### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00265- CR

Jose De LaLu z P ere z, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 09- 587- K2 77, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found J ose DeL aL u z Perez g uilty of possession of less than one g ram of

coca ine. Ba sed on his plea of true, the jury foun d t h at P er ez had two prior convictions for drug

rela ted offe nses. The jury assessed s en t en ce at five y ear s in prison. On appea l, Perez contends that the court err ed by deny ing him a new trial beca use the jury rec eived new evidenc e afte r retiring
to delibera

te. He also arg ues that the jury ’s rec eipt of the new evidenc e created an unrebutted presumption that the new evidenc e harmed hi m and that the court err ed by not requiring the S tate
to rebut that presumption to prese rve the judgme nt. Perez also contends that the evidenc e is leg ally insufficient to support the judg ment. We will affirm the judg ment.

Finding that his wife had locked him out of their home, Perez rang the doorbell and 1 knocked so insistently

that he dama g ed the door. Police responding to her 911 c all arr ested Pere z

The couple wer e marrie d and divorce d, but now live toge ther. She testified t h at s h e 1 considers Per ez her c ommon-law husband.and patted him down at the s cene , but found no contra band or wea

pons. During a more thoroug h

sear ch at the jail, a bag g y containing less than a g ram of coca ine was discovere d on the floor near Perez when his pocke ts were emptied.

A jury found Perez g uilty of possession of a con t rol led substance. When the jury beg an considering punishment, the presiding juror notified the trial judge that, during delibera tions

on g ui l t / i n n o ce n ce, one of the jurors had used a g lobal positioni ng sy stem (GPS) persona l digital assistant (PDA) to deter

mine whether Perez’s home was located in Wil liamson County

. The trial court inquire d of ea ch juror w hether the m ap information influence d the verdict. Every juror testified that there was no controve rsy reg arding the location and that the map information had

no eff ect on their verdic t. Even the juror who used the PDA beca use his conce rn about whether the orig inal alterc ation occur red in Wil liamson C o u n t y wa s “gnaw ing” on him testified that the map information made no dif

fe re n ce i n his verdic t. Many jurors ag ree d that the jury had deter mined 2

ear ly in delibera tions that the crime occur red in Wil liamson County and that the juror looked at his PDA afte r that dete rmination was made . The trial c ourt denied Per ez’s motion for mistrial.

Perez’s first two is sues concern the eff ect of the j ury ’s receipt of the new evidenc e
reg arding the location of the crime fro m t h e juror’s PDA. Perez contends that the jury ’s rec eipt of that evidenc e require s that he rec eive a new trial. The rules of appel l at e p ro ce d u re provide in rele vant part that “[t] he defe ndant must be g rante d a new trial, or a new trial on punishment, for any of the following rea sons: . . . . (f) when, afte r retiring to delibera te, the jury has rec eived other

Perez notes that another juror stated that he could not sleep afte r seeing the PDA use. The 2 context of that statement makes plain that his slee plessness was due to the unauthorized use of the PDA, not whether

the jury had cor rec tly decide d that the offe nse occ urre d in Wi lliamson Count y . 2evidenc e; when a juror has talked with a ny one about the case ; . . . .” Tex. R. App. P. 21.3( f). The court of crimin al ap peals has held t hat a juror’s conversa tion about t he case with an unauthoriz ed
person cre ates a presumption of harm that the State may rebut. See Quinn v. State , 958 S.W .2d 395,
401 (Tex. Crim. App. 1997). Perez further contends that the t rial court er re d by not requiring the
State to rebut the presumption, but instead questioning the juro rs and deny ing Perez’s motion for mistrial base d on the re sults of tha t e x amination. Perez asser ts that the trial court a ssumed the
S tate’s burden t o rebut by questioning the jurors. He contends that the court there by bre ac h ed i t s obliga tion to rema in neutra l, citing Texas Code of J udicial Conduct Canon 2A which provides in part that “[a] judge shall comply with the law and should act at all times in a manner that promotes public confide nce in the integ rity and impartiality of the judiciary .” He arg ues that, by questioning the jurors, the tria l court advoc ated f or the State a

nd violated constitutional fair trial g uara ntees. Although Perez’s motion for new trial did not itself prese rve issues surrounding jury misconduct for revie w, we will consider whether his motion for mistrial entitled him to a new trial.
I n his motion for new trial, Perez reque sted a new trial “in the interest of justice.” He did not explain that g round further or sug g est another basis for a new trial. As the State points out, that motion did
not inform the trial court of the gro u n d s t h at Perez raises on appea l. The g rounds raised here are
not a clear, logica l extension of t he assertion of t he int ere sts of j us t i ce . T h e m otion for new t rial, there fore , did not prese rv e t h e err or prese nted on appea l. See Tex. R. App. P. 33.1(a) (1)( A) (to
prese rve err or, motion must state the g rounds for relief “with suffi ci en t s p ecif icity to make the trial court awa

re of the complaint”). A par ty may , howeve r, prese rve an issue of juror misconduct for a ppellate r eview w ith a timely motion for mistrial. See Castil lo v

. State , 319 S.W .3d 966, 970 (Tex. App.—Austin 2010, pet. denied). A p o s t -v erdic t g rant of a motion for mistrial entitles a
3defe ndant to a new tr i al

. See State v. Boyd , 202 S.W .3d 393, 401 (Tex. App.—Dallas 2006,

pet. ref’d). Perez’s m otion for mistrial—made af ter the g uilty

verdic t was re ache d and as the jury

near ed the end of its punishment delibera tions—presented t o t h e trial court and prese rved for appellate revie w the issue of whether the j u ro r’s obtaining and sharing map information entitled
Perez to a newtrial.

The rules of appellate proce dure define reve rsible err or in criminal case s as follows:
(a) Constit utional Error

. I f the appellate rec ord in a cr i minal case reve als constitutional err or that is subject to harmless err or revie w, the court of appea ls must reve rse a judgme nt of conviction or punishment unless the court deter mines bey ond a rea sonable doubt that the err or did not contribute to the conviction or punishment. (b) Other Error s. Any other err or, defe ct, irreg ularity , or varia nce that does not aff

ect substantial rig hts must be disreg arde d. (c) Presumptions. Unless t he following m atters were disputed in the t rial court, or unless the rec ord aff

irmativel y s h o ws the contra ry , the court of appea ls must presume: (1) that ve nue wa s proved in the tria l court; (2) that the jur

y was prope rly

impaneled a

nd sworn; (3) that the de fenda

nt was ar raig ned; (4 ) that the defe ndant pleade d to the indictment or other char gi n g instrument; and (5) that the court’s char g e was cer tified by the trial cou rt and filed by the cler k befor e it was re ad to the jury

Tex. R. App. P. 44.2. We revie w the trial court’s denial of a motion for mistrial for an abuse of discretion. Ocon v. State , 284 S.W .3d 880, 884 (Tex. Crim. App. 2009). We view the evidenc e in the l ight most favor able t o t h e t ri al court’s ruling, considering only those arg uments befor e the
court at the time of the ruling

. Id. We must uphold the ruling if it was within the zone of rea sonable disag ree ment. Id

.
4We c onclude first that the trial court did not err by conducting its own examination

of t he jurors. Perez contends that the t rial court wrong fully assumed the St ate’ s burden to rebut a presumption of harm from juror misconduct. The court of criminal appea ls has expressly held that

a trial court may question jurors when an alleg ation of juror misconduct has been made. See Norman

v. State , 588 S

. W .2d 340, 347 (Tex. Crim. App. 1979). I n that case , the trial court questioned four j u rors about alleg ations that they spoke with an outsider about the case in violation of the court’s instruc tions. Id. The c ourt of cr iminal appeals he ld as follows:

Since the court believed its own instructions had been v i o l at ed, it was perf ectly proper for the court itself to make inquiries into possible j u ry m i s conduct. Deter minations as t o jury misbehavior are up to the discretion of the court. We do not find the questioning prejudicia l to the defe ndant. The very basis of the question was dire cted towa

rd obtaining a fa ir and impartial tria l.

Id. (citations omitted). I n this case, the tr ial court instructe d the jury as follows:
[T] hat it is only from the witness stand that the jury is permitted to rec eive evidenc e reg arding the case , or any witness there in. No juror is permitted to communicate to any other juror any

thing he may have hear d reg arding the case or any witness there in from any source other than the witness stand.
By alleg ing that the juror obtained information about the location from the PDA, a source other than the wit ness s tand, P ere z alleg ed a v iolation of t he court’s instructions. The court’s i nquiry in this

case was permissible as set out by the court of criminal appea ls in Norman

. See id. The trial court’s questioning of the jury appea rs to have been direc ted to ensure that Perez rec ei v ed a fair and impartial trial. Id.

5We also reje ct Perez’s asser tion that the trial court’s questioning of the jurors demonstrated partiality

. Perez asser ts that the trial court improperly assumed the State’s burden of rebutting a presumption of harm from the juror’s actions. The rebuttable presumption of harm Perez cites, howeve r, arises when a juror has talked to an unauthorized person. See id. ; see also Tex. Code Crim. Proc. Ann

. ar t

. 3 6.22 (West 2006) (“N o person shall be permitted to conver se with a juror about t h e ca s e o n trial except in the prese nce and by the permission of the court.” ) There is no evidenc e or alleg ati o n that any juror in this case had a conver sation with an unauthorized person. Perez cites no authority for the proposition that obtaining location information from a PDA’s map
g ives rise to the same presumption of harm as a co n v er s ati on with an unauthorized person about the case on trial. The State did not have the burden to rebut a presu m p t i o n t h at d id not arise, the trial court did not wrong fully assume a burd en t h at d i d n o t exis t, and the trial court did not show partiality by inquiring to asce rtain the exis tence and scope of any misconduct. Although a trial judge hy pothetically could exhibi t bias when questioning jurors or witnesses even on permissible subjects,

no bias is appare nt or alleg ed in this trial court’s manner of questioning of the j urors. We find no ethical brea ch, violation of proce dural statute or rule, or err or of nonconstitutional or constitutional
mag nitude. The trial court did not abuse its discretion or violate case law by conduc t i n g i ts own examination of the jurors and by not requiring the State to rebut a presumption of har

m. We conc l u d e t h at Perez has not shown that the trial court abused its discretion by deny ing his motion for mis trial. When interpret i n g a st atutory prede cessor to rule of appellate
proce dure 21.3(f) , the court of criminal appea ls held that, in order to mandate a new trial, the

rec ord must show that “(1) ‘other testimony ’ or ‘other evidenc e’ was actua lly rec eived by the jury , and (2) that such evidenc e was detrimental to the appellant.” Garza v. State , 630 S.W .2d 272, 274

6(Tex. Crim. App. 1981). “The controlling fac tor in deciding whether a new trial is require d is the char acte r of the evidenc e, in light of the issues befor e the jury , n o t the eff ect of such evidenc e on the jurors.” Id

. We can consider the eff ect of the other evidenc e only if it contains a misstatement of parole laws—an issue not prese nt in this case . See id. The map information showed what county contained the addre ss where the original arrest occurre d and thus at m ost bears on ve nue. “While it must be established, venue is not a ‘cr iminative fac t’ and thus not an esse n t i al el em en t of the offe nse.” Boyle v. State , 820 S.W .2d 122, 140 (Tex. Crim. App. 1989). Venue need only be proved by a preponde ranc e of the evidenc e. Tex. Code Crim. Proc. Ann. art. 13.17; see also id. 13.18. We
note that Perez did not challeng e venue below or on appea l, which g ives rise t o a presumption that venue was proper . See Tex. R. App. P. 44.2(c) (1). The indictment in th i s case alleg ed that
Perez possessed coca ine in Wil liamson County

. I t is undisputed that the coca ine was not discovere d when Perez was arr ested at his home, which was the addre ss the juror looked up on his PDA. I f one believes the State’s witnesses’ version of events—a s the jury plainly did—Perez was discovere d to
possess the coca ine at the Wil liamson County J ail. There is no evidenc e that the Wil liamson County
J ai l i s an y

wh ere other than Wil liamson County , Texas. Perez does not contend on appea l that 3
his arr est or his being booked at Wil liamson County J ail was improper or any wher e other than Wil liamson County

. Venue for t h e p o ssession char g e was established in Wil liamson County without reg ard to wher e Perez was arr ested or the PDA information. We note further that the map information was objective inf o rm ati on that is not alleg ed to have and does not have any appar ent

To the extent nece ssary , we take judicial notice of the fac t that the Wil liamson County J ail 3 i s i n W illiamson County , Texas. See Tex. R. Evid. 201; Volosen v. State , 227 S.W

. 3 d 7 7 , 8 1 (Tex. Crim. App. 2007). 7tang ential effec ts that might influence the jury to convict on g rounds i n d ependent of t he elements

o f t h e crime, such as evidenc e that Perez had committed other crimes or had bad char ac t er . W e conclude that the PDA map information was not detrimental to Per ez be cause it did not bear on an element of

the offe nse or on the non- criminative fa ct of ve nue. Comparing t h e fac ts befor e us to those in previous case s helps g uide our decision. This case is differ ent from case s in which the jurors lear n additional damag ing information about the defe ndant from outside source s. See Garza , 630 S.W .2d at 273. I n Garza , a drug possession case ,

a juror said that “somebody had hear d on the radio at noon while we wer e at lunch that he had a past

rec ord” (which another j uror test i fi ed included murder) , and others testified t hat j urors repea tedly

m enti oned Gar za’s rec ord when arg uing for conviction. Id. Other jurors repe atedly admonis h ed their fellow jurors not to consider his rec ord in delibera tions on g uilt. Id. Although jurors testified that Gar za’s alleg ed rec ord did not aff ect them when finding him g uilty , the court of criminal appea ls order ed a new trial beca

use statements outside the rec ord wer e injected into delibera tions that wer e detrimental to Gar za’s case . Id. at 275. I n this case , howeve r, the fac t “lea rned” from the PDA was
not a new fac t for the jury , was not reiter ated d u ri n g d eli bera tions, was not inflammatory and prejudicia l like asser

tions that the defe ndant has a criminal rec ord including a murder, an d was ultimately irrele vant beca

use venue was established throug h undisputed evidenc e. This case is more like the case in which so m e j u ro rs drove by the crime scene and discussed their impressions of it during delibera tions. See Flix v. State , 782 S.W .2d 1, 2-3 (Tex. App.—Houston [14t h Dist.] 1989, pet. ref ’d). The court of appea ls deter mined that the juror’s impressions of the crime scene wer e essentially redunda

nt o f t h e crime- scene photos introduced into evidenc e. Be cause the visit and impressions introduced nothing new i n t o t h e rec ord, the court decide d that they wer e not “other

8eviden ce ” an d did not proce ed to consider whether the evidence was detrimental to the appellant.

Id

. Simi larly , in this case , the map information did not inject any thing new into the rec ord and did

n o t c o ntradict the undisputed evidenc e that Perez possessed coca ine in Wil liamson County at the jai l.
We conclude that the trial court did not abuse its discretion by overr uling Perez’s motion for mistrial.
Perez next contends that insufficient evidenc e supports the verdic t of g uilt. We will 4
view the evidenc e in the light most favor able to the verdic t and deter mine whether the jury rationally could have found Perez g uilty bey ond a rea s o n able doubt. Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010); see also Jack son v. Virgi nia , 443 U.S. 307, 319 (1979). We defe r t o the jury ’s deter

minations on witness cre dibilit y and weig ht of evidenc e. B r ooks , 323 S.W .3d at 894; see also Jac kson , 443 U.S. at 319.

Wil liamson County Sheriff’ s Offic e Serg eant Aar on Howe testified that he sear ched
Perez as part of the intake proce dures at the Wil liamson County J ail. The sear ch included examining
Perez’s pants pocke ts. Howe testified, “ When I rea ched my hand into his left pocket and pulled it out, the bag g y

g razed the top of my hand and it f ell to the floor. As I

looked down, I

saw it lay ing

on the floor.” He said he did not see the bag g y when it emer g ed from the pocket but felt it, then saw the bag g y land on the floor. He descr ibed the bag g y as a corne r of a clea r plastic trash bag that had been torn, and testified that a white substance was clea rly visible ag ainst the blue tile floor. He slid the bagg y acr oss the floor to Georg etown Police Of fice r Shanna Shelly , consistent with a practice

Perez also challeng es t h e fac tual sufficie ncy of the evidenc e supporting the judgme nt. 4 After he submitt ed his brief, the court of criminal appea ls deter mined that the challeng e to the fac tual sufficie ncy of the evidenc e it previ o u sly rec og nized does not, in fac t, exis t separ ately from the leg al sufficie ncy challeng e. Brooks v. St a t e , 323 S.W .3d 893, 912 (Tex. Crim. App. 2010) (over ruling Clewis v. State , 922 S.W .2d 126 (Tex. Crim. App. 1996)). 9meant to limit the chanc es of inmates kicking office rs. Although he did not see Shelly pick up the

bag g y , it was not on the floor when he completed the patdown. Shelly testified that she had patted
Perez down at the scene of his arr est and had not found any controlled substances. She did not see the bag g y fall o u t o f P er ez ’s pocket, but noticed it on the floor when she looked up from the
paper work she was completing. She saw Howe “kick something asid e, an d i t wa s a sm all plastic b aggy .” She testified that she took the bag g y into custody and put it into evidenc e. T h e l ab technicia n testified that the bag g y

contained .07 g rams of c ocaine

. Perez contends that the evidenc e supporting the verdic t that he possessed coca ine is too slig ht. He notes that Shelly and other office rs had patted him down and not notice d the bag g y . Shelly testified that it was possible that he had nothing in his pockets. Perez notes that Shelly could
not re ca l l cer

tain aspec ts of the arr est. He cites a contra diction betwee n testimony from Howe and Shelly that no one came throug h the booking are a during the sear ch and audio from the booking

are a indicating that others wer e there when he was sear ched. Perez notes that Howe did not produce

a repor t, did not see the bag g y fall, and conce ded that contra band is often found in the intake are a 5

unconnec ted to a

ny body then prese nt. Perez stresses that Howe repe atedly rec alled Perez wea ring jean s , wh en o ther evidenc e shows that Perez was wea ring shorts. Perez finds incre dible Howe’ s claim t hat t he bagg y g razing his hand caused him to re m em ber searc hing Perez without ref ere nce
to a re port. The contra dictory evidenc e may cre ate an issue reg arding the office rs’ cre dibilit y , but does not compel a conclusion that the evidenc e is leg ally insufficient to support the verdic t. For

Howe te stified that his computer cr ashed a nd took the repor

t with it. 5 10instance, Perez’s arg ument that Howe could not without a repor t possibly reme mber sear ching Perez is counter ed by Howe’ s asser tion that the nature of the seizure—the only time Howe r emember ed discovering contra

band by having it g raze his hand—made it memorable

. Shelly t estified that

sear cher s befor e Howe might have missed the bag g y beca use it was so small. Other conflicts, such

as whether Perez wore jeans or shorts, do not conce rn elements of the offe nse but prese nt cre dibilit y i s s u es fo r t h e jury to resolve. The jury resolved the cre dibilit y issues in favor of conviction, and the rec ord does not permit us to conclude that their resolution was irrational. Viewing the evidenc e

as presc ribed by Jack

son , 443 U.S. at 319, we conclude that leg ally sufficie nt evidenc e supports the ver dict.

CONCLUSION

Having deter

mined that the trial court did not abuse its discretion b y d en y i ng the

m o t i o n s for mistrial or for new trial, that the trial court did not improperly ignor e or assume the
State’s burden to rebut a presumption that the jury ’s exposure to the PDA map information harme d him, and that leg ally

sufficie nt evidence supports the verdic t of g uilt, we aff irm the judg ment.

J eff Rose, J ustice
Be fore J ustices Pury ear , Pemberton and Rose
Affir med Filed: Aug ust 12, 2011 Do Not Publish

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