that there was no evidence

that the juror was exposed to outside influences, including “researching on the Internet”); see also

Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000) (citing Indiana rule as including the

“extraneous prejudicial information” exception).

I recognize that communications from a person outside the jury are not limited to 42

face-to-face or contemporaneous contact. A communication can be conveyed over the telephone,

bymail, or over the internet. Such communication might include leaving a message on an answering

machine, sending a letter, sending an email or instant message, or posting on a message board. But,

as with reading a newspaper, viewing a webpage will not ordinarilyconstitute a communication from

another person to the juror. In an unusual case, a webpage could be a communication from another

person to a juror if it was created or modified with the purpose of communicating with a specific
McQUARRIE DISSENT - 12

an outside influence, her testimony was inadmissible under Rule 606(b).

 B. Constitutionality of Rule 606(b)

In Tanner v. United States, the Supreme Court upheld the constitutionality of the federal

version of Rule 606(b) when the trial judge excluded juror testimony about one of the jurors being

intoxicated. The Court explained that “long-recognized and verysubstantial concerns” supported 43 44

protecting jury deliberations from post-verdict scrutiny:

There is little doubt that postverdict investigation into juror misconduct would in

some instances lead to the invalidation of verdicts reached after irresponsible or

improper juror behavior. It is not at all clear, however, that the jury system could

survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or

inattentiveness, raised for the first time days, weeks, or months after the verdict,

seriously disrupt the finality of the process. Moreover, full and frank discussion in

the jury room, jurors’ willingness to return an unpopular verdict, and the

community’s trust in a system that relies on the decisions of laypeople would all be

undermined by a barrage of postverdict scrutiny of juror conduct.45

The Court further found that a defendant’s Sixth Amendment interests in an unimpaired jury were

“protected by several aspects of the trial process.” First, the suitability of an individual for jury 46

service could be examined in voir dire. Second, the jury can be observed during trial by the court, 47

counsel, and court personnel. Third, “jurors are observable by each other, and may report

48

juror about a case. On the other hand, a message board posting would not be a communication to

a juror if made by and for participants who were completely unaware of the juror and the case.

 483 U.S. at 126-27. 43

 Id. at 127. 44

Id. at 120-21 (citation and parenthetical omitted). 45

 Id. at 127. 46

 Id. 47

 Id. 48
McQUARRIE DISSENT - 13

inappropriate juror behavior to the court before they render a verdict.” Finally, “after the trial a

49

party may seek to impeach the verdict by nonjuror evidence of misconduct.” The Supreme Court 50

characterized “juror testimony as ‘one particular kind of evidence inadmissible under the Federal

Rules,’” and held that a hearing to include that kind of evidence was unnecessary.

51

In Golden Eagle Archery, the Texas Supreme Court upheld the constitutionalityofthe current

version of Texas Rule of Evidence 606(b) when the trial judge excluded juror testimony about

undisclosed juror bias. Looking to Tanner for guidance, the Texas Supreme Court found several 52

applicable protections provided in Texas civil cases. First, litigants may question potential jurors 53

at voir dire, as well as exercise for-cause and peremptory challenges. Second, the trial judge can 54

question jurors during trial and “take corrective measures such as instructing the jury, dismissing

particular jurors, or declaring a mistrial.” Finally, the Texas Supreme Court observed that Texas 55

rules concerning attorneys’ post-trial juror contact are more permissive than the federal rules.56

Appellant contends that Golden Eagle Archery can be distinguished because there is no

constitutional right of confrontation in civil cases. But jurors are not “witnesses” in a classic sense,

 Id. (emphasis in original). 49

 Id. 50

 Id. 51

 24 S.W.3d at 374-75. 52

 Id. at 375. 53

 Id. 54

 Id. 55

 Id. 56
McQUARRIE DISSENT - 14

“with consequent automatic entailment of the confrontation clause, whenever a juror voices any

extra-record facts.” Furthermore, Tanner was a criminal case, and though it addressed a different 57

constitutional right (to an unimpaired jury), “very substantial concerns” still apply when addressing

irresponsible or improper juror behavior that involves jurors considering information that was not

presented at trial. These concerns include (1) keeping jury deliberations private to encourage candid

discussion of a case, (2) protecting jurors from post-trial harassment or tampering, and (3) protecting

the need for finality. “As one authority explained, ‘[t]he question that has vexed courts for years, 58

is how far can they go in opening verdicts to attack on such grounds before the cure becomes worse

than the disease.’” The answer is, not far at all. 59 60

In any event, procedural protections exist to help safeguard a defendant’s ConfrontationClause interests. Potential jurors can be questioned and instructed regarding internet research during

voir dire. The trial judge can instruct the jurors during trial and before deliberations not to engage

 United States ex rel. Owen v. McMann, 435 F.3d 813, 818 n.5 (2 Cir. 1970). 57 nd

 Golden Eagle Archery, 24 S.W.3d at 366-67. 58

Id. at 367 (citing 1 GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND

59

CRIMINAL, § 606.02 (Texas Practice 1993)). 

In a concurring opinion in Golden Eagle Archery, Justice Hecht would extend the 60

prohibition against juror questioning in civil cases to any questioning that occurs after deliberations

have begun. Although I do not find that sort of extension to be appropriate for criminal cases, the

policy reasons he cites certainly apply with even greater force to our more limited rule:“[T]o allow

one juror to attack another juror’s . . . conduct is too great an encouragement of post-trial trials of

the jury” and poses “a significant burden on citizens who give of their time to serve as jurors with

little benefit to the process. Jurors come to decide disputes, not to be drawn into them.” 24 S.W.3d

at 376 (Hecht, J. concurring).
McQUARRIE DISSENT - 15

in internet research. Further, a juror’s use of internet research can be brought to the trial judge’s 61

attention before verdict, and the trial judge can take remedial action, which could include issuing

further instructions, dismissing a juror, or even declaring a mistrial. Given the available procedural

protections and the weighty interests that favor insulating the jurors’ deliberations from scrutiny, I

conclude, and would hold, that Texas Rule of Evidence 606(b) does not violate a defendant’s

constitutional right of confrontation.

I respectfully dissent.

Delivered: October 10, 2012

Publish

See Abdi, 2012 Vt. at P25, 45 A.3d at 38 (“[I]t may well be time to consider a stronger and 61

more technology specific admonition” regarding research on the internet.).