IN THE

TENTH COURT OF APPEALS

No. 10-14-00140-CR

No. 10-14-00141-CR

JAMES KENNETH KEELS, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Navarro County, Texas

Trial Court Nos. C-34828-CR and C-34855-CR

MEMORANDUM OPINION

A jury found Appellant James Kenneth Keels, Jr. guilty of the offenses of 

possession of a penalty-group 1 controlled substance in an amount of over four grams 

but under 200 grams and tampering with physical evidence and assessed his 

punishment, enhanced by prior felony convictions, at ninety-nine years’ imprisonment 

for each offense, to be served concurrently. These appeals ensued. Keels has filed a 

joint brief for both appeals. In his sole issue, Keels sets forth the following question:

Is it permissible for a trial attorney to question any juror post-trial in order 
Keels v. State Page 2

to determine whether the jury violated the jury charge and thereby 

usurped the Parole Board powers delegated to the Executive Department 

of our government under the Texas State Constitution, Article 4 Section 

11?

The relevant background is as follows. After he was sentenced, Keels filed a 

motion for new trial alleging in part that jury misconduct had occurred. Keels stated in 

the motion that his counsel had received information from a juror, Aaron Phillip 

Mershawn, that the jury had considered the possibility of when Keels would be 

released from prison, in violation of the parole and good-conduct-time instruction given 

in the punishment charge in each case. The motion stated that Mershawn said that the 

jury looked at how much time Keels had served for his two prior convictions and “did 

the math.” The motion stated that Mershawn further said that “[t]he jury figured that if 

he only served a quarter of the sentence and they gave him 99 years that when he was 

released he would be too old to sell drugs.”

A hearing was held on the motion for new trial. Mershawn did not testify. Keels 

attempted to offer into evidence a recording of a telephone call between Mershawn and 

R.D. Lewis, a private investigator, through Lewis. The State objected that “it’s hearsay 

and depending on the content that it violates Rule 606([b]) and goes into juror 

testimony. And if it doesn’t go into the juror’s testimony then it’s irrelevant.” The trial 

court ruled: “I don’t think that we’ve reached the issue of 606(b) with this witness.... I 

don’t have a ruling in regards to 606(b) with this witness, because he was not a juror. In 

regards to the phone call, your objection for hearsay is sustained.”

Keels then called Kay Berry, another juror, to testify at the hearing, but the State 
Keels v. State Page 3

objected that her testimony would be in violation of Rule 606(b). The trial court ruled: 

“The Court’s ruling is that based on the Texas Rules of Evidence 606(b) and the cases 

that were presented, I do not find that this is outside influence. And, therefore, I am not 

going to allow the jurors to testify about that matter.” Keels then started to make a bill 

of exception. The following exchange took place:

Q. (By [Defense Counsel]) Ms. Berry, I take you back to the day 

that the jury met for punishment of my client, Mr. Keels. At any time was 

there a discussion of the parole law and how it may effect his punishment 

sentence?

[Prosecutor]: Objection, Your Honor, compound question.

THE COURT: Would you please - -

[Defense Counsel]: Your Honor, this is my bill.

THE COURT: - - rephrase.

Q. (By [Defense Counsel]) At any time during the 

deliberations, did you discuss the parole law?

A. No.

Q. Do you remember ever talking about what the State had 

argued that Mr. Keels had been convicted twice and served only so much 

time on each case?

[Prosecutor]: Objection. Compound question.

THE COURT: Can you please rephrase, just break it up, 

[Defense Counsel].

[Defense Counsel]: Your Honor, this is my bill.

THE COURT: I understand.

[Defense Counsel]: He doesn’t have a right to - -
Keels v. State Page 4

THE COURT: Would you - -

[Defense Counsel]: - - he doesn’t have a right to object to 

my bill. This is my bill.

THE COURT: - - would you break your question down for 

the record.

[Defense Counsel]: At this time, Your Honor, I’m going to 

stop my bill. I have 90 days to prepare my bill, and I’ll get it to the Court.

THE COURT: Okay.

The recording of the telephone call between Mershawn and Lewis was also later 

included in the record in a bill of exception. The conversation during the call was in 

relevant part as follows:

MR. LEWIS: Okay. All right. I guess the other question is 

the regular range on this was 2 to 20 without any priors.

MR. MERSHAWN: Uh-huh.

MR. LEWIS: And there was no deaths, no injuries, and they, 

the jury came up with 99 years.

MR. MERSHAWN: Uh-huh.

MR. LEWIS: Do you have a, I mean, was there a particular 

thing that swayed y’all towards the 99?

MR. MERSHAWN: Yeah. That was, maybe he doesn’t 

remember, I think he felt really bad about losing. The whole deal was, is 

we went back and did the math. He had two other priors. He did a 

quarter of the sentence. So basically he did like one year the first time on 

the seven year, or something like that.

MR. LEWIS: Oh.

MR. MERSHAWN: I don’t remember the exact number. 

And he did, supposed to do like 14 and he did like three or four of that 

one. We figured if we give him 99 and he gets out again he would be too 
Keels v. State Page 5

old to sell the drugs. We did a quarter.

MR. LEWIS: Did that - -

MR. MERSHAWN: We gave him a quarter.

MR. LEWIS: So they had already presented the priors to 

y’all of what he served and what he got?

MR. MERSHAWN: Right.

At the conclusion of the hearing, the trial court denied Keels’s motion for new 

trial. We review a trial judge’s denial of a motion for new trial under an abuse of 

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

Texas Rule of Evidence 606(b) states:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the 

validity of a verdict or indictment, a juror may not testify about any 

statement made or incident that occurred during the jury’s deliberations; 

the effect of anything on that juror’s or another juror’s vote; or any juror’s 

mental processes concerning the verdict or indictment. The court may not 

receive a juror’s affidavit or evidence of a juror’s statement on these 

matters.

(2) Exceptions. A juror may testify:

(A) about whether an outside influence was improperly brought to 

bear on any juror; or

(B) to rebut a claim that the juror was not qualified to serve.

Keels argues that the exception found in Rule 606(b)(2)(A) applies in these cases and 

that it should be broadly interpreted because “important countervailing considerations” 

are involved. Keels claims that the exception applies in these cases because the parole 

board itself and its operations are outside the jury room and because the potential 

exercise by the parole board of its powers constitutes an influence that was “improperly 
Keels v. State Page 6

brought to bear” upon the jury. We disagree.

In McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012), the Court of 

Criminal Appeals defined “outside influence” as “something originating from a source 

outside of the jury room and other than from the jurors themselves.” Id. at 154; see 

Colyer, 428 S.W.3d at 125. Here, assuming without deciding that the evidence in the 

bills of exception was otherwise admissible, it had nothing to do with something that 

originated from a source outside of the jury room and other than from the jurors 

themselves. Therefore, the evidence had nothing to do with an improper “outside 

influence.”

The trial court did not abuse its discretion in refusing to consider the evidence in 

the bills of exception and in denying Keels’s motion for new trial. We overrule Keels’s 

sole issue and affirm the trial court’s judgments. 

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurring with a note)*

Affirmed

Opinion delivered and filed July 30, 2015

Do not publish

[CRPM]

* (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial 

court’s judgment with the following comments, a separate opinion will not follow: 

Keels failed to properly introduce any admissible evidence before the trial court that 

any juror violated their oath. After the trial court properly excluded the statements of 

the juror when the private investigator attempted to testify about what the juror said 
Keels v. State Page 7

during a telephone interview, the subsequent filing of the audio tape of that interview 

did nothing to present the testimony to the trial court judge as a basis to grant a new 

trial based on jury misconduct. And neither the trial court nor this Court knows what 

the other juror was going to testify to because a bill of exceptions (or an offer of proof) 

was never made. Having no evidence properly before the trial court upon which to 

grant a motion for new trial based on jury misconduct, the trial court did not err in the 

denial of the motion.

Furthermore, the “issue” (fully set out in the Court’s opinion) is nothing more 

than an abstract question to which the Court should not be drawn into discussing. It is 

a meaningless hypothetical and the record in this case shows that there was no restraint 

upon the attorney or his representative from talking to any juror post-trial. Finally, this 

is not the proceeding in which to elaborate upon how I may feel about having a rule 

about what jurors cannot do, but no effective tool to enforce that rule. It does, however, 

remind me of the proverb: A law without penalty is simply suggestion (Author 

unknown).

Because the Court ultimately reached the same result that I would and affirms 

the trial court’s judgment, I respectfully concur in the judgment to that extent but do not 

join the Court’s opinion.)