IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0305-13

WILKIE SCHELL COLYER, JR., Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

COCHRAN, J., delivered the opinion of the unanimous Court.

O P I N I O N

A jury convicted appellant of driving while intoxicated. The trial judge denied his

motion for new trial, which alleged that outside influences were improperly brought to bear

on the jury foreman. The court of appeals, over a dissent, held that the trial court abused its

discretion in denying appellant’s motion for new trial alleging juror misconduct. Because

1

Colyer v. State, 395 S.W.3d 277, 283 (Tex. App.—Fort Worth 2013) (“Because the 1

uncontroverted evidence in this case established that the foreman in Appellant’s trial changed his

vote to guilty and that his vote was contrary to a fair expression of his opinion, we hold that the trial

court abused its discretion by denying Appellant’s motion for new trial.”).
Colyer Page 2

appellant’s “outside influence” argument misapplies our holding in McQuarrie v. State, we

2

granted the State’s petition for discretionary review. Personal pressures—such as a fear of

3

inclement weather or concern about a child’s illness—are not “outside influences” under

Texas Rule of Evidence 606(b). Accordingly, juror testimony about these issues is not

admissible. Because appellant failed to prove that the jury’s verdict was tainted by juror

misconduct, the trial judge did not abuse his discretion in denying appellant’s motion for new

trial. We therefore reverse the court of appeals.

I.

At about 1:30 a.m., appellant was driving home alone after having dinner with friends.

Police found him stopped in the middle of an intersection, passed out behind the wheel. At

trial, the State presented a video of appellant’s performance on the field sobriety tests and of

his refusal to submit to a breath test, as well as testimony from the arresting officer. The

defense argued that appellant was overworked and sleep deprived, which caused him to fall

asleep at the wheel while waiting for the light to change.

The jury found appellant guilty of DWI. After the jury returned its verdict, the judge

 380 S.W.3d 145 (Tex. Crim. App. 2012). 2

 We granted the State’s three grounds for review: 3

(1) Should the Court of Appeals presume that the sole witness at a motion for new trial

is telling the truth—when the trial judge could have made its decision to deny the

motion based on its reasonable disbelief of that witness?

(2) Does Rule 606(b) permit a juror’s testimony that outside information pressured him

to quickly reach a verdict despite the fact that the information did not influence him

one way or the other?

(3) Must the prevailing party in a motion for new trial object to inadmissable evidence?
Colyer Page 3

asked the jury foreman, Mr. Aguilera, if the verdict was unanimous. Mr. Aguilera

responded, “Yes, your Honor.” Based on the foreman’s body language while responding,

appellant’s counsel asked for the jury to be polled. Mr. Aguilera’s initial statement when

4

polled was, “It was a majority—It was—Yes, Your Honor.” When asked to clarify, he said,

“We all took a poll and we voted unanimously.”

During the punishment phase, appellant’s counsel noted that

the juror said that it was a majority and then I approached the Court about my

concern about that wording and his body language, and I just want to put on

the record what I noticed was that he appeared upset. He appeared frustrated.

He was—He rolled his eyes. He kind of huffed when he was asked.

You then asked him again, and he rolled his eyes and—and just sort of

very abruptly said, [“]hahh.[”] I’d also like to point out that—just for the

record, we were busy—that we got the note about—dispute about police

testimony, then we asked them to clarify . . . the clarification came back that

it was actually testimony about the defense witness. In the process of us trying

to pull that testimony and get it for them, they came back with the verdict

pretty abruptly without the testimony transcript being given—the transcript

being given to them.

So just based on his body language, his nonverbal expressions

and—and what I watched him say when he—after he said it was a majority,

which, obviously, legally it has to be unanimous, I would ask the Court to

withhold sentencing until a later date.

 The full exchange was as follows: 4

Defense: Your Honor, we would like the jury polled, please.

Judge: All right. Mr. Aguilera, was that your verdict?

Aguilera: It was a majority—It was—Yes, Your Honor.

Judge: Okay. I have to ask each of you individually. . . . 

Defense: (On-the-record bench conference.) I’m concerned because Mr. Aguilera just said that

was a majority and he hesitated. . . . 

Judge: Okay. Mr. Aguilera, you made the statement it was a majority verdict. Was it

unanimous or—Would you explain to me what you meant by that?

Aguilera: We all took a poll and we voted unanimously, Your Honor.
Colyer Page 4

Two months later, the trial judge sentenced appellant to twenty days in jail, a $550

fine, and a six-month suspension of his driver’s license. Appellant filed a motion for new

trial, alleging juror misconduct. At the hearing on the motion for new trial, appellant called

Mr. Aguilera as his sole witness. From the start, the State opposed the motion, arguing that

there was no legal basis for a hearing because “[a]ny evidence outside of the record which

the Defense at this time wishes to present to the Court is specifically prohibited by Rule

606(b) of the Texas Rules of Evidence.” The trial judge allowed the hearing to proceed, but

limited the scope of the testimony to the two Rule 606(b) exceptions. The State then

5

objected to the content of Mr. Aguilera’s testimony nine separate times.

Mr. Aguilera testified that his verdict was not a fair expression of his opinion due to

an array of “outside influences,” including the late time of day, the distance to the parking

lot, the approaching inclement weather, and the amount of time it was taking to respond to

6

the jury’s notes. Mr. Aguilera was particularly affected by a call he received during

deliberations from his doctor informing him that his daughter had tested positive for MRSA.

7

 “[A] juror may testify: (1) whether any outside influence was improperly brought to bear 5

upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.” TEX. R. EVID.

606(b).

Mr. Aguilera testified, “It was extremely windy, dark, clouds, people were—it 6

was—worried about the tornado that had hit before, so it was panic. There were phone calls made

while we were waiting on paperwork.”

Mr. Aguilera said that his doctor called because “I have a severe case of chronic arthritis 7

due to an anthrax injection that was given to me before I went to Desert Storm, Kuwait. My

daughter had an abscess on her body which was covered—which I was covered in 90 percent of the

year prior. She becamepositive forMRSA.” Methicillin–Resistant Staphylococcus Aureus (MRSA)

is a serious staph infection caused by an antibiotic-resistant bacterium.
Colyer Page 5

He testified that this call influenced him to change his verdict: “[He] had to concede to the

other people and get home to [his] daughter immediately.” He agreed that the deliberations

were cut short because all of the jurors were affected by “outside influences.”

8

After Mr. Aguilera testified, the State reasserted that “[n]othing that Mr. Aguilera has

testified to can even be considered an improper outside influence. . . . The very purpose of

606(b) is so that defendants don’t have an opportunity to relitigate their cases, that they don’t

have an opportunity to talk to jurors and have them change their minds.” The trial judge

denied the motion for new trial without comment.

The court of appeals majority reversed, finding that “the trial court abused its

discretion by denying Appellant’s motion for new trial.” First, because the State did not

9

object to each individual piece of testimony, cross-examine Mr. Aguilera, or present evidence

from other jurors to contradict his testimony, the court called Mr. Aguilera’s testimony

“uncontroverted.” Next, the court stated that, because the State did not dispute the

10

 Defense counsel asked Mr. Aguilera the following question: 8

Do you feel that there were outside influences such that you’ve mentioned; the time

of day, parking, which required a ride to the shuttle bus and their concern over when

that stopped, the weather, the calls from home regarding their concern and the

amount of time that it was taking to get certain things that you requested via the juror

notes, do you feel that those outside influences combined caused the deliberations to

proceed quicker or in a manner that—that was—that the deliberations were

abbreviated and that they were actually cut off so that y’all could be dismissed and

everyone could attend to get their cars and avoid the weather and that sort of thing?

Mr. Aguilera responded, “Absolutely.” 

Colyer, 395 S.W.3d at 283. 9

See id. at 282 (“All this testimony [by Mr. Aguilera] went unchallenged by the State, and 10

there was no conflicting evidence for the trial court to resolve against it. Thus, Aguilera’s testimony
Colyer Page 6

testimony, there was no need to do a 606(b) analysis. Finally, because Mr. Aguilera’s

11

testimony unequivocally established that “outside influences” caused him to change his vote,

he reached his verdict in a “manner other than a fair expression of the jurors’ opinion.”

12

Therefore, the trial judge should have granted appellant’s motion for new trial.

13

The dissent argued that the trial judge did not abuse his discretion because the

telephone call and the weather were “personal pressures,” not outside influences. Therefore,

Mr. Aguilera’s testimony was inadmissible under Rule 606(b). Furthermore, the dissent

14

noted that the State objected to the entire hearing on Rule 606(b) grounds and repeated this

objection throughout, thus, the court of appeals should have applied Rule 606(b).

15

II.

A. Standard of Review

We review a trial judge’s denial of a motion for new trial under an abuse of discretion

established without dispute that an outside influence caused him to vote differentlythan he otherwise

would have.”).

Id. (“Aguilera testified without objection, with no cross-examination, and against no 11

controverting evidence that outside influences caused him to change his verdict to guilty despite his

belief that the State had not proven its case beyond a reasonable doubt, in order to allow him to leave

the jury room immediately. Contrary to the State’s position, we will not hold that rule 606(b) applies

to testimony that comes in unopposed by objection.”).

Id. at 283. 12

 Id.; TEX. R. APP. P. 21.3(c) (listing reasons defendant must be granted a new trial). 13

 Colyer, 395 S.W.3d at 283 (Walker, J., dissenting). 14

 Id. at 284 n.2. 15
Colyer Page 7

standard. “We do not substitute our judgment for that of the trial court; rather, we decide

16

whether the trial court’s decision was arbitrary or unreasonable.” A trial judge abuses his

17

discretion in denying a motion for new trial when no reasonable view of the record could

support his ruling. We view the evidence in the light most favorable to the trial judge’s

18

ruling and presume that all reasonable factual findings that could have been made against the

losing party were made against that losing party.

19

At a motion for new trial hearing, the judge alone determines the credibility of the

witnesses. Even if the testimony is not controverted or subject to cross-examination, the

20

trial judge has discretion to disbelieve that testimony. In explaining the distinction between

21

“uncontradicted testimony” such as Mr. Aguilera’s and “undisputed facts” (such as those

facts both parties agree to or that are subject to judicial notice), we have noted that “a

 Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). 16

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). 17

 Id. at 763. 18

Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997) (upholding trial judge’s 19

denial of motion for new trial based on juror misconduct, noting that court of appeals had failed to

give appropriate deference to trial judge’s credibility determinations). 

 Salazar, 38 S.W.3d at 148. 20

 Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005) (“Appellant contends, 21

however, that the trial court had no discretion to disbelieve appellant’s testimony about requesting

counsel before the magistrate because the State never controverted that testimony. But the trial court

has discretion to disbelieve testimony even if it is not controverted.”); see also Evans v. State, 202

S.W.3d 158, 163 (Tex. Crim. App. 2006); Hernandez v. State, 161 S.W.3d 491, 501 (Tex. Crim.

App. 2005).
Colyer Page 8

defendant’s mother may testify that the defendant was with her in Oshkosh on the night of

the murder. Even though the State does not cross-examine the defendant’s mother, the jury

is not required to believe her uncontradicted testimony.”

22

B. Rule 606(b) of the Texas Rules of Evidence

Early English common law allowed advocates to harass the jury after trial to elicit

admissions of juror misconduct in support of a motion for new trial. In essence, after the

23

jury trial, the jury was tried. In 1785, Lord Mansfield ended this practice by prohibiting

judgesfrom admitting testimony from jurorsimpeaching their verdict under the principle that

“no one should be allowed to allege his own turpitude.”

24

Texas initially followed Lord Mansfield’s rule strictly, but the Legislature adopted

25

an exception to the common law juror-incompetency rule in 1905 that eventually resulted in

“a far wider scope of inquiry into the jury’s deliberation than any other state.” As a result,

26

 Evans, 202 S.W.3d at 163. 22

See 8 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2352, at 696 23

(McNaughton rev. 1961)(collecting cases showing that, under earlycommon law, the “unquestioned

practice” had been to receive juror testimony of misconduct to invalidate the verdict). 

Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785) (rejecting juror affidavits that a decision 24

had been reached by chance because “[t]he Court cannot receive such an affidavit from any of the

jurymen themselves”). 

See St. Louis S.W. Ry. Co. v. Ricketts, 70 S.W. 315, 317 (Tex. 1902) (stating that the Court 25

has “uniformly denied the competency” of juror affidavits or testimony to attack the jury’s verdict

based on claims of “irregularities and improprieties of different kinds”).

See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 367–68 (Tex. 2000) (citation 26

omitted) (discussing the history of Rule 606(b) of the Texas Rules of Evidence); see generally David

E. Keltner, Jury Misconduct in Texas: Trying the Trier of Fact, 34 Sw. L.J. 1131 (1981) (discussing
Colyer Page 9

jury verdicts were frequently attacked by disgruntled jurors and reversed for “trivial

misconduct.” The Texas Supreme Court took action in 1983 by adopting Texas Rule of

27

Civil Evidence 606(b), which, except for two narrow exceptions, prohibits post-verdict

28

juror testimony to impeach a verdict. Thus, a juror is not permitted to testify about any

29

events or statements occurring during jury deliberations, any of the jurors’ mental processes,

or how an improper outside influence actually affected the jurors.

30

the evolution and application of the pre-1983 Texas rule).

1 MCCORMICK & RAY, TEXAS LAW OF EVIDENCE § 394, at 331-32 (2d ed. 1956). 27

The original Civil Rule 606(b) is, for all purposes relevant to this case, indistinguishable 28

from the current Rule 606(b), which applies in both civil and criminal trials. Rule 606(b) states:

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.

TEX. R. EVID. 606(b) (emphasis added). Texas Rule 606(b) differs from its federal counterpart

because it does not include the exception that allows a juror to testify “whether extraneous

prejudicial information was improperly brought to the jury’s attention.” FED. R. EVID. 606(b).

Golden Eagle, 24 S.W.3d. at 367–68.

29

See Robinson Elec. Sup. Co. v. Cadillac Cable Corp., 706 S.W.2d 130, 132 (Tex. 30

App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (noting the change from prior law, which

permitted a juror to testify to matters, statements, and overt acts occurring during deliberations and

which insulated only the mental processes of jurors); see generally, 3 CHRISTOPHER B.MUELLER &

LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 247 at 51 (2d ed. 1994) (Rule 606(b) “bars any

testimony or statement by a juror (whether proved by affidavit or in any other way) offered to prove

virtually anything about deliberations—any matter occurring or statement made, or the effect of

anything on the mind or emotions of any juror, or the mental processes of the juror whose testimony

or statement is offered.”).
Colyer Page 10

The purpose of Rule 606(b) is to limit “the role jurors may play in attacking the

validity of a verdict.” This limitation serves four important policy interests: It encourages

31

jurors to candidly discuss the case, protects jurors from post-trial harassment, promotes

32 33

finality, and prevents tampering and fraud. In sum, Rule 606(b) protects a good system

34 35

that cannot be made perfect. As Judge Learned Hand cautioned, without Rule 606(b),

36

judges would become like mythological “Penelopes, forever engaged in unraveling the

37

webs they wove.” To this day, courts try to maintain the balance between the goal of “a

38

trial by a jury free from bias or misconduct” and the need to prevent losing parties from

1 STEVEN GOODE ET AL., TEXAS PRACTICE SERIES: GUIDE TO THE TEXAS RULES OF

31

EVIDENCE, § 606.2, 672 (3d ed. 2002). 

 Golden Eagle, 24 S.W.3d. at 367. 32

Id. 33

Id. 34

See United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976) (the purpose of the rule 35

is to prevent “fraud by individual jurors who could remain silent during deliberations and later assert

that they were influenced by improper considerations.”). 

See Tanner v. United States, 483 U.S. 107, 120 (1987) (“There is little doubt that 36

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.”). 

As a ploy to delay remarriage, Penelope, the wife of Odysseus, pretended to weave a linen 37

shroud. She was always weaving but the shroud was never finished because every night she

unraveled her weaving.

 Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947). 38
Colyer Page 11

trying the jury. But, as a general proposition, Rule 606(b) and cases from the United States

39

Supreme Court and the Texas Supreme Court have struck the balance in favor of the privacy

of juror deliberations.

40

The most common, but disallowed, means to impeach the jury’s verdict is the

“disgruntled juror.” As commentators have noted, “[a] juror who reluctantly joined a verdict

is likely to be sympathetic to overtures by the loser, and persuadable to the view that his own

consent rested on false or impermissible considerations[.]” Allowing such jurors to

41

impeach their former verdicts would give the losing party much to gain and little to lose in

harassing all of the former jurors in a search for a “disgruntled” one. Rule 606(b) flatly

prohibits “disgruntled juror” evidence either by affidavit or testimony.

However, Rule 606(b) is not a blanket rule prohibiting all juror testimony. The most

important exception to the juror-incompetency rule is that of “an outside influence” that is

“improperly brought to bear” upon a juror. The purpose of this exception is to allow proof

of external pressures that are likely to affect the verdict. Although not explicitly defined

42

See Golden Eagle, 24 S.W.3d. at 367–68 (discussing the history of Rule 606(b) of the 39

Texas Rules of Evidence).

See Tanner, 483 U.S. at 120; Golden Eagle, 24 S.W.3d. at 367; See also FED. R. EVID.

40

606(b) advisory committee’s note 1972 (“the Rule offers an accommodation between these

competing considerations.”).

 3 MUELLER & KIRKPATRICK, supra note 30, § 247, at 57. 41

See id. § 250, at 77 (noting that “blatant efforts by outsiders to interfere with deliberations” 42

are rare; “[f]ar more common are contacts with outsiders that seem ambiguous and are plainly not

part of a plot to determine outcome.”).
Colyer Page 12

in Rule 606(b), this Court explained in McQuarrie that an “outside influence” is “something

originating from a source outside of the jury room and other than from the jurors

themselves.”

43

Therefore, a Rule 606(b) inquiry is limited to that which occurs both outside of the

jury room and outside of the jurors’ personal knowledge and experience. External events

44

or information, unrelated to the trial, which happen to cause jurors to feel personal pressure

to hasten (or end) deliberations are not “outside influences” because those pressures are

caused by a juror’s personal and emotional reaction to information that is irrelevant to the

trial issues. Those kinds of internal personal pressures are normal and may be expected in

45

any trial. Furthermore, they are not “improperly brought to bear” upon the juror in a manner

designed or likely to influence deliberations. For example, hearing a radio weather report

46

 McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012) (emphasis added). 43

Id. (“The internet research occurred outside of the jury room and outside deliberations. .

44

. [and the information] originated from a source on the internet, a source other than the juror

themselves.”).

See 3 MUELLER & KIRKPATRICK, supra note 30, § 250, at 80 (“[M]any external contacts 45

are viewed as harmless and do not require a new trial even if they occur when the jury is sequestered

during deliberations, and in most cases more than the contact alone must be shown to secure a new

trial.”).

See United States v. Branco, 516 F.2d 816, 819 (2nd Cir. 1975) (“Where an unauthorized 46

private communication, contact, or tampering with a juror during a trial does not relate to a matter

pending before the jury, there is no right to a new trial absent a showing of prejudice by the

defendant.”); Drone v. State, 906 S.W.2d 608, 617 (Tex. App.—Austin 1995, pet. ref’d) (although

juror had unauthorized discussions with a potential witness during the trial, there was no showing

that the two discussed trial facts or issues, therefore defendant was not entitled to new trial based on

juror misconduct).
Colyer Page 13

of an approaching storm may influence a juror to quicken his deliberations, but that weather

report is not (1) an “outside influence” or (2) improperly brought to bear upon the juror. The

juror himself decided to hasten deliberations, based on information that had nothing to do

with the trial itself or with its legal or factual issues.

Typical situations in which juror testimony is allowed as an “outside influence” under

Federal Rule 606(b) are threats, bribes, communications with court personnel, and assaults

upon a jury member. Correspondingly, “outside influence” has been interpreted by Texas

47

courts to include factual or legal information conveyed to the jurors by a bailiff or some other

unauthorized person who intends to affect the deliberations. But the outside influence

48

exception does not include influences such as coercion by a fellow juror or the discussion

49

of a juror’s own personal knowledge. Except for (1) an “outside influence” as defined in

50

McQuarrie that is (2) “improperly brought to bear” upon a juror, Rule 606(b) continues to

prohibit juror testimony to impeach a verdict.

1 GOODE, supra note 31, § 606.4, at 683; 3 MUELLER & KIRKPATRICK, supra note 30, §

47

250, at 77–79.

Soliz v. State, 779 S.W.2d 929, 932 (Tex. App.–Corpus Christi 1989, no pet.) (“To 48

constitute ‘outside influence,’ the source of the information must be one who is outside the jury, i.e.,

a non-juror, who introduces the information to affect the jury's verdict.”) (emphasis added).

Mitchell v. S. Pac. Transp. Co., 955 S.W.2d 300, 322 (Tex. App.—San Antonio 1997, no 49

writ), overruled on other grounds by Golden Eagle Archery, Inc., v. Jackson, 24 S.W.3d. 362 (Tex.

2000).

 Id. at 322; Soliz, 779 S.W.2d at 932. 50
Colyer Page 14

III.

A. Credibility of Testimony

In its first ground for review, the State argues that the court of appeals should not have

accepted Mr. Aguilera’s post-trial testimony at face value, thereby substituting its own

credibility determination for the trial judge’s. Appellant argues that no evidence

51

contradicted Mr. Aguilera’s testimony, and therefore the court of appeals did not have to

accept the trial judge’s decision to disbelieve the testimony.

However, the trial judge was entitled to discredit Mr. Aguilera’s post-trial testimony,

even if it had been wholly uncontradicted. In fact, Mr. Aguilera’s post-trial testimony that

52

his desired verdict had been “not guilty” was inconsistent with his trial-time statement that

the guilty verdict was “unanimous.” The policy of upholding the finality of verdicts was

53

served in this case by polling the jury. At that time, Mr. Aguilera said that he agreed with

the guilty verdict. After the jurors were excused, the time for post-verdict doubts had

Colyer, 395 S.W.3d at 282 (“Aguilera’s testimony established without dispute that an 51

outside influence caused him to vote differently than he otherwise would have.”) (emphasis added).

Quinn v. State, 958 S.W.2d 395, 401–02 (Tex. Crim. App. 1997) (trial court is sole judge 52

of witnesses’ credibility at a motion-for-new-trial hearing alleging juror misconduct); see also

Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005) (trial judge has discretion to

disbelieve testimony even when it is uncontroverted).

This change in position is similar to recantation cases in which a witness who testified 53

under oath at trial to certain facts later signs an affidavit or gives testimony contradicting or recanting

the original trial testimony. A trial judge is not required to believe the recantation testimony over

the original testimony. See Keeter v. State, 74 S.W.3d 31, 37-39 (Tex. Crim. App. 2002) (trial judge

did not abuse his discretion in denying motion for new trial based on disbelief of complainant’s posttrial recantation).
Colyer Page 15

passed. Given Mr. Aguilera’s shifting testimony, a reasonable fact finder could have

54

concluded that the juror had been somewhat reluctant at the time of the verdict, but it was not

until after weeks of reflection that he decided that he wanted to change his vote. This is

precisely the type of “disgruntled juror” who suffers buyer’s remorse that Rule 606(b)

prohibits from testifying to impeach his own verdict. A juror’s vote, when polled in open

55

court, is a “final sale” item; it cannot be exchanged because that juror later has buyer’s

remorse. Therefore, the trial judge was not required to credit Mr. Aguilera’s post-trial

testimony and would not have abused his discretion by denying appellant’s motion for new

trial on that ground alone.

B. Outside Influence

Even if the trial judge fully credited Mr. Aguilera’s testimony, he had to then make

a Rule 606(b) analysis to determine if the juror’s personal desire to get home quickly would

See People v. Jacobson, 440 N.Y.S.2d 458, 462 (N.Y. Sup. Ct. 1981) (“The policy 54

underlying the finality of a verdict is reinforced by the practice of polling the jury after the foreman

states the verdict. When the verdict . . . was returned, the jury was formally polled, and everyone

declared his or her assent. This procedure provided each juror the opportunity to speak up and/or

dissent. The time for post-verdict doubts had passed.”) (citation omitted).

The Senate Report accompanying the 1974 Enactment of Federal Rule 606(b) observed

55

that the Rule would prevent “the harassment of formerjurors by losing parties as well as the possible

exploitation of disgruntled or otherwise badly-motivated ex jurors.” Senate Report No. 93–1277,

1974 U.S.C.C.A.N. 7051, quoted in the advisory committee notes for the 1974 Enactment of Federal

Rule 606(b). See State v. Watts, 907 A.2d 147, 152 (Me. 2006) (Rule 606(b) protects jurors in their

communication to fellow jurors made in the confidence of the jury room and prevents the

impeachment of jury verdicts by jurors who later have a change of heart; juror testified about his

“depression, insomnia, and the anxiety he felt following the outcome of the Presidential election-an

election that occurred more than five months prior to the trial. This is the very kind of attempt by

a disgruntled juror to set aside a verdict that Rule 606(b) is designed to prevent.”).
Colyer Page 16

qualify as an “outside influence” before considering that testimony to impeach the verdict.

56

We conclude that neither the juror’s receipt of a doctor’s call concerning his daughter nor his

personal desire to get home quickly qualified as an “outside influence.” Thus, under Rule

606(b), the trial judge was not permitted, much less required, to consider Mr. Aguilera’s

testimony to impeach his verdict.

Appellant argues that the stormy weather and a call from Mr. Aguilera’s doctor are

“outside influences” because that information came from outside the jury room. But

appellant’s use of the McQuarrie definition of “outside influence” takes the term outside of

its proper context and scope. An outside influence must come from outside the jury and its

deliberations, but not everything that comes from outside the jury room qualifies as an

outside influence for purposes of the rule. The “outside influence” exception in Rule 606(b)

does not include influences or information that are unrelated to the trial issues. Texas

57

Contrary to the court of appeals, we find that, because the State objected to all testimony 56

by Mr. Aguilera at the onset of the hearing, the evidence is not “uncontroverted.”

See Tanner v. United States, 483 U.S. 107, 122 (1987) (“[D]rugs or alcohol voluntarily 57

ingested by a juror seems no more an ‘outside influence’ than a virus, poorly prepared food, or a lack

of sleep”); see also United States v. Falsia, 724 F.2d 1339, 1343 n.10 (9th Cir. 1983) (“Juror

testimony is admissible only concerning facts bearing on extraneous influences on the deliberation,

in the sense of overt acts of jury tampering.”) (quoting United States v. Pimentel, 654 F.2d 538, 542

(9th Cir. 1981)); United States v. Oshatz, 715 F. Supp. 74, 75 (S.D.N.Y. 1989) (juror testimony that

jurors hastened deliberations because “they either had vacations which were planned or had to get

back to work” did not meet the standard for jury misconduct); United States v. Marques, 600 F.2d

742, 747 (9th Cir. 1979) (“The sole alleged outside influence, then, was the judge’s decision to keep

the jury late a couple of nights. This was within the discretion of the trial judge and was entirely

proper.”); United States v. Kohne, 358 F. Supp. 1046, 1051 (W.D. Pa. 1973) (“[If the juror] agreed

to verdicts because he was concerned about his erratic oil heater, or his dogs and cat, or the conduct

or statements of other jurors, and was anxious to get home, such would be insufficient to impeach

the verdicts.”).
Colyer Page 17

cases have concluded that allowing normal personal pressures to qualify as “outside

58

influences” would jeopardize the finality of virtually every verdict. Under appellant’s

59

interpretation, a juror who has second thoughts about his vote could retroactively claim that

a personal pressure, such as his job, marriage, or children, made him apprehensive and eager

to conclude the deliberations. Rule 606(b) explicitly prohibits post-verdict testimony about

a juror’s mental processes to impeach the verdict. Most jurors feel some type of normal

60

internal, individual pressures throughout the entire trial. For instance, the first day of trial,

Mr. Aguilera informed the court that he was anxious to leave on time so that he could attend

Although only Texas civil cases have addressed this Rule 606(b) issue, application of that 58

rule should apply equally in both criminal and civil cases, as the language of the rule is the same for

both. See McQuarrie v. State, 380 S.W.3d 145, 167 n.31 (Tex. Crim. App. 2012) (Cochran, J.,

dissenting) (noting that courts in criminal cases should “look to civil cases for guidance on what

constitutes an ‘outside influence’”) (quoting In re S.P., 9 S.W.3d 304, 308–09 (Tex. App.—San

Antonio 1999, no pet.)).

See Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359 S.W.3d 318, 325 (Tex. 59

App.—Corpus Christi 2012, pet. denied) (“Personal pressures felt by jurors to wrap up the

deliberations do not constitute outside influences.”); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281

(Tex. App.—Houston [1st Dist.] 1991, writ denied) (holding that a juror “coerc[ing] jury members

into quicklyreachinga verdict” because of his family’s vacation planswas not an “outside influence”);

Kirby Forest Indus., Inc. v. Kirkland, 772 S.W.2d 226, 234 (Tex. App.—Houston [14th Dist.] 1989,

writ denied) (“There are always pressures not only from employers but also family, recreation and

personal preferences of jurors. We do not consider these normal pressures to be an outside influence

within the meaning of the rules. Were they to be considered an outside influence, few verdicts

would stand.”).

TEX.R. EVID. 606(b) (“[A] juror may not testify . . . to the effect of anything on the juror’s 60

mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the

verdict[.]”); see United States v. Farmer, 717 F.3d 559, 564 (7th Cir. 2013) (“Rule 606(b)(1) bars

juror testimony on, and court consideration of, the jury’s internal deliberations, including the jurors’

discussions and mental processes. The rule also prohibits the court from ‘receiv[ing] a juror’s

affidavit or evidence of a juror’s statements on these matters.’ To preserve the privacy and

independence of juries from well-intentioned efforts to perfect them, such evidence is simply not

admissible.”).
Colyer Page 18

his daughter’s graduation. Although his daughter’s graduation occurred outside the

61

courtroom, it does not constitute an “outside influence” under Rule 606(b).

Similarly, a radio report about a gathering storm and a telephone call from a doctor,

though coming from outside the jury room and from a non-jury source, are not “outside

influences” because they are not related to the trial in any manner. For example, in

McQuarrie, the “outside influence” was a juror’s out-of-court internet research concerning

the effects of a “date rape” drug that was at issue in the criminal trial. In this case, neither

62

stormy weather nor a doctor’s call concerning a medical condition were factual or legal

issues relevant to appellant’s DWI trial.

63

 The first day of the trial Mr. Aguilera stated: 61

I definitely want to make sure we get a good and complete hearing with no rush. It’s

just I was not anticipating being here past 5:15. It’s my daughter’s graduation, stuff

that’s going on, and I have to be there and it’s very important for us—for me to be

there by minimum of 5:30. . . . If the court requires me to stay of course. With no

disrespect I will stay. I would just want to voice my opinion, and I think there’s a

couple other jurors here that have issues this afternoon that we need to get to.

McQuarrie, 380 S.W.3d at 148. 62

But suppose that the doctor and Mr. Aguilera started talking about the DWI trial and the 63

defendant, and the doctor suddenly exclaimed, “Oh, I’m treating Mr. Colyer for alcoholism! He’s

just not progressing well.” Now the contents of that phone call would constitute an “outside

influence” because it was information that came from outside the jury room and from a non-juror

and concerns a factual or legal issue in the trial. Mr. Aguilera would be permitted to testify to that

conversation had it occurred. However, he would not be permitted to testify to how that

conversation actually influenced him or his verdict because Rule 606(b) bars any testimony about

the juror’s mental processes. “Whether the jury relied on improper evidence or instructions is not

a question to be asked jurors, but ‘is determined . . . on the basis of the nature of the matter and its

probable effect on a hypothetical average jury.’” United States v. Ianniello, 866 F.2d 540, 544 (2d

Cir. 1989) (citation omitted). If the “hypothetical average jury” would be led astray by the doctor’s

statement and its verdict affected, then the defendant would be entitled to a new trial. Id.
Colyer Page 19

Second, the outside influence must be “improperly brought to bear” with an intent to

influence the juror. For example, in McQuarrie, the juror who researched “date rape” drugs

64

told other jurors about her finding in an effort to affect the verdict. Here, of course, there

65

is no suggestion that the doctor’s call or the weather forecast was intended to influence the

verdict. The Advisory Committee’s notes and legislative history for Federal Rule 606(b)

both use a purposeful threat made by someone against the safety of a member of the juror’s

family as an example of an outside influence. In contrast, the commentary from the

66

American Bar Association’s standards for impeachment of the verdict specify that testimony

from a juror “induced to agree with the verdict because his wife was ill and he was anxious

to get home” would be inadmissable.

67

The outside pressures in this case are neutral; they were not intended to persuade a

juror to decide this case in any particular manner even if they might have influenced the jury

to reach a verdict more quickly. An “outside influence” is problematic only if it has the

68

TEX.R. EVID. 606(b). 64

 380 S.W.3d at 148. 65

FED. R. EVID. 606 advisory committee’s note 1974; H.R.Rep. No. 650, 93d Cong., 2d

66

Sess. 9 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 7075, 7083.

THE AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL

67

JUSTICE, APPROVED DRAFT 1968, TRIAL BY JURY § 5.7(a), at 171.

See Seaton v. State, 385 S.W.3d 85, 92 (Tex. App.—San Antonio 2012, pet. 68

ref’d)(“Neutral statements from the bailiff not directed to the jury’s specific deliberations or verdict

do not constitute an outside influence”); Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 661

(Tex. App.—Dallas 2002, pet. denied) (“[T]he bailiff informing the jury of the court’s schedule was

not misconduct” because it was neutral information).
Colyer Page 20

effect of improperly affecting a juror’s verdict in a particular manner—for or against a

particular party. Therefore there was no “outside influence” improperly brought to bear upon

Mr. Aguilera when he received a call from his doctor during deliberations or when he

listened to the weather report.

Third, even if Mr. Aguilera had testified to an improper “outside influence” under

Rule 606(b) he would still be prohibited from testifying about the effect of that information

on him. Courts use the objective “reasonable person” test to decide what effect the particular

“outside influence” in a case would have on the hypothetical average juror. We do not

69

allow testimony about the effect had upon this particular juror. Therefore Mr. Aguilera’s

70

McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012) (we undertake an 69

“objective analysis to determine whetherthere is a reasonable possibility that [the outside influence]

had a prejudicial effect on the ‘hypothetical average juror.’”); United States v. Boylan, 898 F.2d 230,

259–60 (1st Cir. 1990) (inquiry about extraneous influence does not extend to its subjective effect

on minds of jurors); United States v. Ianniello, 866 F.2d 540, 544 (2d Cir. 1989) (under Fed. R. Evid.

606(b), the trial judge “should not allow inquiries into the mental impressions of the jurors. Whether

the jury relied on improper evidence or instructions is not a question to be asked jurors. . . . If the

‘hypothetical average jury’ would have been coerced or led astray by improper ex parte statements

of the judge or marshal, then a new trial will be necessary.”); United States v. Howard, 506 F.2d 865,

869 (5th Cir. 1975) (stating that a court lacking “even the insight of a psychiatrist” must

independently evaluate “the subjective effects of objective facts without benefit of couch-interview

introspections” and without testimony from the jurors on how, if at all, the improper “outside

influence” would have affected a hypothetical jury). See generally, 3 MUELLER & KIRKPATRICK,

supra note 30, § 254 at 96–97 (“Juror affidavits or testimony can show only overt acts and who

learned or knew or participated. Whether prejudice resulted from outside influences must be

resolved by drawing inferences[.]”).

See Mattox v. United States, 146 U.S. 140, 148 (1892) (“‘Public policyforbids that a matter 70

resting in the personal consciousness of one juror should be received to overthrow the verdict,

because, being personal it is not accessible to other testimony; it gives to the secret thought of one

the power to disturb the expressed conclusions of twelve[.]’”) (quoting Justice Brewer in Perry v.

Bailey, 12 Kan. 539, 545 (1874)).
Colyer Page 21

testimony about the personal pressure he felt to end deliberations is inadmissable even if

either the phone call or the inclement weather had qualified as an “outside influence.” In this

case, the trial judge would not have abused his discretion in concluding that the “average

hypothetical juror” would not be improperly influenced to return a guilty verdict instead of

a not-guilty verdict because of radio reports of inclement weather or a doctor’s telephone call

concerning a child’s illness.

In sum, because Mr. Aguilera’s testimony about the weather and his child was

unrelated to any factual or legal issue at trial, those matters did not qualify as an improper

outside influence; therefore, the trial judge correctly refused to consider Mr. Aguilera’s

testimony or affidavit because both were inadmissable under Rule 606(b). The experienced

trial judge did not abuse his discretion in denying appellant’s motion for new trial based on

juror misconduct. Therefore, we reverse the judgment of the court of appeals and affirm the

judgment of the trial judge.

Delivered: April 30, 2014

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