### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00437
- CR

Jerson Ramiro Sanchez , Appellant

v. The State of Texas , Appellee

FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY NO. B
- 17
- 0650
- SA , THE HONORABLE JAY K. WEATHERBY , JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N
A jury convicted appellant Jerson Ramiro Sanchez of aggravated sexual assault of a child and senten ced him to five years ’ imprisonment. On appeal, he a rgues that the trial court should have granted his motion fo r new trial based on j uror misconduct. We affirm the judgment of conviction.

STANDARD OF REVIEW

We review a trial court ’ s decision on a motion for new trial for an abuse of discretion. McQuarrie v. State , 380 S.W.3d 145, 150 (Tex. Crim . App. 20 12)

. “ W e afford almost total deference to a trial court ’ s fact findings, view the evidence in the light most favorable to the trial court ’ s ruling, and reverse the rulin g only ‘ if no reasonable view of the record could support ’ it. ” Najar v. State , 618 S.W.3d 36 6 , 371 (Tex. Crim. App. 2021) (quoting2

Okonkwo v. State , 398 S.W.3d 689, 694 (Tex. Crim. App. 2013) ) ; see Briggs v. State , 560 S.W.3d 176, 1 84 (Tex. Crim. App. 2018)

. “ When jury m isconduct is raised in a motion for new trial, whether misconduct occurred i s a decision for the trial court which will not be disturbed on appeal absent an abuse of discretion

. ” Short v. State , 995 S.W.2d 948, 954 (Tex. App.

— Fort Worth 1999, pet. ref ’ d) . A defendant seeking a new trial based on jury misconduct must show tha t th e misconduct occurred and that the misconduct was detrimental to the defendant

. See Garza v. State , 630 S.W.2d 272, 274 (Tex. Crim. App. 1981) ; Ford v. S tate , 129 S.W.3d 541, 548 (Tex. App.

— Dallas 2003, pet. ref ’ d).

Texas courts apply a “ common - law rule against the admission of jury testimony to impeach a verdict

. ” McQuarrie , 380 S.W.3d at 153 ; s ee Pena

- Rodriguez v. Colorado , 137 S. Ct. 855, 863 (2017) ( discussing different jurisdictions ’ versions of common - law

“ no - imp eachment rule ” ). I n addition, t he r ules of evidence provide that d uring an inquiry into the validity of a verdict , a juror may not testify, and the trial court may not receive an affi da vit or other evidence about statement s made or incident s that occurred duri ng deliberatio ns , “ the effect

o f anything on that juror ’ s or another juror ’ s vote , ” or the mental processes of any jurors concerning the verdict or indictment. Tex. R. Evi d. 606(b) (1). The no

- impeachment rule is intended to provide pri vacy for jury deli berations “ to e ncourage jurors t o candidly discuss the law and facts. ” McQuarrie , 380 S .W.3d at 153. However, a juror may testify “ about whether an outside influence was improperly brought to bear on any juror , ” Tex . R. Evid. 606(b)(2) , an inquiry limited “ to that whic h occurs outside of the jury room and outside of the juror ’ s personal knowledge and experience , ” McQuarrie , 380 S.W.3d at 153 , and t he S u preme Court recently held that whe n a juror makes a clear statement indicat ing that “ he or she relied on racial
stereot ypes or animus t o convict a criminal defendant, the Sixth Amendment requires that the3

no - impeac hment rule give way in order to permit the trial court to consider the evidence of the juror ’ s statement and any resulting denial of the jury trial guarantee , ” P ena - Rodriguez , 1 3 7 S. Ct.
at 869

.
SUMMARY OF RELEV ANT FACTS

Initially , we address what evidence we may consider

. In the hearing on appellant ’ s motion for new trial , five witnesses testified , and t hroughout the hearing, the State objected on hearsay and other grounds

. T he trial court sustained many of the State ’ s objections, 1
and appel lant made several bills of exception to preserv e for appeal certain testimony by J uror 4 and Juror 8

. In his brief, appellant ref ers to some of the testi mony contained in the bills of

exc e pti on, stating that “ because there were no findings of fact entered by the court, it may be that testimony in portions of those bills was considered, and rejected by the court. ” However, during
J ur or 4 ’ s testimony , appe llant asked the trial court to admi t the J uror 4 bills of review as testimony . T he trial court refused , saying, “ If I admit it as te stimony, then it comes into this hearing. It ’ s not. It ’ s not anything I ’ m going to consider, but it ’ s on the record for purposes of appeal. ” Appellant the n said, “ So Judge, also for the appellate record, I would offer [Juror ’ 8 ’ s] testimony or our Bill of Exception as testimony

. ” The trial court ruled, “ I think it is there, but yes, that is now on the record for that purp ose; won ’ t be considered for purpose s of my decision

. ” G iven the trial court ’ s explicit refusal s to consider any of the excluded evidence , we will only summarize the evidence admitted at the hearing

.

1 Appellant does not com plain o n appeal about the trial court ’ s eviden tia ry rulings other than to allude to the P ena - Rodriguez rule allowi ng a trial court to consi der evidence of racial animus

. S ee Pena

- Rodriguez v. Colorado , 137 S. Ct. 855, 86 9 (2017)

.4 After closing a rguments in the g uilt

- innocence phase , t he jury began deliberati ng at 10:4 2 a.m. A t 1:20 p.m., it informed the trial court that it was “ hung 6 vs 6 fo r a unanimous verdict , ” and t he trial court instruct ed it to at tempt to continue deliberations

. At 2 :56 p.m., the jury sent another note saying th at it was st ill spli t, and t he t r ial court responded with an Allen charge, 2 t o which the attorneys ag r eed. A bout two hours lat er, the jury informed the trial co urt that it had reached a verdict, annou ncing that it had found appellant guilty when called back into the courtroom. The next morning, before the puni shment phase began, appellant ’ s attorney polled th e jury, and all twelve jurors confirmed th at they agreed with the guilty ve rdict.

A ppellant filed a motion for new trial asserting that a post

- verdict investigation had resulted i n allegations of juror misconduct. 3 Appellant alleged that : jurors had commented on appellant ’ s decision not to tes tify , des pite a c harge instruction to the contrary; jurors had commented on discussions at the ben ch , relay ing infor mation that one juror sa id he had gleaned through lip reading; one juror com mented that he “ knew all about these kinds of cases and that

2 The Texas C ourt of C riminal Appeals has explained an Allen charge as follows:

An Allen charge is a su pplemental charge sometimes given to a jury that declares it self deadlocked. It reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pend ing, and there is no guarantee that a second jury would find the i ssue any easier to resolve.

Barnett v. State , 189 S.W.3d 272 , 277 (Tex. Crim. App. 2006) (ci ting Allen v. United States , 164 U.S. 492, 501 (1896) )

.

3 Appellant attached to his motion the affidavits of two j urors , but the State objected to those affidavits , and they were not introduced into evidence duri ng the hear ing on appellant ’ s motion

. See Scaggs v. State , 18 S.W.3d 277, 281 (Tex. App.

— Austin 2000 , pet. ref ’ d) ( “ Motions for new trial and affidavits and controverting affidavits are mere pleadings unles s offered and admitted in evidence. ” )

. We thus w ill not con sider the affidavits in our ana l ysis.5

[the defendants] are all guilty ” ; jur ors felt “ intimi dated ” when they saw appellant “ roaming free around the court house ” before deli berations b egan; the jury was spl it for several hours , during which time one male jur or “ scream [ed] con tinuously in a loud mena cing voice for almost an hour stra ight ” ; five of the not

- gui lty votes changed their v otes after they saw appellant in the hallway “ ‘ smirking ’ and smiling ” ; and the last not

- guilty voter changed her vote be cause she fe lt

“ overwhelmed with the s creaming, that she was never getting out of the roo m, and aba ndoned after th e other ju rors changed their votes after seeing the demeanor ” of appellant

.

In the hearing on the motion for new trial, the trial court heard testi mony from
J uror 4 , Juror 8 , parale gal Oma Burton, and bail bondsman F redd ie Ontiveros. 4 Juror 8 testified that during deliberations, while the jury was deadlocked, the jurors were all owed to go outside for fresh air . As she and another juror walked back in, the y were stopped by the bailiff because appellant was in the same hall way , and Juror 8 te stified , “ The only thin g we saw was him walki ng and then he was just smil ing

. ” She said t here were no comments made ab out that interaction when she walked back to and reentered the jury room and said “ no ” when asked if she was “ the on ly p erson who observed the defendant smirking

. ” T he S tate objected that appella nt ’ s attorney had misstated the testimony, and Juror 8 was asked to describe “ what [sh e ]

saw the defendant doing when [she] walked in

. ” She answered, “ Smiling. ” Juror 8 testified tha t

soon after the y ret urned from being outside, the no t

- guilty vot es changed their minds, and the guilty verdi ct was returned about fifteen minutes later. Appellant ’ s attorney asked whether there

were “ times where [the jury] went on break where somebod y would d iscuss what the lawyers would say at the Bench , ” and Juror 8 answered, “ Yes. ” She also answered “ yes ” w hen asked if

4 B ailiff Jim Coleman also testified, but he only explained that the jury had sent note s about being hung to the trial court , that he asked the jurors i f they wanted to take a walk outside, that he wa lke d them outside, and that he e scorted them bac k into the jury room.6

she “ observe[d] someone lipreading the lawyers at the Bench , ” but after a lengthy discussion, the trial court sustained the State ’ s hearsay o bjection to that question.

Juror 4 answered “ yes ” when asked whether she ever “ had reason to b elieve

som e body was lipreading

. ” She explained that one juror “ said that he read what [appellant ’ s attorney was] telling the Judge when the nurse was on the s tand, and that if

. . . she kept on talking, [the attorney was] going to ask for a mistrial. ” Bu rton testified that during deliberations, afte r the jury sent out its second note saying it was deadlocked, she heard “ [e]xtremely lou d yellin g, of on e person in particular ” coming from the jury room . She agreed that it was more like screaming and said th at it was a male voice ye lling “ pretty continuous [ly]

. ” She heard “ female voices tr ying to say something, but then the male voice would just start ta lking [ o r ] yelling over them , ” and testified that it was stressful to hear the yelling as she sat in the c ourt room . Finally, Ontiv eros testified that d uring deliberations, t here were “ a couple of times that the noise was outrageous, high, high, loud ” ; tha t it sounded “ kind of ” like screaming “ in a high

- pitched voice ” ;
t hat he did n ot know if the voice was mal e or female ; that other p eople tr ied to talk but that it sounded like they were being “ overruled ” ; and that h e was uncomfortable listening to the yell ing.

DISCUSSION Appellant argues that the record shows that his attorney was “ derogated for doing her jo b ” and that the “ [r] ecitation by one juror of the conversation at the bench, where Appellant ’ s counsel threatened to ask for a mistrial, is a viol atio n of Appellant ’ s due process rights under the Texas and United States Constitutions because by context it was put in a negative light regarding Appellant ’ s counsel doing her job

. ” Ho wever, t here was no evide nce that the jurors had a negative rea ction to t he statement about counsel ’ s “ threat , ” that they vi ewed7

app ellant or his attorney in a negative light beca use of the information purportedly obtained through lipreading , or that appellant might have suffered any other harm as a resu lt of the jur or ’ s

re mark s about what he had learned through lipreading

.

Appellant next argues that his “ English

- speaking ability (racial in tone) was commented on along with his remaining silent. ” However, most of the testimony on which he might rely for those assertions w as c o ntained in the bills of exception, not in the evidence actuall y admi tt ed and considered by the trial cour t. Appellant cites Pena

- Rodriguez for the proposition that a jur or ’ s statements indi cating an intention to rely on ra cial an imus cannot be exclud ed u nder the no

- impeachment rule, but the Supreme Court further explained:
Not every offhand comment indicatin g racial bias or hostility will justify setting aside the no

- impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there mus t be a showing that one or more jurors made statements exhibiting over t racial bias that cast serious doub t on the fairness and impartiality of the jury ’ s deliberations and resulting verdict. To qualify, the statement must tend to show that racial ani mus was a significant motivating factor in the juror ’ s vote to convict. Whe ther that threshold showing has be en satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and t imin g of the alleged statements and the reliability of the proffered evidenc e.

137 S. Ct. at 869. T he Supreme Court explained that the Pena

- Rod rigue z case fell “ at the intersection of the Court ’ s decisions endorsing the no

- impeachment rule and its decisio ns

s eeking to eliminate r acial bias in the jury system ” a nd that t h os e lines of precedent “ need not conflict. ” Id . at 868. The Court observed that the jury mis conduct discussed in other cases in which the no

- impeachment rule was u pheld might have been “ t roub ling and unacceptable ” but

was irregular

— “ an omalous behavior from a single jury

— or jur or

— gone off course. ” Id . Ra cial bias , on the other hand, is “ a familiar and recurring evil ” that poses a risk of “ systemic inj ury to8

the administration of justice, ” thu s justifying an incursion on the privacy of jury deliberations. Id . at 868

- 69. The evidence in question was Juror 8 ’ s testimony that s he heard a comment about appellant ’ s use of a n interpreter to the effect that “ they heard him speak English and they didn ’ t know w hy he had an interpreter , ” and Juror 4 ’ s testimony that the lipreading juror sa id that he

saw a ppellant talking to his attorney in English and “ did not understand why [ appellant ] would not get up and testify

. ” Juror 4 said that the juror “ k ind of just said it smugly ” and implied that appellant “ was trying to hide something because he ’ s not testifyi ng , because he can speak to [his attorney] in English, but he won ’ t get up and testify. ” A ppellant argued that the evidence
in di cated racial anim us , but the trial court di s agreed, saying , “ T he only testimony we hear d anyway was that they wondered why he w as

—had an interpreter when he [could] speak English. I didn ’ t hear anything that I would think would rise to the level of racism, though. ” A ppel lant did not show that the alleged remark s related to appellant ’ s language skills w er e more than

“ irregular ” o r “ anomalous ” behavior by the lipreading juror. See id . at 868. W e cannot hold that the trial court abused its discretion in con clu ding t hat appella nt had not met the high standard discussed by Pena

- Rodriguez so as to allow the evidence about the lipread ing juror ’ s testimony
to be considered

. See id. at 869. T he trial court coul d also have determin ed that the evidence,

even if considered, did not sh ow misconduct requi ring that appellant be granted a new trial. See Briggs , 560 S.W.3d at 1 84 ; McQuarrie , 380 S.W.3d at 150

.

Finally, appellant states, “ Though Pena

- Rodrigue z was concerned with race, had there been the sam e violation of one ’ s right to remain silent Appellant says the same result would be had. ” As noted earlie r , a ppellant did not show that a ny remark s to the effect that appellant could speak English and was h iding behind a translator rather than testifying was anything more9

than “ anomalous behavior by a single ” juror. See 137 S. Ct. at 868. Even if we believe d it would be appropriate to ext end Pena

- Rodrigue z here to allow the consideration of Juror 4 and
Juror 8 ’ s testimony , th at evidence does not esta blish tha t appellant ’ s rights against self

incrimination were violated such that the trial co urt abused its di scretion in denying his motion f or new trial

. See Briggs , 560 S.W.3d at 1 84 ; McQuarrie , 380 S.W. 3d at 150 ; Garza , 630 S.W.2d at 274 ; Short , 995 S.W.2d at 954

.

We o verrule appellant ’ s sole issue on appeal.

CONCLUSION Having overruled appellant’s ar gume nt on appeal, we affirm the tria l court ’ s judgment of conviction.

__________________________________________ Darlene Byrne , Chi ef Justice Before C hief Justice Byrne, Jus tices Bak er and Kelly
Affi rmed Filed: June 30, 2021 Do Not Publish