Opinion issued August 26, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00438-CR

———————————

GREGORY LAMUND SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd Judicial District Court

of Harris County, Texas

Trial Court Case No. 1349280

MEMORANDUM OPINION

Gregory Lamund Smith was convicted of injury to an elderly individual and 
2

the jury assessed his punishment at thirty years’ confinement.

1

 On appeal, 

appellant argues that the trial court abused its discretion when it denied his motion 

for new trial based on allegations of juror misconduct, and that the court erred by 

refusing to allow him to make an offer of proof regarding such allegations pursuant 

to Texas Rule of Evidence 103(b).

2

 We affirm.

Background3

Appellant filed a timely motion for new trial alleging that two jurors4

approached his trial counsel immediately after the trial and informed him that they 

believed that appellant was “not guilty” of the charged offense. Both Juror 1 and 

Juror 2 claimed that they “had been coerced by other jurors to reach a guilty

verdict in which they did not concur.” Appellant further contended that the 

“improper conduct” of the other jurors resulted in a non-unanimous verdict. 

 1 See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2013).

2 TEX. R. EVID. 103(b). 

3 Appellant was found guilty of intentionally or knowingly causing bodily injury

to an elderly individual by striking that individual with a brick or concrete block. 

Trial testimony indicates that the charged offense occurred after an automobile 

accident involving the elderly complainant’s car and the car appellant was riding 

in. The charge allowed the jury to convict appellant either as the principal or as a 

party. Because appellant’s appellate complaints are focused exclusively upon 

post-trial events (i.e., allegations of jury misconduct, as set forth in his motion for 

new trial, and events which transpired at the hearing on his motion for new trial), 

it is not necessary for us to detail the facts underlying the charged offense.

4 We will refer to these jurors as “Juror 1” and “Juror 2” for purposes of this 

opinion.
3

Affidavits from both jurors attesting to the underlying facts were attached to the 

motion and incorporated by reference. 

Juror 1’s affidavit stated as follows:

While serving as juror on [this case] I was able to come to the 

conclusion that [appellant] was not guilty of the accused crime. 

While I was not the only juror that felt this way he was still 

convicted. Upon thoroughly reviewing the facts presented in the 

case, I was able to conclude that being in the wrong place at the 

wrong time does not equate [to] guilt. The prosecution failed to 

establish beyond a reasonable doubt that [appellant] struck [the 

complainant] with a brick and or concrete block. I was pressured 

into agreeing to a guilty verdict from the other jurors. I was told “I 

wasn’t doing my civic duties by letting [appellant] walk free.” Not 

only was I being bashed by them for not agreeing on a guilty 

verdict, the dispute of the case was also being discussed [by]

othe[r] jurors in the room before all evidence was presented. After 

hours of debating my facts against theirs we all came to a 

conclusion of what I thought would be a conviction of [appellant] 

being in the wrong place at the wrong time, but not being guilty of 

the crime of throwing a deadly weapon at the [complainant]. 

Minutes after the verdict was read, I was shortly informed that was 

not the case. [Appellant] is not guilty of the crime he was 

convicted for!

Juror 2’s affidavit stated as follows:

This is reference to the trial of [appellant]. I felt like I was 

pressured into giving a guilty verdict. My fellow jurors were very 

selective about the evidence they used to convict [appellant]. The 

majority of them had already convicted him before even hearing 

the evidence, for their own personal reasons, which some of them 

voiced. I tried to argue my side of the story or my opinion 

concerning the evidence, but they were determined to convince me 

that he was guilty. It was myself and two other jurors that 

questioned the guilty verdict, but we were outnumbered. I feel like 

[appellant] was unjustly convicted. I deeply feel he was falsely 
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accused of the crime he was on trial for. I honestly and strongly 

feel that he was innocent of the crime he was on trial for.

The trial court heard appellant’s Motion for New Trial—forty-two days after 

the judgment was signed—at which hearing appellant’s counsel offered the 

affidavits from the two jurors into evidence, and told the court that he would also 

be calling appellant’s previous counsel to testify. The trial court then questioned 

appellant’s counsel about the admissibility of the affidavits, in light of Rule 606(b) 

and expressly stated: “I’ve read the affidavits, but I have also read 606(b). . . . And 

the affidavits don’t say anything about an outside influence.” See TEX. R. EVID. 

606(b) (stating that juror’s statements regarding jury deliberations are inadmissible 

for purpose of impeaching jury verdict, but may be admitted for limited purpose of 

showing whether any outside influence was improperly brought to bear upon any 

juror or to rebut claim that juror was not qualified to serve).5

 

Appellant responded that Juror 2’s affidavit averred that some jurors had 

made their minds up as to appellant’s guilt before they heard all of the evidence

and argued that fact this amounted to an “outside influence.” The trial court 

disagreed, and asked counsel if he had anything further to add, and appellant’s 

 5 The original Texas Rule of Civil Procedure 606(b) is, for all purposes relevant to 

this case, indistinguishable from the current Rule 606(b), which applies in both 

civil and criminal trials. See McQuarrie v. State, 380 S.W.3d 145, 151–52 (Tex. 

Crim. App. 2012) (stating that when civil and criminal rules of evidence merged in 

1998, Texas Rule of Evidence 606(b) incorporated civil version of rule).
5

counsel asked to “make a bill offering some testimony of trial counsel.”6 The State 

objected and argued that both the affidavits and trial counsel’s testimony were 

inadmissible under Texas Rule of Evidence 606(b) because there was no allegation 

that any “outside influence” had been improperly brought to bear upon any juror. 

The State also objected that trial counsel’s testimony was inadmissible hearsay. 

After considering the motion, the affidavits, and the arguments of counsel, the trial 

court implicitly sustained the State’s objection, and expressly denied appellant’s

request to make an offer of proof and his motion for new trial. This appeal 

followed.

Offer of Proof 

Appellant argues that the trial court erred when it denied his request to make 

an offer of proof after the trial court excluded the affidavits and trial counsel’s 

testimony, and he asks this Court to abate the appeal to allow him to make his offer 

of proof, and to file any necessary supplemental briefing. The State responds that 

even if the trial court erred in not allowing appellant to make his offer of proof, the 

error was harmless, and that abatement at this stage is futile because the Court has 

all of the information it needs to determine whether the trial court erred in 

excluding the testimony.

 6 “Texas recognizes two types of offers to preserve error: the offer of proof 

(formerly referred to as an informal bill of exception) and the formal bill of 

exception.” Fletcher v. Minn. Min. and Mfg. Co., 57 S.W.3d 602, 606 (Tex. 

App.—Houston [1st Dist.] 2001, pet. denied) (citations omitted). 
6

A. Standard of Review

The right to make an offer of proof is absolute and a trial court does not have 

the option to deny such a request. Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. 

App. 1994); Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988). A trial 

court’s refusal to allow a defendant an opportunity to make an offer of proof, 

however, is subject to harmless error analysis. Williams v. State, 964 S.W.2d 747, 

753 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (reviewing erroneous 

refusal to allow party to make offer of proof under Texas Rule of Evidence 103); 

TEX. R. EVID. 103(a), (a)(2) (stating that “[e]rror may not be predicated upon a 

ruling which admits or excludes evidence unless a substantial right of the party is 

affected, and . . . the substance of the evidence was made known to the court by 

offer, or was apparent from the context within which questions were asked”); see 

also Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (stating that 

standard of review under Rule 103 is same as standard for non-constitutional error 

under Texas Rule of Appellate Procedure 44.2(b)); TEX. R. APP P. 44.2 (providing 

that non-constitutional errors in criminal cases “must be disregarded” if they do not 

affect defendant’s substantial rights).

B. Analysis

“The primary purpose of the offer of proof is to enable an appellate court to 

determine whether the exclusion [of evidence] was erroneous and harmful. A 
7

secondary purpose is to permit the trial judge to reconsider his ruling in light of the 

actual evidence.” Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) 

(citation omitted). Here, although the trial court refused to admit the affidavits that

set forth the specific facts supporting appellant’s claim of juror misconduct and 

coercion, the record clearly reflects that the trial court considered their content 

before he determined that they were inadmissible because they were not within one 

of Rule 606(b)’s limited exceptions (i.e., the existence of an “outside influence” 

that was improperly brought to bear upon a juror). The affidavits that appellant 

sought to admit were attached to his motion for new trial and incorporated by 

reference, and are included in the appellate record. Even assuming that the trial 

court erred in refusing appellant’s request to make an offer of proof, any error was 

harmless because it is apparent from the record what appellant was attempting to 

establish by introducing the affidavits. See Williams, 964 S.W.2d at 753 (stating 

trial court’s refusal to allow defendant’s offer of proof regarding excluded 

testimony was harmless because it was clear from record “exactly what [defendant] 

wanted to preserve for appeal”); cf. Pennington v. Brock, 841 S.W.2d 127, 131 

(Tex. App.—Houston [14th Dist.] 1992, no writ) (trial court’s refusal to allow 

informal bill of exception harmless when record was sufficient to apprise both trial 

court and appellate court of nature of excluded evidence).
8

To the extent appellant is challenging the trial court’s refusal to allow him to 

make an offer of proof regarding the exclusion of his trial counsel’s testimony—as 

opposed to the exclusion of the affidavits themselves—we find such an argument 

unavailing. Appellant alleged in his motion for new trial that two jurors “had been 

coerced by other jurors to reach a guilty verdict in which they did not concur” 

and that such improper conduct resulted in a non-unanimous “guilty” verdict. 

Because the hearing on appellant’s motion for new trial was held more than 

thirty days after the judgment was signed, appellant was only entitled to 

present testimony in support of that ground. See TEX. R. APP. P. 21.4(a) (stating 

defendant may file motion for new trial no later than thirty days after date trial 

court imposes or suspends sentence in open court); Cueva v. State, 339 S.W.3d 

839, 859 (Tex. App.—Corpus Christi 2011, pet. ref’d) (“[A] defendant may not 

amend or enlarge his original motion with additional claims after the thirty-day 

period has expired[.]”). Thus, trial counsel could have testified only about what 

Juror 1 and Juror 2 told him about what happened during deliberations (i.e., the 

alleged “coercion” and “improper conduct” by the other members of the jury, as 

set forth in the affidavits attached to the motion for new trial). Moreover, if trial 

counsel had testified about what Juror 1 and Juror 2 told him about what occurred 

during deliberations, his testimony would have been inadmissible hearsay. See

TEX. R. EVID. 802 (stating hearsay is not admissible), 801(d) (defining “hearsay” 
9

as “a statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted”); see also

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369 (Tex. 2000) (stating 

there was no competent non-juror evidence of misconduct in that case because 

attorney’s testimony “concerning what the jurors told him another juror said” was 

hearsay); Mitchell v. S. Pac. Transp. Co., 955 S.W.2d 300, 322–23 (Tex. App.—

San Antonio 1997, no writ) (holding non-juror’s affidavit about what occurred in 

jury deliberations was hearsay).

Accordingly, any error in refusing to allow appellant an opportunity to make 

an offer of proof regarding his trial counsel’s testimony is also harmless. See 

Williams, 964 S.W.2d at 753 (indicating refusal to allow offer of proof harmless 

because record sufficient to preserve complaint for appeal).

C. Abatement

Although the standard remedy for such an error is to abate the appeal to 

permit counsel to develop the appellate record, abatement in the present case 

would be futile because the appellate record, as it currently stands, is sufficient for 

this Court to determine whether the trial court erred in excluding the affidavits and 

testimony. See Spence, 758 S.W.2d at 599–600 (stating that when trial court 

erroneously refuses defendant’s request to make offer of proof, remedy for such 

error is to abate appeal to permit counsel to make offer of proof and develop 
10

appellate record); Andrade v. State, 246 S.W.3d 217, 226 (Tex. App.—Houston 

[14th Dist.] 2007, pet. ref’d) (refusing defendant’s request to abate appeal due to 

erroneous denial of opportunity to make offer of proof because defendant did not 

argue on appeal that trial court erred in excluding testimony and therefore 

abatement “would serve no purpose as it would not result in the development of 

any information relevant to this appeal”).

Appellant argues that, unlike in Andrade, abatement in this case would not 

be futile because it would enable him to develop “relevant evidence that his due 

process rights were in fact violated.” Since appellant raised no due process claim 

in the trial court, he has not preserved such a claim for appellate review. See Clark 

v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (holding that evidentiary 

objections at trial did not present trial court with opportunity to rule on due process

claim raised on appeal, thus due process claim was forfeited).

Exclusion of Evidence

Appellant argues that the trial court abused its discretion when it excluded 

the affidavits of Juror 1 and Juror 2 and trial counsel’s testimony and denied his 

motion for new trial based on allegations of juror misconduct contained within 

those affidavits.
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A. Standard of Review and Applicable Law

We review a trial court’s rulings on a motion for new trial and on the 

admission or exclusion of evidence for an abuse of discretion. See Martinez v. 

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (admission or exclusion of 

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

for new trial). In conducting our review, we may not substitute our judgment for 

that of the trial court. Holden, 201 S.W.3d at 763. Rather, we decide only whether 

the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its 

discretion in denying a motion for new trial only when no reasonable view of the 

record could support the trial court’s ruling. Id. A trial court abuses its discretion 

by excluding evidence only if its decision “lies outside the zone of reasonable 

disagreement.” Martinez, 327 S.W.3d at 736.

Juror statements regarding jury deliberations are generally inadmissible to 

attack a verdict. TEX. R. EVID. 606(b); see also Glover v. State, 110 S.W.3d 549, 

551 (Tex. App.—Waco 2003, pet. ref’d) (stating allowing jurors to impeach their 

own verdict violates public policy). A juror may, however, testify after trial about 

whether an outside influence was improperly brought to bear upon any juror or to 

rebut a claim that the juror was not qualified to serve. TEX. R. EVID. 606(b). The 

Court of Criminal Appeals interprets this rule using a plain meaning approach, 

determining that an “outside influence” must originate from outside of the jury 
12

room, and not from the jurors themselves. See McQuarrie v. State, 380 S.W.3d 

145, 151 (Tex. Crim. App. 2012) (citing Golden Eagle Archery, Inc., 24 S.W.3d at 

372)). As such, alleged coercive activity in the jury room during deliberations is 

not proof of an impermissible “outside influence” for purposes of showing jury 

misconduct pursuant to Rule 606(b). See Colyer v. State, 428 S.W.3d 117, 125 

(Tex. Crim. App. 2014) (discussing circumstances involving “outside influence”

and stating “outside influence” exception does not include influences such as 

coercion by fellow juror); Franks v. State, 90 S.W.3d 771, 800 (Tex. App.—Fort 

Worth 2002, no pet.) (holding juror’s affidavit testimony that she was “coerced”

into voting guilty and “finally just gave up and changed her vote” because other 

jurors “told her she was being unreasonable and was crazy” did not constitute 

“outside influence” for purposes of Rule 606(b)); Hart v. State, 15 S.W.3d 117, 

122, 124 (Tex. App.—Texarkana 2000, pet. ref’d) (holding juror’s affidavit 

testimony that he was “coerced” into voting guilty did not constitute “outside 

influence” for purposes of Rule 606(b)); see also Perry v. Safeco Ins. Co., 821 

S.W.2d 279, 281 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (“Proof of 

coercive statements and their effect on the jury is barred by [Rule 606(b)].”)

B. Analysis

Here, because they relate exclusively to events and conversations which took 

place in the jury room and among the jurors themselves, and they do not allege the
13

exertion of any “outside influence,” as interpreted by the Texas Court of Criminal 

Appeals, appellant’s proffered affidavits are inadmissible under Rule 606(b). 

In particular, Juror 1 testified that she was bashed by the other jurors for her 

views of the case and pressured by them to find appellant guilty. Such claims of 

coercion by other jurors do not fall within Rule 606(b)’s exception for testimony 

regarding “outside influences.” See Colyer, 428 S.W.3d at 125 (stating Rule 

606(b)’s “outside influence” exception does not include influences such as 

coercion by fellow jurors). The same is true with respect to Juror 2’s testimony 

that she was outnumbered and was pressured by the other jurors to find appellant 

guilty. See id. 

Juror 1’s and Juror 2’s testimony regarding the jurors’ differing views of the 

evidence, as discussed during deliberations, as well as Juror 1’s claim that some 

jurors discussed the case before all of the evidence was presented, and Juror 2’s 

claim that other jurors “were very selective about the evidence they used to 

convict” appellant and had decided that appellant was guilty before they heard all 

of the evidence, do not speak to any “outside influence” and are inadmissible under 

Rule 606(b). See id. at 123 (stating Rule 606(b) prohibits jurors from testifying 

“about any events or statements occurring during jury deliberations, any of the 

jurors’ mental processes, or how an improper outside influence actually affected 

the jurors”); see also McQuarrie, 380 S.W.3d at 153 (“The court may not inquire 
14

as to the subjective thought processes and reactions of the jury, so jurors should 

continue to feel free to raise and discuss differing viewpoints without the fear of 

later public scrutiny.”). Similarly, Juror 2’s testimony that some of the jurors 

decided that appellant was guilty based on their own “personal reasons, which 

some of them voiced,” does not constitute an impermissible outside influence, and 

is also inadmissible. See Colyer, 428 S.W.3d at 125 (stating outside influence 

exception does not include discussion of juror’s own personal knowledge) (citing 

Soliz v. Saenz, 779 S.W.2d 929, 932 (Tex. App.—Corpus Christi 1989, writ

denied) (stating juror’s interjection of personal experience or expertise into 

discussion not an “outside influence”)).

Accordingly, the trial court did not abuse its discretion when it excluded the 

affidavits and trial counsel’s testimony on the same topic. See Martinez, 327 

S.W.3d at 736 (stating trial court abuses its discretion by excluding evidence only 

if its decision “lies outside the zone of reasonable disagreement”). Further, the 

affidavits and trial counsel’s testimony were the only evidence appellant offered in 

support of his motion for new trial based on juror misconduct. Given that the trial 

court did not abuse its discretion when it excluded the affidavits and trial counsel’s 

testimony, we cannot say that the trial court’s decision to deny the motion for new 

trial was arbitrary or unreasonable. See Holden, 201 S.W.3d at 763 (stating trial 
15

court abuses its discretion in denying motion for new trial only when no reasonable 

view of record could support trial court’s ruling).

We overrule appellant’s issues on appeal.

Conclusion

We affirm the trial court’s judgment.

Jim Sharp

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).