Affirmed and Opinion filed January 7, 2020.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00932-CR

SANDRA JEAN MELGAR, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 178th District Court 

Harris County, Texas 

Trial Court Cause No. 1435566 

OPINION 

Appellant raises two issues in this appeal from her conviction for murder. In 

the first issue, she argues that she is entitled to an acquittal because the evidence is 

legally insufficient to support the conviction. And in the second issue, she argues 

that, even if the evidence were sufficient to support the conviction, she is entitled 

to a new trial because the jury engaged in misconduct by conducting experiments 

during deliberations. For reasons explained more fully below, we overrule both of 

these issues and affirm the trial court’s judgment. 
2

BACKGROUND 

The Discovery of the Body. The complainant in this case is Jaime Melgar, 

who was appellant’s husband of thirty-two years. At the time of his death, Jaime 

and appellant were empty-nesters, living in a suburban home with just four small 

dogs. 

Jaime had planned to host a holiday dinner for his brother and his brother’s 

family. When these relatives arrived at Jaime’s home on the scheduled date of the 

dinner, the front door was locked and no one was answering. Jaime’s brother 

checked the backdoor, but it was also locked and nothing could be heard from the 

inside. The brother then went to the attached two-car garage, where the garage 

door on the right-hand side had been left open. Inside the garage, the brother found 

a closed but unlocked door leading into the kitchen. The brother went through that 

interior door, unlocked the front door for his family, and then heard cries for help 

coming from within the home. 

The brother followed the cries to the en suite master bathroom, where he 

found a chair wedged under the handle of a closet door. The brother removed the 

chair, opened the closet, and found appellant lying on the floor. She was wearing a 

bathrobe, her ankles were bound, and her wrists were tied behind her back. The 

brother was unable to remove the ties with his bare hands, but at appellant’s 

direction, he retrieved scissors from the bathroom and cut through the bindings, 

which had been made from a scarf and other stretchy material. 

As the brother was freeing appellant, his family discovered Jaime in the 

closet of the master bedroom. His body was naked and cold. He had a knotted rope 

loosely wrapped around his chest, and telephone cords tied around his ankles. He 

was also covered in blood, with gash marks across his neck and torso. 
3

Police and EMS were dispatched to the scene, having been told that one 

person was dead and another person was injured following a home invasion or 

burglary. But when the first responders arrived, they did not encounter the 

traditional hallmarks of a home invasion or burglary. There were no signs of forced 

entry. All of the doors and windows were intact. Also, no personal property 

appeared to be missing. Valuables were untouched and in plain view, and dresser 

drawers were only slightly opened, their contents undisturbed. 

A deputy constable found appellant in the bathroom crying, but because she 

did not have any tears, the constable suspected that appellant may have been 

acting. When the constable asked appellant what had happened, appellant 

responded that the last thing she remembered was that she was taking a bath with 

Jaime and that Jaime had gotten out of the tub to check on the dogs because they 

were barking. Appellant added that she commonly has blackouts and seizures, and 

that she had no memory of the previous night. 

Appellant was examined by a paramedic at the scene, who found no injuries 

on appellant’s face, head, neck, or wrists. Appellant still complained of a bump on 

her head, but she declined to be transported to the hospital to receive additional 

medical attention. She agreed to go to police headquarters instead and to give a 

recorded statement to investigators. 

The Recorded Statement. Appellant told investigators that she and Jaime 

had gone out for dinner the night before to celebrate their anniversary, and that 

they had stopped at a store on their way home to pick up some drinks. Upon 

arriving home, they parked their car inside the garage on the left-hand side. 

According to appellant, the garage door on the right-hand side must have been 

closed, otherwise she would have noticed it. 
4

Appellant said that she went inside, started the Jacuzzi tub, and mixed some 

drinks for herself and Jaime. Then they got into the tub, where they stayed for a 

long time (some two hours, she estimated) talking about their daughter and their 

plans for the future. 

Appellant said that they heard their dogs barking outside at some point, and 

that Jaime got out of the tub to call the dogs back inside. Appellant claimed that 

she remained in the tub for the next fifteen minutes, and when Jaime failed to 

return, she went to her closet to put on some clothes and lotion. She said that she 

remembered nothing after that point until she woke up several hours later. 

Appellant believed that she must have had a seizure during a home invasion 

because she did not remember hearing any screams or struggles or sounds of any 

kind. She explained that she had been experiencing frequent seizures lately, at least 

once a month, with auras happening “all the time.” She claimed that her last 

seizure had occurred just a month earlier. 

The investigators were troubled by appellant’s demeanor. She was slow to 

answer their questions, and her answers tended to be evasive. She was covering her 

face and avoiding eye contact. And she was not displaying much emotion. Even 

when she sounded as though she were crying, she did not have any tears. 

The investigators told appellant point blank that her story was not adding up. 

They asked her to explain why she had bruising on both of her upper arms. 

Appellant offered several explanations. She said that she is always bruised because 

she suffers from a chronic illness and takes many medications. She also said that 

she falls sometimes and bruises easily. She added that Jaime was not a violent man 

and that he never abused her. She suggested that some of the bruising may have 

been caused earlier that night when she left the tub to use the toilet and Jaime 

grabbed her arm to prevent her from slipping. 
5

The investigators also asked appellant for her best understanding of how 

Jaime had died. Appellant said that Jaime did not have any known enemies, but she 

briefly offered some theories. She mentioned that Jaime had been driving slowly 

the night before and that he had likely angered a tailgater as they were heading 

home from the store. But appellant ultimately dismissed the tailgater as a possible 

suspect, saying that the tailgater had turned one way at an intersection, whereas she 

and Jaime had turned the opposite way. 

Appellant also mentioned that she and Jaime owned rental properties and 

that there was a history of conflict with one of their tenants. But appellant 

dismissed the tenant as a suspect too, saying that she did not believe that the tenant 

was responsible for Jaime’s death. 

Appellant denied that she killed Jaime. She believed that she had been hit 

over the head and tied up by a home invader, and she regretted that she had no 

memory of the incident whatsoever. 

The Prosecution’s Case. Appellant was ultimately charged with murder, and 

during her criminal trial, the prosecution theorized that she killed her husband and 

then staged the scene to resemble a home invasion gone wrong. This staging theory 

was based on the cumulative force of the circumstantial evidence, which we 

discuss in the following paragraphs. 

The medical examiner testified that Jaime had suffered more than fifty 

bodily injuries. Thirty-one of those injuries were caused by sharp forces (i.e., stabs 

and incisions). The rest were caused by blunt forces. Most of the injuries were 

concentrated on Jaime’s head, neck, torso, and upper extremities. Cuts on his 

hands were consistent with defensive wounds, which suggested to the medical 

examiner that, when he was attacked, Jaime had been alive and moving, not 

restrained. 
6

The medical examiner did not find any ligature marks or hemorrhages 

around Jaime’s ankles, where the telephone cords had been tied. The medical 

examiner explained that some sort of markings would be expected from the 

telephone cords if Jaime had still been alive and moving, especially considering 

that he was naked and the cords were directly in contact with his skin. But because 

there were no such injuries, the medical examiner opined that the telephone cords 

had been tied around Jaime’s ankles after Jaime was already dead. 

Other evidence reinforced that opinion. Photographs showed that Jaime’s 

ankles had been crossed, which is an unnatural position for a living person 

resisting an attack. Also, a plastic dry cleaning bag was caught between Jaime’s 

ankles and the telephone cords, and photographs showed additional plastic bags on 

the floor of the closet. The prosecution proposed that Jaime must have been dead 

on the floor when his ankles were tied, and that appellant, in a hasty effort to stage 

the scene, must have inadvertently wrapped the telephone cords around the dry 

cleaning bag. 

Inside the master bathroom, investigators found a blouse, two towels, and a 

large kitchen knife, all submerged in the Jacuzzi tub. The knife belonged to the 

same brand of cutlery found in the kitchen, and Jaime’s blood was detected on the 

blade, suggesting that it was the murder weapon. Outside the master bedroom, 

where Jaime’s body lay dead, the master bathroom was the only room in the entire 

house where Jaime’s blood was discovered. The prosecution proposed that no 

blood was found elsewhere because appellant killed Jaime in the master bedroom 

and then washed herself off in the master bathroom. 

The prosecution proposed next that appellant opened the garage door after 

killing Jaime so that she could be “rescued” the following day by visitors, whom 

she was expecting for a holiday dinner. The prosecution likewise proposed that 
7

appellant restrained herself in the bathroom closet so as to appear that she could 

not have been the killer. Through an in-court demonstration, the prosecution 

showed how appellant could have tied herself up. And through a video exhibit, the 

prosecution showed how appellant could have locked herself inside the bathroom 

closet by wedging a chair under the outside door handle. 

The recreation of the wedged chair required the use of a pillow sham. On the 

video exhibit, an investigator began by entering the closet and then placing a 

pillow sham on the bathroom floor, with one end of the pillow sham inside the 

closet, and the other end outside the closet under the back two legs of the chair. 

The investigator then closed the closet door so that only a crack remained open. 

The investigator extended his hand through the crack and leaned the back end of 

the chair under the outside door handle, so that the chair was tilted at an angle and 

its front two legs were lifted off the ground. The investigator then brought his hand 

back inside the closet and pulled on the end of the pillow sham that was still at his 

feet. This pulling motion dragged the chair closer to the frame of the closet, and 

when the door shut completely, the chair became wedged securely under the 

handle as though it had been placed there deliberately by someone on the outside. 

The recreation was inspired by an actual pillow sham that had been collected 

from the master bathroom. That pillow sham was torn, and the prosecution 

proposed that the tear was caused from the pulling motion when appellant staged 

the scene in the manner recreated in the video exhibit. 

Aside from this physical evidence of staging, the prosecution drew attention 

to other evidence that undermined appellant’s claim that Jaime had been killed at 

the hands of a home invader. For instance, the prosecution called a next door 

neighbor, who testified that she never heard appellant’s dogs barking on the night 

of the murder, even though those dogs have woken her up on previous occasions. 
8

Relatedly, the prosecution pointed out that if appellant could hear her dogs 

barking outside, as she first told investigators in her recorded statement, then she 

should have been able to hear Jaime fighting with a home invader during the 

fifteen minutes that she remained in the Jacuzzi tub. Yet appellant told 

investigators that she heard nothing during those fifteen minutes. Perhaps realizing 

this inconsistency, appellant told investigators near the end of her recorded 

statement that the Jacuzzi tub was sometimes loud and defective. The prosecution 

undermined that explanation with certain real estate documents, which showed that 

when appellant sold her home after the murder, she did not disclose that anything 

was defective with the Jacuzzi tub. 

The prosecution also produced certain medical records from appellant’s 

primary care physician. The records included notes from 2008, 2009, 2010, 2012 

(the year of the murder), and 2013. Although these records affirmatively stated that 

appellant had been diagnosed with a seizure disorder some thirty years earlier 

when she was just a teenager, they also indicated that her condition was currently 

“stable.” And in certain records dating back to just a few months before and after 

the murder, the primary care physician reported that appellant “has not had any 

seizure episodes.” This evidence undermined appellant’s claim during her recorded 

statement that she had been experiencing frequent seizures around the time of the 

murder. 

The prosecution also showed that appellant visited her neurologist in 2013, 

after a more than ten-year hiatus, and just a few months after Jaime’s murder. 

Contradicting the records from the primary care physician, which did not reflect 

any seizure episodes, the neurologist testified that appellant had complained of 

neurological issues, including a recent seizure, which could result in a loss of 

memory. But according to the neurologist’s own records, appellant represented that 
9

she had not experienced a seizure for a year, which was also inconsistent with what 

she had told investigators. 

The prosecution candidly acknowledged that it could not determine what 

motive appellant would have for killing her husband, as there was no evidence that 

Jaime had ever been abusive or unfaithful. But motive is not an element of the 

offense, and the prosecution suggested that appellant may have killed Jaime just to 

collect his life insurance benefits, or alternatively, that she was simply unhappy 

with the marriage and she killed him because she belonged to a religion that did 

not approve of no-fault divorce. 

In any event, the prosecution argued to the jury that appellant’s claim of a 

home invasion was implausible. There was no forced entry. There was no property 

taken. And there was no blood outside of the master bedroom and master 

bathroom. If a third person had been responsible for brutally stabbing Jaime to 

death, the prosecution argued that there would have been traces of blood in other 

rooms as that person were leaving the home. Because there was no such blood 

evidence, the prosecution argued that the killer must have been appellant, the only 

other person who was admittedly there. 

The Defense’s Case. Appellant did not testify during the trial, but her 

defense counsel attacked the prosecution’s case on multiple fronts. 

One of the defense’s points related to the absence of DNA evidence. The 

defense showed that Jaime did not have appellant’s DNA under his fingernails, and 

vice versa, that appellant did not have Jaime’s DNA under her fingernails. Because 

skin scrapings would have been expected in a close hand-to-hand struggle and yet 

there was no DNA evidence indicative of such scrapings, the defense argued that 

appellant could not have been Jaime’s killer. 
10

To bolster that point, that defense emphasized that, in photographs taken 

after the murder, appellant did not have any broken fingernails or injuries to her 

hands. The defense also pointed out that the brutal attack on Jaime would have 

been difficult for appellant from a sheer physical standpoint. There was testimony 

that appellant had previously had a broken shoulder. Also, she suffered from 

rheumatoid arthritis, she had a double hip replacement, and she sometimes walked 

with a cane. 

The defense produced family friends as witnesses, who testified that 

appellant would have auras and forget things. The same family friends testified that 

appellant and Jaime were a happy couple who did not appear to be suffering from 

any sort of marital discord or financial problems. Along those same lines, a digital 

forensics analyst who examined the couple’s computers and cellphones testified 

that there was no evidence of any extramarital relationships, nor any suspicious 

Internet searches like how to tie knots or clean up a murder. 

The defense also emphasized the testimony from Jaime’s brother, who said 

that when he found appellant trapped in the bathroom closet, the chair that had 

been wedged under the handle was in direct contact with the tile floor, not a pillow 

sham. The defense accordingly suggested that appellant did not stage the scene as 

the prosecution had proposed. 

The defense also criticized the prosecution for what it considered a faulty 

investigation. The defense noted that the lead investigator assigned to Jaime’s 

murder had a reputation among law enforcement for being untruthful and for doing 

sloppy police work. The defense criticized this investigator for not exploring other 

suspects, including a neighbor with a penchant for committing theft who was 

spotted lingering around the property after the first responders had arrived. 
11

The defense further criticized the prosecution’s argument that no theft had 

been committed. The defense pointed out that a backpack had been found in the 

garage containing a video gaming console and jewelry belonging to appellant. The 

defense proposed that the home invader had dropped the backpack as he was 

fleeing the property, perhaps because he had been startled. 

The Verdict. The jury rejected appellant’s defensive theories, convicted her 

as charged, and assessed punishment at twenty-seven years’ imprisonment with a 

fine of ten thousand dollars. 

SUFFICIENCY OF THE EVIDENCE 

To obtain the conviction for murder in this case, the prosecution was 

required to prove beyond a reasonable doubt that appellant intentionally or 

knowingly caused Jaime’s death, or that she intended to cause serious bodily injury 

and committed an act clearly dangerous to human life that resulted in Jaime’s 

death. See Tex. Penal Code § 19.02(b)(1)–(2). 

In deciding whether the prosecution satisfied that burden, we examine all of 

the evidence in the light most favorable to the verdict. See Braughton v. State, 569 

S.W.3d 592, 608 (Tex. Crim. App. 2018). Under this standard of review, we have 

no power to reevaluate the weight and credibility of the evidence, or to substitute 

our judgment for that of the factfinder. Id. Quite the opposite, we must honor all 

findings that are supported by the evidence and by any reasonable inferences that 

can be drawn from the evidence. Id. If the record reveals any conflicts in the 

evidence, we presume that the factfinder resolved the conflicts in favor of the 

judgment that was actually rendered. Id.

The main element in dispute in this sufficiency challenge is identity—i.e., 

whether appellant was the person who caused the death of her husband. There is no 
12

direct evidence in support of that element, but a conviction does not require direct 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 

Circumstantial evidence is just as probative as direct evidence. Id. And the record 

here contains an abundance of circumstantial evidence establishing that appellant 

was the offender. 

The circumstantial evidence begins with the undisputed fact that appellant 

was present in the home when Jaime was murdered. Based on that fact, the jury 

knew that appellant at least had the opportunity to commit the murder. 

In addition to that opportunity, there was evidence that the murder was 

physically possible for appellant to commit. Testimony from the medical examiner 

established that Jaime was short and thin, weighing only 125 pounds at the time of 

his death. Appellant was shorter than Jaime, but she outweighed him by more than 

fifteen pounds, according to medical records dated just a few months before the 

murder. Based on this evidence, the jury could have reasonably concluded that 

appellant was capable of overpowering Jaime in a physical attack. 

There was also evidence that appellant engaged in this physical attack. She 

had bruises on both of her upper arms in the hours after the murder. The jury could 

have reasonably concluded that the bruises were caused by Jaime as he resisted her 

brutal stabbing. 

The jury also had a substantial basis for concluding that no other person 

could have committed the murder. There was ample testimony that all of the doors 

and windows around the home were intact. And appellant specifically told 

investigators during her recorded statement that the garage doors had been closed 

when she and Jaime returned home from the store. If the jury credited that 

statement—and we must presume that it did—then the jury could have determined 
13

that there were no open points of entry into the home that a third party could have 

exploited. 

There was of course undisputed evidence that one of the garage doors had 

been opened by the following day, but the evidence did not establish when that 

door was opened, or who had opened it. For at least two reasons, the jury could 

have reasonably concluded that appellant had opened the garage door herself after 

she murdered Jaime: first, the open door would allow her to redirect blame for the 

murder on a fictional home invader, whom she could attempt to manufacture with 

other evidence of staging; and second, the open door would allow her to be 

“rescued” by relatives, whom she anticipated in a matter of hours. 

Evidence of staging is a circumstance that supports a determination of guilt.

See Temple v. State, 390 S.W.3d 341, 361 (Tex. Crim. App. 2013) (upholding a 

murder conviction where there was evidence to support a finding that the 

defendant had staged the scene to resemble a home invasion gone wrong). And 

such evidence was plentiful here. 

There was evidence of staging on Jaime’s body. He had telephone cords tied 

around his ankles, which might suggest that he had been restrained by a home 

invader, but as the medical examiner testified, there were no ligature marks or 

hemorrhages around those ties, which suggested that Jaime’s ankles had actually 

been tied after his death. The jury could have reasonably concluded that appellant 

was responsible for the ties because a home invader would not have expended the 

time and effort to restrain Jaime in this manner if he were already dead. 

There was evidence of staging in the torn pillow sham, which had been 

found by investigators in the master bathroom. With the aid of the video exhibit, 

the jury could have reasonably concluded that appellant had locked herself in the 

bathroom closet by using the pillow sham to wedge a chair under the outside door 
14

handle. Even though Jaime’s brother had testified that the chair had been in direct 

contact with the tile floor, and not the pillow sham, the jury was free to reject that 

testimony and draw the opposite inference. 

There was also evidence of staging in the backpack that had been discovered 

in the garage. The backpack contained some valuable items from within the home, 

which might suggest that a home invader had gathered them, but testimony 

revealed that the backpack formerly belonged to appellant’s daughter, who was 

living in Europe at the time of the murder. The jury could have reasonably 

concluded that a home invader would have brought his own bags for carrying away 

loot, and that he would not have left the bags at the scene. Especially considering 

that no other valuables were missing from the home and that the dresser drawers 

appeared to be undisturbed, the jury was free to believe that appellant had stuffed 

the backpack herself, and then planted it in the garage for investigators to discover 

later. 

Appellant’s demeanor after the murder was another circumstance of guilt. 

More than one witness testified that appellant appeared to be crying without tears, 

which supported a finding that her emotions were not sincere. And during her 

recorded statement, she was slow to respond to the investigators’ questions, 

suggesting that she was withholding information and carefully choosing her words. 

Id. at 362 (considering in a sufficiency analysis that the defendant “lacked emotion 

after discovering that his wife had been shot” and that, during his interview with 

detectives, “he was hesitant in his answers, and he still did not cry”). 

There were also the inconsistencies in appellant’s own statements. She told 

investigators that she could hear her dogs barking outside, but she denied hearing 

any sort of struggle inside the home at the time she claimed a home invader was 

attacking her husband. She also told investigators that she had been experiencing 
15

frequent seizure activity around the time of the murder, but after the murder, she 

told her primary care physician that she had not had any recent seizure episodes, 

and she told her neurologist that she had only experienced a single seizure in the 

previous year. Appellant’s seizure disorder was central to her trial defense because 

it purported to explain why she could not remember any details about the claimed 

home invasion. But because her statements about her seizure disorder were 

inconsistent, the jury could have reasonably determined that the entire defense was 

not credible. Id. at 361 (considering in a sufficiency analysis the defendant’s 

inconsistent statements as a circumstance of guilt). 

Appellant responds with dozens of bullet points, spread over more than 

twenty consecutive pages in her brief, all attacking the prosecution’s case and 

explaining why she could not have been the person who killed her husband. These

points emphasize such facts as the absence of appellant’s DNA on Jaime’s person, 

the absence of Jaime’s DNA on appellant’s person, and the absence of Jaime’s 

blood on any surface in the master bathroom (with the exception of the knife) 

where appellant might have washed herself off. We cannot indulge these points or 

any of the others raised in the brief because they all lead to inferences that were 

rejected by the jury, and under our standard of review, we must consider all of the 

evidence in the light most favorable to the jury’s decision. See Turro v. State, 867 

S.W.2d 43, 47 (Tex. Crim. App. 1993) (“The evidence is not rendered insufficient 

simply because appellant presented a different version of the events.”). 

Furthermore, the absence of DNA or blood evidence is not dispositive. See Temple 

v. State, 342 S.W.3d 572, 640 (Tex. App.—Houston [14th Dist.] 2010) (concluding 

that the evidence was sufficient to support the conviction for murder, despite a 

forensic analysis showing that none of the complainant’s blood or brain matter was 

found on the defendant or his clothing, and despite other testimony showing that 
16

the defendant had a very short window of time—not hours, as in appellant’s case—

to wash himself off and dispose of any incriminating evidence), aff’d, 390 S.W.3d 

341 (Tex. Crim. App. 2013). 

Based on the cumulative force of all of the evidence presented and of the 

reasonable inferences that could be drawn from that evidence, the jury had a 

rational basis for concluding that appellant was the person who attacked her 

husband and that she intentionally or knowingly caused his death. We accordingly 

conclude that the evidence is legally sufficient to support every essential element 

of the offense beyond a reasonable doubt. 

MOTION FOR NEW TRIAL 

The defense filed a motion for new trial, alleging that the jury had engaged 

in misconduct after retiring to deliberate during the guilt phase of the proceedings. 

The only evidence offered in support of the motion was an affidavit from one of 

appellant’s lawyers, who attested in material part as follows: 

I had the opportunity to speak with jurors before they retired from jury 

duty on the Sandra Melgar case. The entire panel was present, 

including my co-counsel [and] the prosecutor . . . . When the 

prosecutor asked the jurors what they thought of the demonstrations, 

[one juror] stated that many of the jury members had tied themselves 

up to see if it was possible to get [loose] from the bindings. [The 

juror] stated that they had done a demonstration and that on the first 

day of deliberations, [another juror] was rolling around, tied up, on the 

floor, and that [the other juror] tried to get herself out of the ties and 

that they wanted to see how much you could see while rolling around 

and for how long.

At the hearing on the motion for new trial, the prosecutor objected to the 

affidavit on the basis of hearsay, but the trial court overruled the objection and 

admitted the affidavit. The defense then argued that the jury’s experiments were 

improper because the defense was unable to see whether the jury had used bindings 
17

that were similar to the bindings that were described by appellant and her defense 

witnesses. The trial court denied the motion for new trial without making any 

comments or findings of fact. 

Appellant now complains of the trial court’s ruling, which we review for an 

abuse of discretion. See Briggs v. State, 560 S.W.3d 176, 183–84 (Tex. Crim. App. 

2018). Because this is a deferential standard of review, we consider all of the 

evidence in the light most favorable to the trial court’s ruling. Id. at 184. A trial 

court abuses its discretion only when no reasonable view of the record could 

support its ruling. Id. 

The defendant is entitled to a new trial “when, after retiring to deliberate, the 

jury has received other evidence” or “when the jury has engaged in such 

misconduct that the defendant did not receive a fair and impartial trial.” See Tex. 

R. App. P. 21.3(f)–(g). “As a general rule it is improper for a juror to perform 

experiments or demonstrations in the jury room,” but such misconduct does not 

require the granting of a new trial unless “some new fact, hurtful to appellant, was 

discovered by the examination and experiment.” See McLane v. State, 379 S.W.2d 

339, 342 (Tex. Crim. App. 1964). Whether the jury received such new information 

is a question of fact for the trial court to decide. See Tollett v. State, 799 S.W.2d 

256, 259 (Tex. Crim. App. 1990). 

Here, the only evidence establishing the jury’s alleged experiments was the 

affidavit testimony of appellant’s lawyer. The trial court could have disbelieved 

this affidavit testimony, even though it was uncontroverted, simply because it was 

hearsay. See Colyer v. State, 428 S.W.3d 117, 126 (Tex. Crim. App. 2014) 

(recognizing that the trial court is free to discredit post-trial testimony even when it 

is wholly uncontroverted). That reasoning alone would fully support the trial 

court’s ruling. 
18

But even if the trial court credited the affidavit’s hearsay testimony, the trial 

court was still not required to grant the defense’s motion. The affidavit contains no 

details about the types of materials the jurors used in tying themselves up, or what 

sorts of knots they attempted to recreate, or the placements of their wrists and 

ankles during these recreations. Because the affidavit contains no information 

about these matters, the trial court was free to determine that the jurors’ 

experiments, though improper, did not differ in any way from the prosecution’s incourt demonstration. Accordingly, the trial court could have reasonably concluded 

that the jury did not discover any new fact in their experiments that was hurtful to 

appellant. See Douthit v. State, 482 S.W.2d 155, 160 (Tex. Crim. App. 1971) 

(upholding the denial of a motion for new trial, despite evidence that one juror had 

tried to tie herself up in the jury room using the electric cord from a coffee pot), 

overruled on other grounds by Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. 

App. 1980) (op. on reh’g); see also McLane, 379 S.W.2d at 342 (there was no 

harm where one juror experimented with the silk stocking of another juror to 

recreate the look of a masked robber); Ingram v. State, 363 S.W.2d 284, 285 (Tex. 

Crim. App. 1962) (there was no harm where the jury experimented with snuff); 

Gahagan v. State, 242 S.W.3d 80, 89–90 (Tex. App.—Houston [1st Dist.] 2007, 

pet. ref’d) (there was no harm where the jury experimented with a gun). 

Appellant suggests that the jury’s experiments were improper even if they 

did track the prosecution’s in-court demonstration because the prosecution’s 

demonstration did not accurately replicate the facts as described by various defense 

witnesses. This point merely highlights a conflict in the evidence, and we presume 

that the jury resolved that conflict on its own. 

Appellant also suggests that the experiments were improper because some of 

them occurred “presumably at home (away from other jury members and 
19

deliberations).” But the affidavit does not state that any experiments occurred at 

home. Based on the limited evidence that was presented, and consistent with our 

standard of review, the trial court could have reasonably concluded that the 

experiments occurred in the deliberation room and that they produced no new facts 

that were harmful to appellant. 

CONCLUSION 

The trial court’s judgment is affirmed. 

 

 /s/ Tracy Christopher

 Justice 

Panel consists of Justices Christopher, Spain, and Poissant.

Publish — Tex. R. App. P. 47.2(b).