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 PRESIDING

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 sentenced him to five years’ imprisonment. On appeal, he argues that the trial court 

should have granted his motion for new trial based on juror 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. 2012). “We 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 ruling only ‘if no reasonable view of the 

record could support’ it.” Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021) (quoting 
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Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013)); see Briggs v. State, 

560 S.W.3d 176, 184 (Tex. Crim. App. 2018). “When jury misconduct is raised in a motion for 

new trial, whether misconduct occurred is 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 that the 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. State, 

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; see Pena-Rodriguez v. Colorado, 

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

“no-impeachment rule”). In addition, the rules of evidence provide that during an inquiry into 

the validity of a verdict, a juror may not testify, and the trial court may not receive an affidavit or 

other evidence about statements made or incidents that occurred during deliberations, “the effect 

of anything on that juror’s or another juror’s vote,” or the mental processes of any jurors 

concerning the verdict or indictment. Tex. R. Evid. 606(b)(1). The no-impeachment rule is 

intended to provide privacy for jury deliberations “to encourage jurors to 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 which occurs outside of the jury room and outside of the juror’s personal 

knowledge and experience,” McQuarrie, 380 S.W.3d at 153, and the Supreme Court recently 

held that when a juror makes a clear statement indicating that “he or she relied on racial 

stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the 
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no-impeachment 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,” Pena-Rodriguez, 137 S. Ct. 

at 869.

SUMMARY OF RELEVANT FACTS

Initially, we address what evidence we may consider. In the hearing on 

appellant’s motion for new trial, five witnesses testified, and throughout the hearing, the State 

objected on hearsay and other grounds. The trial court sustained many of the State’s objections,1

and appellant made several bills of exception to preserve for appeal certain testimony by Juror 4 

and Juror 8. In his brief, appellant refers to some of the testimony contained in the bills of 

exception, 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 

Juror 4’s testimony, appellant asked the trial court to admit the Juror 4 bills of review as 

testimony. The trial court refused, saying, “If I admit it as testimony, 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 then 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 purpose; won’t be considered for purposes of my 

decision.” Given the trial court’s explicit refusals to consider any of the excluded evidence, we 

will only summarize the evidence admitted at the hearing.

1 Appellant does not complain on appeal about the trial court’s evidentiary rulings other 

than to allude to the Pena-Rodriguez rule allowing a trial court to consider evidence of racial 

animus. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017).
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After closing arguments in the guilt-innocence phase, the jury began deliberating

at 10:42 a.m. At 1:20 p.m., it informed the trial court that it was “hung 6 vs 6 for a unanimous 

verdict,” and the trial court instructed it to attempt to continue deliberations. At 2:56 p.m., the 

jury sent another note saying that it was still split, and the trial court responded with an Allen

charge,2to which the attorneys agreed. About two hours later, the jury informed the trial court 

that it had reached a verdict, announcing that it had found appellant guilty when called back into 

the courtroom. The next morning, before the punishment phase began, appellant’s attorney 

polled the jury, and all twelve jurors confirmed that they agreed with the guilty verdict.

Appellant filed a motion for new trial asserting that a post-verdict investigation 

had resulted in allegations of juror misconduct.3 Appellant alleged that: jurors had commented 

on appellant’s decision not to testify, despite a charge instruction to the contrary; jurors had 

commented on discussions at the bench, relaying information that one juror said he had gleaned 

through lip reading; one juror commented that he “knew all about these kinds of cases and that 

2 The Texas Court of Criminal Appeals has explained an Allen charge as follows:

An Allen charge is a supplemental charge sometimes given to a jury that declares 

itself deadlocked. It reminds the jury that if it is unable to reach a verdict, a 

mistrial will result, the case will still be pending, and there is no guarantee that a 

second jury would find the issue any easier to resolve.

Barnett v. State, 189 S.W.3d 272, 277 (Tex. Crim. App. 2006) (citing Allen v. United 

States, 164 U.S. 492, 501 (1896)).

3 Appellant attached to his motion the affidavits of two jurors, but the State objected to 

those affidavits, and they were not introduced into evidence during the hearing 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 unless 

offered and admitted in evidence.”). We thus will not consider the affidavits in our analysis.
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[the defendants] are all guilty”; jurors felt “intimidated” when they saw appellant “roaming free 

around the courthouse” before deliberations began; the jury was split for several hours, during 

which time one male juror “scream[ed] continuously in a loud menacing voice for almost an 

hour straight”; five of the not-guilty votes changed their votes after they saw appellant in the 

hallway “‘smirking’ and smiling”; and the last not-guilty voter changed her vote because she felt 

“overwhelmed with the screaming, that she was never getting out of the room, and abandoned 

after the other jurors changed their votes after seeing the demeanor” of appellant.

In the hearing on the motion for new trial, the trial court heard testimony from 

Juror 4, Juror 8, paralegal Oma Burton, and bail bondsman Freddie Ontiveros.4 Juror 8 testified

that during deliberations, while the jury was deadlocked, the jurors were allowed to go outside 

for fresh air. As she and another juror walked back in, they were stopped by the bailiff because 

appellant was in the same hallway, and Juror 8 testified, “The only thing we saw was him 

walking and then he was just smiling.” She said there were no comments made about that 

interaction when she walked back to and reentered the jury room and said “no” when asked if 

she was “the only person who observed the defendant smirking.” The State objected that 

appellant’s attorney had misstated the testimony, and Juror 8 was asked to describe “what [she]

saw the defendant doing when [she] walked in.” She answered, “Smiling.” Juror 8 testified that 

soon after they returned from being outside, the not-guilty votes changed their minds, and the 

guilty verdict was returned about fifteen minutes later. Appellant’s attorney asked whether there 

were “times where [the jury] went on break where somebody would discuss what the lawyers 

would say at the Bench,” and Juror 8 answered, “Yes.” She also answered “yes” when asked if 

4 Bailiff Jim Coleman also testified, but he only explained that the jury had sent notes 

about being hung to the trial court, that he asked the jurors if they wanted to take a walk outside, 

that he walked them outside, and that he escorted them back into the jury room.
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she “observe[d] someone lipreading the lawyers at the Bench,” but after a lengthy discussion, the 

trial court sustained the State’s hearsay objection to that question.

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

somebody 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 stand, and that if . . . she kept on 

talking, [the attorney was] going to ask for a mistrial.” Burton testified that during deliberations, 

after the jury sent out its second note saying it was deadlocked, she heard “[e]xtremely loud 

yelling, of one person in particular” coming from the jury room. She agreed that it was more like 

screaming and said that it was a male voice yelling “pretty continuous[ly].” She heard “female

voices trying to say something, but then the male voice would just start talking [or] yelling over 

them,” and testified that it was stressful to hear the yelling as she sat in the courtroom. Finally, 

Ontiveros testified that during deliberations, there were “a couple of times that the noise was 

outrageous, high, high, loud”; that it sounded “kind of” like screaming “in a high-pitched voice”; 

that he did not know if the voice was male or female; that other people tried to talk but that it 

sounded like they were being “overruled”; and that he was uncomfortable listening to the yelling.

DISCUSSION

Appellant argues that the record shows that his attorney was “derogated for doing 

her job” 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 violation 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.” However, there was no evidence

that the jurors had a negative reaction to the statement about counsel’s “threat,” that they viewed 
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appellant or his attorney in a negative light because of the information purportedly obtained 

through lipreading, or that appellant might have suffered any other harm as a result of the juror’s 

remarks 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 was contained in the bills of exception, not in the evidence 

actually admitted and considered by the trial court. Appellant cites Pena-Rodriguez for the 

proposition that a juror’s statements indicating an intention to rely on racial animus cannot be 

excluded under the no-impeachment rule, but the Supreme Court further explained:

Not every offhand comment indicating racial bias or hostility will justify setting 

aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to 

proceed, there must be a showing that one or more jurors made statements 

exhibiting overt racial bias that cast serious doubt on the fairness and impartiality 

of the jury’s deliberations and resulting verdict. To qualify, the statement must 

tend to show that racial animus was a significant motivating factor in the juror’s 

vote to convict. Whether that threshold showing has been satisfied is a matter 

committed to the substantial discretion of the trial court in light of all the 

circumstances, including the content and timing of the alleged statements and the 

reliability of the proffered evidence.

137 S. Ct. at 869. The Supreme Court explained that the Pena-Rodriguez case fell “at the 

intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions 

seeking to eliminate racial bias in the jury system” and that those lines of precedent “need not 

conflict.” Id. at 868. The Court observed that the jury misconduct discussed in other cases in 

which the no-impeachment rule was upheld might have been “troubling and unacceptable” but 

was irregular—“anomalous behavior from a single jury—or juror—gone off course.” Id. Racial 

bias, on the other hand, is “a familiar and recurring evil” that poses a risk of “systemic injury to 
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the administration of justice,” thus justifying an incursion on the privacy of jury deliberations. 

Id. at 868-69.

The evidence in question was Juror 8’s testimony that she heard a comment about 

appellant’s use of an interpreter to the effect that “they heard him speak English and they didn’t 

know why he had an interpreter,” and Juror 4’s testimony that the lipreading juror said that he 

saw appellant talking to his attorney in English and “did not understand why [appellant] would 

not get up and testify.” Juror 4 said that the juror “kind of just said it smugly” and implied that 

appellant “was trying to hide something because he’s not testifying, because he can speak to [his 

attorney] in English, but he won’t get up and testify.” Appellant argued that the evidence 

indicated racial animus, but the trial court disagreed, saying, “The only testimony we heard 

anyway was that they wondered why he was—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.” Appellant

did not show that the alleged remarks related to appellant’s language skills were more than 

“irregular” or “anomalous” behavior by the lipreading juror. See id. at 868. We cannot hold that 

the trial court abused its discretion in concluding that appellant had not met the high standard 

discussed by Pena-Rodriguez so as to allow the evidence about the lipreading juror’s testimony 

to be considered. See id. at 869. The trial court could also have determined that the evidence, 

even if considered, did not show misconduct requiring that appellant be granted a new trial. See

Briggs, 560 S.W.3d at 184; McQuarrie, 380 S.W.3d at 150.

Finally, appellant states, “Though Pena-Rodriguez was concerned with race, had 

there been the same violation of one’s right to remain silent Appellant says the same result would 

be had.” As noted earlier, appellant did not show that any remarks to the effect that appellant 

could speak English and was hiding behind a translator rather than testifying was anything more 
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than “anomalous behavior by a single” juror. See 137 S. Ct. at 868. Even if we believed it 

would be appropriate to extend Pena-Rodriguez here to allow the consideration of Juror 4 and 

Juror 8’s testimony, that evidence does not establish that appellant’s rights against selfincrimination were violated such that the trial court abused its discretion in denying his 

motion for new trial. See Briggs, 560 S.W.3d at 184; McQuarrie, 380 S.W.3d at 150; Garza, 

630 S.W.2d at 274; Short, 995 S.W.2d at 954.

We overrule appellant’s sole issue on appeal.

CONCLUSION

Having overruled appellant’s argument on appeal, we affirm the trial court’s 

judgment of conviction.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Baker and Kelly

Affirmed

Filed: June 30, 2021

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