Reversed and Remanded and Majority and Dissenting Opinions filed August 

29, 2019.

In the

Fourteenth Court of Appeals 

NO. 14-17-00785-CR

ZAID ADNAN NAJAR, Appellant 

v. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 338th District Court 

Harris County, Texas 

Trial Court Cause No. 1503083 

MAJORITY OPINION 

The ultimate issue in this appeal concerns whether the jury followed the trial 

court’s charge: “During your deliberations in this case, you must not consider, 

discuss, nor relate any matters not in evidence before you. You should not consider 

nor mention any personal knowledge or information you may have about any fact 

or person connected with this case which is not shown by the evidence.” As a 

society, we generally balance the need for confidentiality in jury deliberation 
2

versus the integrity of the jury trial in favor of jury confidentiality. 

We also generally presume the jury follows the court’s charge. This appeal 

presents a rare instance in which what occurred during deliberation is open for 

review. And because the uncontroverted evidence is the jury did not follow the 

court’s charge and considered outside evidence that was adverse on a critical issue, 

we must reverse. 

A jury found appellant Zaid Adnan Najar guilty of the third-degree felony of 

fleeing, using a vehicle, from a peace officer who was attempting lawfully to 

detain him. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A).1 The trial court 

assessed punishment at ten-years imprisonment, suspended the sentence, and 

placed appellant on four-years community supervision. In two issues, appellant 

asserts the trial court erred in denying his motion for new trial based on (1) other 

evidence received by the jury during deliberation and (2) a claim of ineffective 

assistance of counsel regarding his trial counsel’s advice on the immigration 

consequences of the State’s plea offer. Because we find the trial court erred in 

denying appellant’s motion for new trial, we reverse the trial court’s judgment and 

remand the case for further proceedings.2

 

1 Vernon’s Texas Codes Annotated Penal Code contains an editorial note which suggests 

that the legislature has enacted two versions of Penal Code section 38.04(b)(1), (2). While this is 

not a contested issue in this appeal, and we make no explicit holding, it nonetheless appears that 

only one version of subsection 38.04(b)(1), (2) exists. See Act of May 23, 2011, 82d Leg., R.S., 

ch. 391, § 1, 2011 Tex. Gen. Laws 1046, 1046, amended by Act of May 24, 2011, 82d Leg., 

R.S., ch. 839, § 4, 2011 Tex. Gen. Laws 2010, 2011, amended by Act of May 27, 2011, 82d 

Leg., R.S., ch. 931, § 3, 2011 Tex. Gen. Laws 2321, 2322.

2 A defendant’s general right to appeal under Code of Criminal Procedure article 44.02 

has always been limited to appeal from a “final judgment.” State v. Sellers, 790 S.W.2d 316, 321 

n.4 (Tex. Crim. App. 1990). Although appellant argues the trial court’s error was in denying his 

motion for new trial, we may only reverse the judgment being appealed and not merely the order 

denying the motion for new trial.
3

BACKGROUND

A. Appellant’s Arrest 

On March 17, 2016, at approximately 10 p.m., Officer Bachar of the 

Houston Police Department observed a white Ford Mustang driving at 100 miles 

per hour in the far-left lane of the I-610 freeway in the Galleria area. Bachar also 

noticed flashing red-and-blue lights emanating from the vehicle. At first glance, 

Bachar thought the vehicle was a law enforcement vehicle because of the flashing 

lights. However, upon a closer look, he realized it was a private vehicle. At that 

point, Bachar turned on his own emergency equipment, which included flashing 

lights and a siren. Bachar followed the vehicle for approximately two miles before 

the vehicle pulled over. During that time, the vehicle’s driver cut across three lanes 

of traffic into the far-right lane. Bachar testified that he believed the driver was 

going to exit the freeway at this point; however, the driver then went back across 

the three lanes of traffic until the vehicle was again in the far-left lane. At no time 

did the vehicle’s driver use his turn signals to indicate lane changes. When Bachar 

was within twenty-five feet of the vehicle, it came to a sudden stop in the righthand shoulder of the freeway. Bachar then approached the vehicle and identified 

appellant as the driver. 

B. Trial 

During her opening statement, appellant’s trial counsel emphasized that 

appellant was already driving over 100 miles per hour when Bachar turned on his 

lights and siren. Counsel pointed out that appellant’s vehicle was surrounded by 

other vehicles on the freeway for the two-mile period during which Bachar 

attempted to signal to appellant to pull over. Counsel further emphasized that it 

was not until Bachar was within close range of appellant that appellant 

immediately decelerated. Bachar was the only witness to testify. Both the State and 
4

appellant’s trial counsel asked Bachar questions directed to illuminate whether 

appellant knew that Bachar was attempting to pull him over. In closing, appellant’s 

trial counsel argued that appellant “did not realize that [sic] officer was trying to 

pull him over until the second the officer got behind him.” The State argued that 

appellant’s weaving between lanes and speeding made it clear he knew he was 

being pulled over. Ultimately, the jury was left to determine whether appellant was 

aware that Bachar was attempting to detain him. 

After briefly deliberating, the jury returned with a guilty verdict. 

C. Post-trial 

Attorneys for the State and for appellant interviewed the jury after 

announcement of the verdict. One of the jurors informed the attorneys that while 

they were in the jury room deliberating, they heard a siren coming from outside on 

the street fifteen floors below. The members of the jury reasoned that if they could 

hear the siren while inside the building, appellant should have been able to hear the 

officer’s siren while in his vehicle. The juror said this reasoning was used by the 

jury as a whole in finding appellant guilty of the charged offense. 

Appellant filed a motion for new trial arguing that (1) the jury received 

adverse outside evidence during deliberation and (2) appellant received ineffective 

assistance of counsel. The trial court held a hearing on the motion. Before 

appellant and the State presented their arguments, appellant’s counsel offered 

affidavits from appellant’s trial counsel and co-counsel in which each attorney 

recounted the jury’s comments regarding hearing a siren while deliberating. 

Appellant’s counsel pointed out that the State agreed with the “factual basis of the 

affidavit” and that there was solely a “dispute on the law.” Counsel for the State 

replied, “that’s correct.” And when asked by the trial court whether the State had 

any objections to the affidavits, the State’s counsel replied, “no objections, your 
5

honor.” The court admitted the affidavits into evidence. Appellant’s counsel then 

presented his arguments on the two issues. After which, the State responded by 

arguing that the allegations in the affidavit did not constitute an “outside 

influence.”3

After listening to arguments and reviewing the affidavits presented by both 

parties, the trial court denied the motion for new trial on both grounds. On appeal, 

appellant argues the trial court erred in denying his motion for new trial on the 

same grounds he raised in his motion for new trial.

ANALYSIS

A. Other Evidence 

In his motion for new trial, appellant argued that Texas Rule of Appellate 

Procedure 21.3(f) required that the trial court grant him a new trial because the 

siren heard by the jury constituted “other evidence.” See Tex. R. App. P. 21.3(f) 

(defendant must be granted new trial when, after retiring to deliberate, the jury has 

received other evidence). The trial court denied appellant’s motion, concluding that 

the jurors could have drawn on their “general experience of hearing sirens.” 

1. Standard of Review 

Ordinarily, the grant or refusal of a motion for new trial is committed to the 

discretion of the trial court. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. 

App. 2012). However, Texas Rule of Appellate Procedure 21.3(f) provides that a 

defendant must be granted a new trial when, after retiring to deliberate, the jury has 

 

3 The dissent argues this was sufficient to preserve an objection based on Texas Rule of 

Evidence 606(b), as it references the language used in that rule. See Tex. R. Evid. 606(b). We 

disagree. The State’s complaint regarding “outside evidence” was not presented until after the 

affidavit was admitted into evidence and after appellant’s counsel made his arguments. 

Moreover, the State never made a formal objection to the affidavit at any time during the 

hearing.
6

received other evidence. Tex. R. App. P. 21.3(f). To be entitled to a new trial under 

this provision, the movant for new trial must show both: (1) the jury received other 

evidence and (2) the evidence was detrimental. Gibson v. State, 29 S.W.3d 221, 

224 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). At a hearing on the motion 

for new trial, the trial judge is the trier of fact and the sole judge of the credibility 

of the witnesses. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). If there 

is no fact issue that the jury received other evidence, and the evidence was adverse 

to the defendant, then reversal is required. Rogers v. State, 551 S.W.2d 369, 370 

(Tex. Crim. App. 1977). 

2. Analysis 

Appellant contends that during the new-trial hearing the State conceded that 

the “receipt” prong of the applicable two-part test has been met. At the hearing, 

appellant provided an affidavit from his trial counsel stating the following: 

During our conversation with the jury, one of the jurors told us that 

during their deliberations, while they were in the jury room, the 

members of the jury heard a siren outside on the street, and that the 

fact they could hear the siren from inside the jury room influenced 

their verdict. They believed that if they could hear a siren from inside 

the building, that [appellant] could have heard an officer’s siren inside 

his car.

The State’s counsel affirmed that it agreed with the factual basis of this affidavit, 

specifically that the “conversation with the jury took place.” The State neither 

contested that the jury heard and discussed the siren while deliberating, nor that the 

members of the jury had relied on their ability to hear the siren in finding appellant 

guilty. Further, the State did not present evidence to counter trial counsel’s 

affidavit. Because there is no evidence contradicting trial counsel’s unobjected-to 

affidavit, no factual dispute in that regard was presented for the trial court’s 

resolution. This satisfies the “receipt” prong of the test. See Alexander v. State, 610 
7

S.W.2d 750, 751–52 (Tex. Crim. App. [Panel Op.] 1980) (where testimony as to 

what occurred in jury room is not controverted and shows that jury during 

deliberation received other and new evidence, then there is no issue of fact for trial 

court’s determination); Rogers, 551 S.W.2d at 370 (holding unless there was fact 

issue raised on whether jury actually received other evidence, former Code of 

Criminal Procedure article 40.03(7)4

 required reversal if evidence was adverse to 

defendant); Carroll v. State, 990 S.W.2d 761, 762 (Tex. App.—Austin 1999, no 

pet.) (no conflicting evidence that jury received “other evidence” during 

deliberation). 

We consider the character of the evidence in light of the issues before the 

jury in our determination of the “detrimental” prong of the test. Alexander, 610 

S.W.2d at 753; Carroll, 990 S.W.2d at 762. One (if not, the) central issue in this 

evading-detention case was whether appellant was aware that Bachar was 

attempting to detain him. Appellant’s counsel argued that appellant was not aware 

he was being pulled over until appellant came to an abrupt stop when Bachar 

narrowed down the distance between his vehicle and appellant’s vehicle. 

Appellant’s ability to hear Bachar’s siren was critical to the issue of whether 

appellant knew he was being signaled by Bachar to pull over. The siren heard by 

the members of the jury sitting inside on the fifteenth-floor of a building—while 

they were deliberating on whether appellant was in fact evading detention from an 

officer with an activated siren—was detrimental to appellant in their resolution of 

 

4 Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 3, § 5, art. 40.03, 1973 Tex. Gen. 

Laws 1122, 1127–28, repealed by Tex. R. App. P.30(b)(7), 11 Tex. Reg. 1939, 1944, 49 Tex. 

B.J. 558, 564 (Tex. Crim. App. Apr. 10, 1986, eff. Sept. 1, 1986); see Act of May 27, 1985, 69th 

Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472, 2472 (authorizing promulgation of Texas 

Rules of Appellate Procedure and repeal of portions of Code of Criminal Procedure); see also In 

re M.A.F., 966 S.W.2d 448, 450 n.1 (Tex. 1998) (discussing history of and “almost identical 

language in” former article 40.03(7) and its successors former Texas Rule of Appellate 

Procedure 30(b)(7) and current rule 21.3(f)).
8

this issue. See Deary v. State, 681 S.W.2d 784, 788 (Tex. App.—Houston [14th 

Dist.] 1984, pet. ref’d) (statement by juror concerning his experience in paying 

more than $200.00 for a cassette player “was detrimental to the appellant because 

his guilt on the felony charge depended upon whether the value of the cassette 

player exceeded $200.00”). As stated in trial counsel’s affidavit, the jury’s ability 

to hear the siren from fifteen floors above led the members of the jury to believe 

that appellant must have heard Bachar’s siren, but deliberately ignored it in an 

attempt to evade detention. This is supported by the uncontested affidavit provided 

by trial counsel stating, “that the fact they could hear the siren from inside the jury 

room influenced their verdict.”5 Rule 21.3(f) mandates reversal when the jury 

received other evidence that was detrimental. Carroll, 990 S.W.2d at 762; see 

Rogers, 551 S.W.2d at 370. Consequently, the trial court lacked discretion to deny 

appellant’s motion for new trial. For this reason, we sustain appellant’s first issue.6

 

5 The State argues that Texas Rule of Evidence 606(b) prohibited the trial court from 

considering evidence inquiring into the validity of the jury’s verdict because the siren heard by 

the jury does not fall within the outside-influence exception. See Tex. R. Evid. 606(b) 

(prohibiting jurors from testifying about any statement made or incident that occurred during 

jury’s deliberation, except where outside influence was improperly brought to bear on any juror). 

The State did not, however, object to the evidence on this or any other ground and therefore has 

waived its complaint. See Lee v. State, 816 S.W.2d 515, 517 (Tex. App.—Houston [1st Dist.] 

1991, pet. ref’d) (State waived rule 606(b) argument on appeal when it failed to make such 

objection in hearing below). The State instead expressly stated it had “[n]o objections” to 

appellant’s evidence. Accordingly, an analysis under rule 606(b), as proffered by the State, is not 

applicable under the circumstances.

6 The dissenting opinion disputes that the siren here functioned as other evidence based 

on an average juror’s “common knowledge of the sound of a siren” and on the frequency of 

sirens heard in downtown Houston. However, this position ignores the unique circumstances in 

this case. This was not a jury merely hearing busy downtown sounds while deliberating. Nor was 

it a jury merely drawing on general common knowledge of sirens. Rather, the jury focused on 

one particular siren it heard while deliberating; thus, the jury discussed and considered 

information it received about a fact connected with this case which was not shown by the trial 

evidence. This was contrary to the court’s charge, and it was used to resolve a critical issue in 

appellant’s case against him and in favor of the State.

The issue in this appeal is not whether a criminal conviction should be reversed because 
9

There is no additional requirement to show harm. See Alexander, 610 

S.W.2d at 753 (“[T]his Court will not speculate on the probable effects on the jury 

or the question of injury.”); Hunt v. State, 603 S.W.2d 865, 869 (Tex. Crim. App. 

[Panel Op.] 1980) (“The State’s contention that appellant must show harm by the 

jury’s receipt of this ‘other evidence’ is without merit.”); Deary, 681 S.W.2d at 

788 (“We need not consider, nor would it be proper to consider, [juror’s] statement 

that [other juror’s] comments made [him] change his mind to vote guilty.”). This is 

because the statutory provision applied here was designed by the Legislature to 

guarantee the integrity of the fundamental right to trial by jury by restricting the 

jury’s consideration of evidence to that which is properly introduced during the 

trial. Rogers, 551 S.W.2d at 370. To adequately safeguard that right from erosion, 

the Legislature in its wisdom created a per se rule, and it is the duty of this court to 

follow such mandate. See Alexander, 610 S.W.2d at 753 (citing Rogers, 551 

S.W.2d at 370 (interpreting rule 21.3(f)’s predecessor statute, former Code of 

Criminal Procedure article 40.03(7), to require reversal without conducting harm 

analysis)); see also Garza v. State, 630 S.W.2d 272, 276 (Tex. Crim. App. [Panel 

Op.] 1981) (op. on reh’g) (declining to conduct harm analysis under predecessor 

statute); Molina v. State, No. 07-00-0029-CR, 2003 WL 141641, at *4 (Tex. 

App.—Amarillo Jan. 21, 2003, pet. ref’d) (“Because appellant established both 

elements necessary to show his entitlement to a new trial under Rule 21.3(f), we 

must, and do, sustain his issue.”); McGary v. State, 658 S.W.2d 673, 674–75 (Tex. 

App.—Dallas 1983, pet. ref’d) (declining to conduct harm analysis under 

predecessor statute); Chew v. State, 804 S.W.2d 633, 638–39 (Tex. App.—San 

Antonio 1991, pet. ref’d) (same); Shivers v. State, 756 S.W.2d 442, 444–45 (Tex. 

App.—Houston [1st Dist.] 1988, no pet.) (same); Deary, 681 S.W.2d at 788 

 

the jury heard a siren in downtown Houston while deliberating. The issue is whether the jury 

followed the court’s charge. 
10

(same).7 

CONCLUSION

We reverse the trial court’s judgment and remand the case for further 

proceedings. Tex. R. App. P. 43.2(d).8

 

 

 /s/ Charles A. Spain 

 Justice

Panel consists of Justices Christopher, Bourliot, and Spain. (Christopher, J., 

dissenting.)

Publish. Tex. R. App. P. 47.2(b). 

 

7 The Carroll court acknowledged that “[r]ule 21.3(f) mandates a new trial,” but also 

alternatively analyzed harm “[a]ssuming the constitutional harmless analysis applies.” 990 

S.W.3d at 762–63. We decline to do so.

8 We do not reach appellant’s argument on ineffective assistance of counsel because of 

our disposition of appellant’s first issue (reverse and remand for further proceedings). See Tex. 

R. App. P. 47.1.