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NO. 13-14-00728-CR

IN THE COURT OF APPEALS

FOR THE

THIRTEENTH COURT OF APPEALS DISTRICT

OF TEXAS

NUECES COUNTY, TEXAS

QUINTON MOODY, 

Appellant

VS.

THE STATE OF TEXAS,

Appellee

Trial Cause No. 2013-CR-9347

Appeal form the 399th District Court

Bexar County, Texas

Hon. Ray Olivarri, Presiding

APPELLANT’S BRIEF

 

Mario A. Trevino

 Attorney for Appellant

ORAL ARGUMENT WAIVED 315 S. Main, San Antonio, Texas 78204

 210-226-0026

 210-226-8402 fax

 trevinomtrev@aol.com

 Bar No. 20211250

ACCEPTED

13-14-00728-cr

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

5/6/2015 6:06:12 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/6/2015 6:06:12 PM DORIAN E. RAMIREZ Clerk
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Identity of the Parties

1. Quinton Moody, TDCJ # 01965382, Garza East Transfer Facility, 4304 

Highway 202, Beeville, Texas 78102. Appellant

2. The State of Texas, by and through the Bexar County District Attorney’s 

Office, Paul Elizondo Tower, 101 W. Nueva, San Antonio, Texas 78205, is 

the appellee and prosecuted this case in the trial court.

The trial attorneys were as follows:

1. Quinton Moody was represented by Ronald A. Ortman, SBN 15324407, 

Post Office Box 90611, Texas 78209.

Jesus Lopez, SBN 2042579, 215 N. San Marcos, San Antonio, Texas 78205

2. The State of Texas was represented by Susan D. Reed, District Attorney, 

Jessica Lee Frazier, SBN 24057854 and Daniel Walker, SBN 24070810, 

Assistant District Attorneys, Paul Elizondo Tower, 101 W. Nueva, San 

Antonio, Texas 78205.

The appellate attorneys are as follows:

1. Quinton Moody is represented by Mario A. Trevino, SBN 20211250, 315 S. 

Main, San Antonio, Texas 78204.
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2. The State of Texas is represented by the Bexar County District Attorney’s 

Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva, Suite 370, 

San Antonio, Texas 78205
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Table of Contents

Identity of Parties .................................................................................... 2

Table of Contents...... ............................................................................... 4

Index of Authorities.................................................................................. 5

Statement of the Case.... .......................................................................... 6

Statement Regarding Oral Argument...................................................... 7

Issues Presented........ ................................................................................. 8

Issue #1: The trial court abused its discretion by denying appellant’s motion for 

mistrial made because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

Issue #2: The trial court abused its discretion by denying appellant’s motion for 

new trial filed because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

Statement of the Facts ................................................................................... 9

Summary of the Argument.............................................................................. 13

Argument: Issue #1 .............................................................................. 15

 Issue #2 .............................................................................. 18

Prayer................................................................................................................. 20

Certificate of Service....................................................................................... 21 

Word Count....................................................................................................... 21
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Index of Authorities

Cases

1. Allen v. United States, 164 U.S. 492 (1896)........... 17

2. Alexander v. State, 919 S.W.2d 756 (Tex. App. Texarkana 1992, no pet.)...16

3. Chairs v. State, 878 S.W. 2d 250, 253 (Tex. App. – Corpus Christi 1994, no 

pet.)............................................................................................................ 16

4. Colyer v. State, 428 S.W. 3d 117, 122 ( Tex. Crim. App. 2014)..... 18

5. Granados v. State, 85 S.W. 3d 217, 235 (Tex. Crim. App. 2002)... 16, 19

6. Green v. State, 840 S.W. 2d 394, 406 (Tex. Crim. App. 1992) ......... 16

7. Hawkins v. State, 135 S.W. 3d 72, 76-77 (Tex. Crim. App. 2004)...... 15, 18

8. Holden v. State, 201 S.W. 3d 761, 763 (Tex. Crim. App. 2006)..... 15, 18

9. Okonkwo v. State, 398 S.W. 3d 689, 694 (Tex. Crim. App. 2013)... 18

10. Salazar v. State 38 S.W. 3d 141, 148 ( Tex. Crim. App. 2001).... 18

11. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App.2007)... 15, 18

Statutes

Tex. Code Crim. Proc. Ann. 36.14 ................................................... 17, 20

Tex. Code Crim. Proc. Ann. 36.22 ................................................. 16, 17, 20

Tex. Code Crim. Proc. Ann. 36.27 ............................................. 17, 20 

Rules

Texas Rules of Appellate Procedure 21.3(f)...................... 17, 19
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To the Honorable Justices of the Court of Appeals:

Appellant Quinton Moody submits this Brief in support of his appeal.

Statement of the Case 

This is an appeal of a Judgment and Sentence for Retaliation- Habitual in cause 

number 2013-CR-9347 in District Court Number 399 of Bexar County Texas. In its 

Indictment, the State alleged that on or about May 18, 2013, in Bexar County, 

Texas, Appellant committed the offense of Retaliation. The Indictment included 

two Enhancement paragraphs. CR. 15. To the allegations in the Indictment, 

Appellant pleaded “not guilty”. RR3. 12. Appellant elected to have the Jury assess 

punishment. CR. 120. A trial was had before a jury. CR. 204 - 205.

On, November 3, 2014, Appellant was convicted of Retaliation as charged in the 

Indictment. RR5. 1; CR. 150. On November 4, 2014, the Jury found both 

enhancement paragraphs “True” and sentenced Appellant to 30 years in the 

Texas Department of Criminal Justice Institutional Division. CR. 164, 166. On 

November 4, 2014, the trial court signed a Certification of Defendant’s Right of 

Appeal, certifying that this is a criminal case and that Appellant has the right of 

appeal. CR. 165. 
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On November 7, 2014 Appellant filed a Motion for New Trial. CR. 169. The 

Motion for New Trial was denied on November 10, 2014 without a hearing. CR. 

186.

On November 21, 2014, Appellant filed a timely notice of appeal. CR. 189. 

Statement Regarding Oral Argument

Appellant does not request oral argument. Appellant believes that the facts and 

legal arguments are adequately presented in this Brief. 
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Issues Presented

 

Issue One: The trial court abused its discretion by denying appellant’s motion for 

mistrial made because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

Issue Two: The trial court abused its discretion by denying appellant’s motion for 

new trial filed because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

.
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Statement of Facts

Bexar County Sheriff’s Deputy Officer Carl Davis was dispatched to a family 

disturbance on the evening of May 18th , 2013. RR3, 28. The disturbance involved 

a threat with a knife by a light skinned black male wearing a black shirt with white 

lettering, short and about 5’7”. RR3, 29. When Deputy Davis arrived at the 

location of the disturbance the suspect was no longer there. RR3, 30. Deputy 

Davis went looking for the suspect. RR3, 30. While Deputy Davis is sitting in his 

police car across the street from a convenience store waiting to see if the suspect 

walks by he noticed appellant walking across the street. Deputy Davis recognized

appellant to be a possible match to the person he is looking for. RR3, 31-33. He 

approached appellant and handcuffed and detained him in order to determine if 

he is the suspect. Deputy Davis put appellant in the back of the patrol car. RR3, 

34-35. The appellant did not have an I.D. and became belligerent and upset. RR3, 

37-38. The Deputy then verified appellant’s identification and realized that he is 

not the suspect he was looking for. He removed the appellant’s handcuffs and 

told him he was free to go. RR3, 39. Appellant had been detained for about two 

to three minutes. RR3, 39-40. Instead of leaving the area appellant began to 

argue with and berate Deputy Davis and stated that he is “old school mafia”. RR3, 

40. Appellant continues to be upset and opens up the backdoor of the patrol car 
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and tells the Deputy to take him to jail. RR3, 43. In response the Deputy puts the 

handcuffs on appellant again and places him in the vehicle to calm down. RR3, 40. 

A few minutes later the Deputy releases appellant again and tells him to leave. 

RR3, 45. Appellant walks to a nearby store and begins to challenge the Deputy to 

a fight. He then begins to walk back towards the Deputy with his hands in a fist 

and an aggressive manner. RR3, 45. The Deputy is of the opinion that appellant is 

threatening to harm him so he arrests appellant for retaliation and places him in 

the patrol car. RR3, 46-47. As Deputy Davis is transporting appellant to the jail 

appellant said that when he gets out of jail he will make sure that Deputy Davis’ 

wife would be pushing up daisies. RR3, 50. Deputy Davis perceived this as a 

threat to his family. RR3, 51. 

Appellant testified that he and his wife were coming out of the convenience store 

with groceries in his hand when he was told by Deputy Davis to turn around and 

place his hands behind his back. RR3, 76. He was taken to the patrol vehicle and 

was not told why he was being arrested. Appellant stated that he was irritated by 

this but denied being physically aggressive towards the Deputy. RR3, 78.
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Appellant gave the Deputy his name and date of birth. His identity was confirmed 

and he had no active warrants. RR3, 78. Appellant made no threats to the 

Deputy. RR3, 78-79. 

The jury chose to believe the Deputy and found appellant guilty of retaliation.

RR5, 1.

Prior to the beginning of the punishment phase of trial, defense counsel made a 

motion for mistrial and an oral offer of proof in support. RR6, 5-8. The motion for 

mistrial was based on an unauthorized conversation the bailiff had with the jury. 

Defense counsel proffered that the bailiff said the jury had asked what happens if 

they are split 11 to 1 and they cannot reach a decision. The bailiff told the jury 

that they may continue to deliberate or in the alternative will be sequestered. 

The bailiff explained that sequestered means they would be held overnight and 

perhaps longer. Defense counsel argued that no person is authorized to converse 

with a juror about the case outside of the court and without the permission of the 

court and that the question should have been in writing and answered by the 

court as mandated in the Charge of the Court not the bailiff. The trial court 

denied the motion for mistrial. RR6, 5-10.
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At the conclusion of the punishment phase of trial the jury assessed a 30 year 

term in prison. RR6, 105. Defense counsel filed a motion for new trial alleging 

the same jury communication with the bailiff as the grounds for granting the 

motion. The trial judge denied the motion for new trial without a hearing. CR, 

169-187.

 
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Summary of the Argument

Appellant presents the following argument in this Brief: The bailiff’s 

communication with the jury about the possibility of sequester violated articles 

36.14, 36.22, and 36.27 of the Texas Code of Criminal Procedure and pursuant to 

Rule 21.3(f) Texas Rules of Appellate Procedure the trial court abused its 

discretion when it failed to grant defense counsel’s motions for mistrial and new 

trial. When anyone outside of the court makes an unauthorized communication 

with a juror about the case on trial a presumption of injury arises. Defense 

counsel established that a communication occurred between a juror and 

someone else, in this case the bailiff; that the communication involved the case at 

trial and that it consisted of more than insignificant, unrelated comment or 

exchange. Once appellant offered evidence that there was an unauthorized 

communication with a juror about the case on trial - in the present case the 

evidence amounted to an offer of proof which was accepted by the court - the 

State bears the burden of overcoming the presumption of harm. The statement 

by defense counsel went beyond establishing that there was a communication 

concerning the case, it also detailed the contents of the conversation, to wit: 

“The bailiff came out. I watched him as he came out from back behind the judge, 

and I looked at his hands to see if he had any notes in his hands. He did not. He 

came over and approached us, the defense and the State simultaneously, and he 
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said, the jury has asked a question about what happens if they are split 11 to l and 

they cannot reach a decision. And so the bailiff then told us at that point he told 

the jury you may continue to deliberate or in the alternative, ugly word, and this a 

quote from the bailiff , sequester. And then they asked, What is that? And he 

told them that, you could be held here to decide the case if you’re not able to 

decide it right now. Meaning that they could be held overnight, perhaps longer. 

And we think at that point in time that close to the end of the day, 3:30, 4 o’clock 

in the afternoon, that this put the jury under excruciating pressure to settle the 

case right then and there.” RR6, 8-9.

The unauthorized communication between the jury and the bailiff occurred at a 

crucial time. The jury was split and had not been able to reach a verdict. The 

State elected to present no evidence and failed to rebut the presumption of 

harm.
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Argument

Issue One: The trial court abused its discretion by denying appellant’s motion for

mistrial made because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

A trial court’s ruling on a motion for mistrial is not to be disturbed on appeal 

absent a showing of abuse of discretion. When the alleged error is the trial 

court’s refusal to grant a motion for mistrial review is limited to whether the trial 

court abused its discretion. Hawkins v. State, 135 S.W. 3d. 72, 76-77 (Tex. Crim. 

App. 2004)

Under this standard, the evidence is reviewed in the light most favorable to the 

trial court’s ruling and uphold the trial court’s ruling if it is within the zone of 

disagreement. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App. 2007). On 

appeal, the appellate court does not substitute its judgment for that of the trial 

court, but instead considers whether the trial court’s decision was arbitrary or 

unreasonable. Holden v. State, 201 S.W. 3d. 761, 763 ( Tex. Crim. App. 2006).

The complaining party must establish that a communication occurred between a 

juror and someone else, that the communication involved the specific case at 

trial, and that it consisted of more than an insignificant, unrelated comment or 
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exchange. Once it has been shown that an unauthorized communication with a 

juror about the case on trial occurred, a presumption of injury arises. Green v. 

State, 840 S.W. 2d 394, 406 (Tex. Crim. App. 1992); Alexander v. State, 919 S. W. 

2d. 756 ( Tex. App. Texarkana 1996, no pet.); Chairs v. State, 878 S.W.2d 250, 253 

(Tex. App. – Corpus Christi 1994, no pet.). Once the defendant has offered 

evidence that there was an unauthorized communication with a juror about the 

case on trial, then the State bears the burden of overcoming the presumption of 

harm. Green v. State, 840 S.W. 2d at 406; Alexander v. State, 919 S.W.2d at767.

In deciding the issue raised in the motion for mistrial, the court relied on an offer 

of proof by defense counsel which was accepted and considered by the trial 

court. RR6, 5-10. The offer of proof went beyond establishing that there was a 

communication concerning the case, it also detailed the contents of the 

conversation. 

It is undisputed that a conversation occurred between a juror and the bailiff and 

that the communication involved the specific case at trial. A juror must make 

decisions at the guilt and punishment phases using information obtained in the 

courtroom: the law, the evidence, and the trial court’s mandates. Granados v. 

State, 85 S.W. 3d. 217, 235 ( Tex. Crim. App. 2002). Accordingly, Article 36.22 of 
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the Texas Code of Criminal Procedure prohibits conversing with the jury and in 

relevant parts states “ No person shall be permitted to converse with a juror 

about the case on trial except in the presence and by the permission of the 

court.” Texas Rules of Appellate Procedure 21.3 (f) provides that a defendant 

must be granted a new trial when a juror has talked with anyone about the case. 

The trial court abused its discretion by failing to grant appellant’s motion for 

mistrial for the following reasons. RR6, 10. The uncontroverted evidence 

established that the bailiff discussed the case with a juror. The subject matter of 

the discussion – sequestration – occurred when the jury was carefully considering 

all the relevant evidence. RR6, 9. The bailiff’s mention of the “ sequester” was 

functionally an Allen or dynamite charge, thereby violating Article 36.14 of the 

Texas Code of Criminal Procedure which requires the trial judge to deliver all jury 

charges in writing to the jury. Allen v. United States, 164 U.S. 492 (1896). The 

bailiff’s comments in response to the juror’s question violated article 36.27 of the 

Texas Code of Criminal Procedure which requires all communications with the 

jury to be in writing as well as article 36.22 which prohibits any person to 

converse with a juror about the case on trial except in the presence and by the 

permission of the court. The State elected to present no evidence and failed to 

rebut the presumption of harm. 
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Issue Two: The trial court abused its discretion by denying appellant’s motion for 

new trial filed because of an unauthorized conversation between a juror and the 

bailiff about the case on trial and while the jury was deliberating. 

When the alleged error is the trial court’s refusal to grant a motion for mistrial or 

a motion for new trial, review is limited to whether the trial court abused its 

discretion. Hawkins v. State, 135 S.W. 3d 72, 76-77 ( Tex. Crim. App. 2004); Salazar 

v. State 38 S.W. 3d 141, 148 ( Tex. Crim. App. 2001).

A trial court’s ruling on a motion for new trial is reviewed under an abuse of 

discretion standard. Colyer v. State 428 S.W. 3d 117, 122 ( Tex. Crim. App. 2014).

Okonkwo v. State, 398 S.W. 3d 689, 694 (Tex. Crim. App. 2013)

Under this standard, the evidence is reviewed in the light most favorable to the 

trial court’s ruling and uphold the trial court’s ruling if it is within the zone of 

disagreement. Webb v. State, 232 S.W. 3d 109, 110 (Tex. Crim. App. 2007). On 

appeal, the appellate court does not substitute its judgment for that of the trial 

court, but instead considers whether the trial court’s decision was arbitrary or 

unreasonable. Holden v. State, 201 S.W. 3d. 761, 763 ( Tex. Crim. App. 2006).
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In deciding the issue raised in the motion for new trial, the court relied on the 

pleading in the motion which were very similar to the offer of proof which had 

been accepted and considered by the trial court at appellant’s motion for mistrial. 

CR. 169-187. RR6, 5-10.

It is undisputed that a conversation occurred between a juror and the bailiff and 

that the communication involved the specific case at trial. RR6, 5-10. A juror 

must make decisions at the guilt and punishment phases using information 

obtained in the courtroom: the law, the evidence, and the trial court’s mandates. 

Granados v. State, 85 S.W. 3d. 217, 235 ( Tex. Crim. App. 2002). Accordingly, 

Article 36.22 of the Texas Code of Criminal Procedure prohibits conversing with 

the jury and in relevant parts states “ No person shall be permitted to converse 

with a juror about the case on trial except in the presence and by the permission 

of the court.” Texas Rules of Appellate Procedure 21.3 (f) provides that a 

defendant must be granted a new trial when a juror has talked with anyone about 

the case. 

The trial court abused its discretion by failing to grant appellant’s motion for new 

trial for the following reasons. The uncontroverted evidence established that the 

bailiff discussed the case with a juror. RR6, 5-10. The subject matter of the 
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discussion – sequestration – occurred when the jury was carefully considering all 

the relevant evidence. RR6, 9. The bailiff’s mention of the “ sequester” was 

functionally an Allen or dynamite charge, thereby violating Article 36.14 of the 

Texas Code of Criminal Procedure which requires the trial judge to deliver all jury 

charges in writing to the jury. The bailiff’s comments in response to the juror’s 

question violated article 36.27 of the Texas Code of Criminal Procedure which 

requires all communications with the jury to be in writing as well as article 36.22 

which prohibits any person to converse with a juror about the case on trial except 

in the presence and by the permission of the court. The State elected to present 

no evidence and failed to rebut the presumption of harm. 

Prayer

For the above reasons, Appellant prays that upon appellate review, this Court 

reverse the trial court’s judgment and grant appellant a new trial and remand the 

case for further proceedings.
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 Respectfully submitted

/s/Mario A. Trevino

315 S. Main

San Antonio, Texas 78204

(210) 226-0026

(210) 226-8402 fax

trevinomtrev@aol.com

SBN: 20211250

Attorney for Appellant

Certificate of Service

I hereby certify that a true and correct copy of this Brief for Appellant has 

been hand-delivered to the Bexar County District Attorney’s Office, Appellate 

Division, Paul Elizondo Tower, 101 W. Nueva, San Antonio, Texas; and by email.

/s/Mario A. Trevino

Attorney for Appellant

Word Count

Pursuant to Tex. R. App. P. 9.4(i) (1) and (1)(2)(B), the word count from the 

beginning of the Statement of Facts until, but excluding, the signature block is: 

3,390. The total word count is 3,515.