White, Natalie

IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. PD-0118-06 NATALIE WHITE, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY Johnson, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., joined. Price, J., filed a concurring opinion. O P I N I O N Appellant plead guilty to the charge of intoxication manslaughter, and the jury sentenced her to nine years' incarceration. Her motion for new trial was overruled. On appeal, appellant raised a number of issues, including a claim that the trial court had abused its discretion by denying appellant's new trial motion. The Sixth Court of Appeals affirmed the trial court's judgment. White v. State, 181 S.W.3d 514 (Tex. App.-Texarkana 2005). We granted appellant's ground for review (1) that complained that the court of appeals erred in affirming the trial court's denial of the opportunity to present evidence of harm caused by the service on the jury of two statutorily disqualified jurors. We affirm. At the hearing on the motion for new trial, appellant and the state stipulated that there were pending theft charges against two of the jurors in this case. Both jurors, Jones and Giddings, testified at the hearing. They both indicated that, at the time of jury service, they were unaware of any pending theft-by-check charges against them. In response to the state's objection, the trial court allowed appellant's counsel to make a bill of exception based on the questions that he wished to ask the challenged jurors, but did not permit counsel to record the jurors' answers to those questions. On direct appeal, appellant asserted that the trial court violated her right to due process of law when it denied her requests to present testimony and to make a bill of exception regarding the harm she suffered from the seating of those two "absolutely disqualified" jurors. The Sixth Court of Appeals noted that the United States Supreme Court had upheld Federal Rule 606(b) in a challenge to that rule's preclusion of juror-misconduct testimony (2) and that the Texas Supreme Court (3) and several Texas courts of appeals, (4) including the Sixth Court of Appeals, (5) had each previously held that the general prohibition on juror testimony pursuant to Texas Rule 606(b) is constitutional. It concluded that Rule 606(b) is not unconstitutional as applied to appellant in this case. White v. State, 181 S.W.3d at 522-26. Tex. R. Evid. 606(b) provides that, "[u]pon 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." However, Rule 606(b) also provides that "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." Appellant notes that, on its face, Rule 606 allows a juror to testify concerning whether any outside influence was improperly brought to bear upon any juror and to rebut a claim that the juror was not qualified to serve, and argues that "[t]he service of a disqualified juror introduces into a jury's deliberation 'outside influence'-that is, the influence of a person who is absolutely excluded by law from the jury room." Appellant also suggests that Texas law allows the state and the defendant to waive all other grounds for challenge to prospective jurors "except those that are essential to 'insure the probity of the jury.'" DeBlanc v. State, 799 S.W.2d 701, 707 (Tex. Crim. App. 1990). Tex. Code Crim. Proc. article 35.19 provides for an absolute disqualification from jury service, as "[n]o juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent." Tex. Code Crim. Proc. article 35.16 lists several reasons for challenges for cause. The second, third and fourth of those listed reasons are: 2. That the juror has been convicted of misdemeanor theft or a felony; 3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony; 4. That the juror is insane[.] Article 35.16(a) repeats the prohibition in Article 35.19, saying that "[n]o juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent." Tex. Code Crim. Proc. article 44.46 clearly and unambiguously provides that a criminal conviction may be reversed on appeal on the ground that a juror was absolutely disqualified from service under Article 35.19 only if: (1) the defendant raises the disqualification before the verdict is entered; or (2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror. Appellant argues that significant harm is shown by the mere presence of the two absolutely disqualified jurors participating in jury deliberations and decision-making. (6) The state argues that Rule 606(b) limits post-verdict juror testimony to testimony relating to outside influence. It points to language specifically forbidding a juror from testifying "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." It also asserts that Rule 606(b)'s exception to allow a juror to testify whether any outside influence was improperly brought to bear upon any juror does not apply because the two jurors in question were not outside influences. In Nelson v. State, 129 S.W.3d 108, 112 (Tex. Crim. App. 2004), this Court stated that Article 44.46(2) "puts a burden on the defendant to meet a new standard of harm . . . when the disqualification is raised after the entry of the verdict." Although it makes no difference who discovers the disqualification or how it is brought to the trial court's attention, "[a] duty on the defendant arises in an appeal to make a showing of significant harm." Id. "A defendant may have his conviction reversed on appeal, even though he did nothing before the verdict was entered, but only if he meets a high standard that Article 44.46(2) raises on appeal." Id. Because of this clause, "the defendant is discouraged from waiting until after the verdict to begin thinking about the problem of a disqualified juror." Id. Although appellant argues that the presence of the two "absolutely disqualified" jurors participating in the deliberations was itself such an "outside influence," we are unconvinced. Rule 606(b) states that 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. . . . However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror . . .. The plain language of the Rule 606(b) indicates that an outside influence is something outside of both the jury room and the juror. A number of our courts of appeals have so ruled. See, e.g., Kendall v. Whataburger, 759 S.W.2d 751, 755 (Tex. App.-Houston [1st Dist.] 1988, no writ); Hines v. State, 3 S.W.3d 618, 623 (Tex. App.-Texarkana 1999, pet. ref'd); Tinker v. State, 148 S.W.3d 666, 673 (Tex. App.-Houston [14th] 2004, no pet.). We are also unconvinced by appellant's contention that the challenged jurors' mere presence was "significant harm" and that holding otherwise, coupled with the prohibitions in Rule 606(b), would preclude any possible avenue for discovering whether these jurors caused substantial harm, would deny her due process of law, and would call into question the constitutionality of Article 44.46. The United States Supreme Court has held that, while juror testimony is barred under Rule 606(b), "a party may seek to impeach the verdict by non-juror evidence of misconduct." Tanner v. United States, 483 U.S. 107, 127 (1987). Likewise, Texas Rule 606(b) does not prevent appellant from demonstrating such "significant harm" by use of non-juror evidence. Appellant has failed to carry her burden under Article 44.46(2). We conclude that the court of appeals did not err in affirming the trial court's refusal to permit testimony from the challenged jurors, and we overrule appellant's ground for review. Accordingly, we affirm the judgment of the court of appeals. Delivered: June 6, 2007 Publish 1. "The Court of Appeals erred in affirming the trial court's order denying Petitioner the opportunity to present evidence of significant harm caused by the service of two absolutely disqualified jurors on the basis of Texas Rule of Evidence 606." 2. Tanner v. United States, 483 U.S. 107 (1987). 3. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). 4. See, e.g., Easly v State, 163 S.W.3d 839 (Tex. App.-Dallas 2005, no pet.); State v. Ordonez, 156 S.W.3d 850 (Tex. App.-El Paso 2005, no pet.); State v. Lewis, 151 S.W.3d 213 (Tex. App.-Tyler 2004, pet. ref'd); Sanders v. State, 1 S.W.3d 885 (Tex. App.-Austin 1999, no pet.). 5. Hines v. State, 3 S.W.3d 618 (Tex. App.-Texarkana 1999, no pet.). 6. She also argues that there was an overwhelming temptation for the two jurors to seek the favor of the prosecutor. The state asserts that, at the time of trial, those jurors were "blissfully unaware of the misdemeanor theft-by-check charges." That may have been true of Jones, but Giddings testified that, at a "jury qualification proceeding," a separate hearing at which neither appellant nor her counsel was present, Giddings told the judge presiding that she knew that she had been accused of theft and that she believed (without apparent basis) that the charge had been dismissed.