William David Wilson v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-232 CR ____________________ WILLIAM DAVID WILSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR25305 MEMORANDUM OPINION Appellant, William David Wilson, appeals his conviction for having committed the felony offense of Unlawful Possession of a Firearm. See Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2005). Two prior convictions included in Wilson's indictment raised his punishment to a second degree felony. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2005). The jury assessed Wilson's punishment at twenty years imprisonment and a $10,000 fine. Wilson presents two issues for review. The first contends the trial court abused its discretion in denying Wilson's motion for new trial and motion for arrest of judgment "when the testimony clearly showed jury misconduct in failing to follow the Court's instructions concerning parole." The second issue argues the evidence was insufficient to prove the "rifle" admitted into evidence was a firearm. The record reflects that following his conviction, Wilson timely filed a motion for new trial and arrest of judgment alleging, inter alia, "[a]n outside influence was improperly brought to bear upon members of the jury," and "[b]ecause of this outside influence members of the jury awarded a more severe punishment." Included in the record are affidavits from three of the jurors. Each affidavit contained explicit information with regard to the jury's punishment deliberations and an explanation as to how the jury reached Wilson's twenty-year prison sentence. At the hearing on Wilson's motion for new trial, only one of the three jurors who provided affidavits was present to testify. Prior to the juror's testimony, the State lodged an objection based upon Tex. R. Evid. 606(b) and essentially argued that the testimony was entirely inadmissible. During the juror's testimony, the State again objected to the trial court's making any use of the affidavits or the testimony of the juror, as both evidenced the jury's "deliberative mental processes." In its reply brief, the State contends that while the trial court did not err in denying Wilson's motion for new trial, the trial court did err in permitting the juror to testify about the jury's punishment deliberations and in making any use of the three juror affidavits. At the outset, we address Wilson's issue claiming juror misconduct; Wilson relies on juror testimony and affidavits. The State objected to the trial court's consideration of that evidence. Malley v. State, 9 S.W.3d 925, 927 (Tex. App.--Beaumont 2000, pet. ref'd). We find the plain language of Tex. R. Evid. 606(b) to be dispositive here. It reads as follows: (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. In the instant case, although Wilson's motion for new trial was couched in terms of "outside influence," the contents of the three affidavits consist entirely of matters involving the formal punishment deliberations, specifically the possible effects of parole on Wilson's period of incarceration. This is a topic the jury was expressly instructed not to consider in deliberating the proper punishment for Wilson. See also Tex. Code Crim. Proc. Ann. art. 37.07, § 4(c) (Vernon Supp. 2005). While this fact may amount to juror misconduct under Tex. R. App. P. 21.3(g) supporting grounds for the granting of a new trial, evidence of such misconduct "must come from some source other than a fellow juror's testimony about deliberations." See, e.g., Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 371 (Tex. 2000). Because the only evidence of the misconduct during formal punishment deliberations was from the jurors themselves, it was entirely incompetent for the intended purpose of impeaching the jury's punishment verdict. The trial court erred in admitting such evidence and we decline to consider it as it could not support a ruling in Wilson's favor under the circumstances presented. See generally City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005) (incompetent evidence legally insufficient to support a judgment). Wilson's first issue is overruled. Issue two avers the evidence was insufficient to prove the rifle in question was a firearm. Under this issue, Wilson provides no case authority so as to better inform us under what appellate standard we should examine this issue. His brief appears to indicate, and we so find, that there was both legally and factually sufficient evidence to support the fact that appellant was seen carrying a sack containing a rifle. See Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). The State specifically asked Sergeant John Coleman of the Dayton Police Department, the officer who observed Wilson carrying the sack containing the rifle, if the rifle he recovered when Wilson fled the scene was a firearm, to which Coleman replied, "Yes, sir, it is." Wilson made no objection to this testimony. On appeal, Wilson frames this issue in the following manner: Officer Coleman, during direct examination, testified that the "rifle is a firearm." The record is absent any evidence qualifying the "rifle" as a firearm. The Court in it's [sic] charge defined "firearm" as ". . . any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." This is the same definition found in the Texas Penal Code at [46.01](3). . . . . Notwithstanding the various cases that indicate a rifle is a firearm, Appellant argues to the Honorable Court that not all rifles are firearms. . . . [T]he fact remains that merely calling a rifle a firearm does not meet the threshold of the statute. . . . . . . . [S]ince the Penal Code defines "firearm" and since the Court defined "firearm[,]" there should be some evidence or testimony that the rifle introduced in this case actually falls within the definition of the Penal Code, and absent any testimony as such, the evidence is insufficient to support a conviction. (citation to record omitted). Wilson provides no case or statutory authority to support his very particularized assertion. He acknowledges the existence of "various cases" which have found a rifle to be a firearm. See, e.g., DeAnda v. State, 769 S.W.2d 522, 523-24 (Tex. Crim. App. 1989) (Rifle is a type of firearm). Although cogent and directly applicable to the issue raised, this is apparently not the specific argument Wilson is intending to urge upon us. While an appellant may make a novel or unique argument for which there is no authority directly on point, he must ground his contention in analogous case law or provide the reviewing court with the relevant jurisprudential framework for evaluating his claim. Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Issue two is overruled, and the judgment of the trial court is affirmed. AFFIRMED. ___________________________ CHARLES KREGER Justice Submitted on December 1, 2005 Opinion Delivered March 29, 2006 Do not publish Before McKeithen, C.J., Kreger and Horton, JJ.