Reversed and Remanded and Majority and Dissenting Opinions filed August 

29, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00785-CR

ZAID ADNAN NAJAR, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 338th District Court 

Harris County, Texas 

Trial Court Cause No. 1503083 

DISSENTING OPINION 

I disagree with several aspects of the majority’s decision. 

I. The majority errs by not applying Rule 606(b) of the Texas Rules of 

Evidence. 

The majority correctly recognizes that, under Rule 21.3(f) of the Texas Rules 

of Appellate Procedure, the defendant must be granted a new trial “when, after 

retiring to deliberate, the jury has received other evidence.” But the majority fails to 
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appreciate that Rule 606(b) of the Texas Rules of Evidence limits the method in 

which a defendant can prove that he is entitled to a new trial under Rule 21.3(f). See 

Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.—Houston [14th Dist.] 2000, pet. 

ref’d) (“By generally prohibiting jurors from testifying as to matters and statements 

occurring during deliberations, rule 606(b) unquestionably makes proving jury 

misconduct in criminal trials more difficult than it was under prior rules.”). 

The majority contends that the State waived any complaint under Rule 

606(b)—and thus, the majority declines to conduct any sort of Rule 606(b) 

analysis—because the prosecutor affirmatively stated that she had “no objections” 

to the affidavits. But the record is ambiguous on that point. When the affidavits were 

offered into evidence, defense counsel acknowledged that “we have a dispute on the 

law.” The prosecutor then went on to argue that the siren discussed in the affidavits 

was not an “outside influence,” which invokes the language of Rule 606(b). The 

prosecutor also referred explicitly to McQuarrie v. State, 380 S.W.3d 145 (Tex. 

Crim. App. 2012), which is one of the leading cases applying Rule 606(b). The 

record accordingly shows that all parties understood that Rule 606(b) was squarely 

before the trial court. 

II. The majority errs by not considering the affidavits under the appropriate 

standard of review. 

Even if the prosecutor had not invoked Rule 606(b) and McQuarrie, or had 

waived a complaint under those authorities, the trial court was under no obligation 

to credit the affidavits’ hearsay testimony that the jury had been influenced by the 

hearing of a siren. And under the applicable standard of review, the majority should 

have held that the trial court did not believe that hearsay testimony. See Okonkwo v. 

State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013) (recognizing that a trial court 

can determine that an affidavit lacks credibility, even when the affidavit is 
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uncontroverted). By reaching the opposite conclusion that the siren influenced the 

jury to the detriment of appellant, the majority fails to view the evidence in the light 

most favorable to the trial court’s ruling. 

III. The majority errs by concluding that the sound of a siren is “other 

evidence” under Rule 21.3(f). 

The majority also errs by holding that the jury received “other evidence.” This 

is not a case where an exhibit was mistakenly sent to the deliberation room, like in 

Bustamante v. State, 106 S.W.3d 738 (Tex. Crim. App. 2003). Instead, this is a case 

where, if the affidavits are to be believed, the jury merely heard a siren coming from 

the street. There has been no showing that the siren was intentionally activated to 

influence the jury. And the sound of a siren is already within the common knowledge 

of the average juror, which is reason enough to uphold the trial court’s ruling that 

there was no outside influence (or receipt of other evidence detrimental to appellant). 

See McQuarrie, 380 S.W.3d at 153 (“A Rule 606(b) inquiry is limited to that which 

occurs outside of the jury room and outside of the juror’s personal knowledge and 

experience.”); cf. Diaz v. State, 660 S.W.2d 93, 94–95 (Tex. Crim. App. 1983) 

(recognizing that jurors are already aware that some inmates are released early on 

parole, and “the mere mention of this common knowledge would not constitute 

receipt of other evidence”); Ex parte Trafton, 271 S.W.2d 814, 816 (Tex. Crim. App. 

1953) (op. on reh’g) (same regarding the usual sounds of an automobile); Borroum 

v. State, 8 S.W.2d 153, 155–56 (Tex. Crim. App. 1927) (op. on reh’g) (same 

regarding the effect of being shot); Frazer v. State, 268 S.W. 164, 166 (Tex. Crim. 

App. 1924) (same regarding bullet holes and powder burns); Saenz v. State, 976 

S.W.2d 314, 321–23 (Tex. App.—Corpus Christi 1998, no pet.) (same regarding 

how spent shells are ejected from semi-automatic weapons). 
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Sirens are frequently heard in downtown Houston—so frequently in fact that 

the burden on the judicial system would be extreme if trial courts were required to 

insulate the jury whenever those external sounds might be related to an issue in a 

case. Part of that problem stems from the fact that the sirens originate not just from 

police, but also from fire and EMS. Whether these departments have similar or 

different sirens is not apparent from the record. In any event, there has been no 

showing that the siren heard by this jury necessarily belonged to a police unit, as the 

majority implicitly assumes. 

IV. The majority errs by concluding that the siren was detrimental. 

In a case implicating Rule 606(b), a court must use an objective “reasonable 

person” test to decide what effect the outside influence would have had on the 

“hypothetical average juror.” See Colyer v. State, 428 S.W.3d 117, 129 (Tex. Crim. 

App. 2014). This is the standard that the majority should have applied if it 

determined that the siren was an outside influence (which it was not). And under this 

objective standard, the majority should have held that there was no adverse effect 

because the sound of a siren is already within the common knowledge of the average 

juror. 

The majority nonetheless holds that the siren was detrimental because the 

central issue in the case was whether appellant was aware that the officer was trying 

to pull him over. But there was overwhelming evidence that appellant was so aware. 

The officer testified that when he activated his emergency lights and siren, appellant 

immediately deactivated his illegal strobe light and then sped off for more than a 

mile. That testimony, which was emphasized by the prosecutor in closing statements, 

shows that appellant knew that he needed to stop from the very beginning of the 

chase. 
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Also, there was no evidence that appellant could not hear the officer’s siren 

(say, for example, because appellant was hard of hearing, or because the music in 

his car was playing very loudly). During closing arguments, defense counsel had no 

response at all to the evidence that appellant had heard the officer’s siren. This 

omission undermines the majority’s conclusion that the jury’s hearing of a siren was 

detrimental to appellant’s case. 

Based on the foregoing, I would overrule appellant’s first issue and consider 

his remaining point of ineffective assistance of counsel. Because the majority does 

not, I respectfully dissent. 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Bourliot, and Spain.

Publish — Tex. R. App. P. 47.2(b).