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Neilv. Biggers, 409 U.S. 188, 93 S.(3t. 375, 34 L.Ed.2d. 401 (1975).
JESSIE Dm, No. 68,577, Voluntary mlaughter, Aff 'd, Judge Odm, 10/26/83.
JURY MIS&ONDUC!F-DISCUSSI OF PAROLE IAW-iWNTOE REVISTIFD: D contended that discussion
of the parole law during jury deliberations constituted the receipt of other evidence
by the jury after it had retired to deliherate, entitling him to a new trial under
Art. 40.03(7) C.C.P. and such discussion constituted jury misconduct depriving him of
a fair an3 bprtial trial under Art. 40.03(8) C.C.P.
At the hearing on D's motion for new trial, D introduced Cheverier's affidavit into
evidence which basically stated that m of the jurors were talking about if the jury
gave him 20 years he muld be out in 6 or 7 years, that this juror said it was wrong
to talk ahout that type of theory but the only reason he consented to 20 years was
that he haped that D would get out in 6 or 7 years on parole, that if it had not been
for these statements he would not have voted to give him 20 years. At the hearing,
however, this smne juror testified he did not base his decision upon D getting out
in 6 or 7 years, that that part of his affidavit was untrue or at least not in his
own words. The court concluded that the trial judge, having the right to accept or
reject any part of the juror's testirrony, obviously accepted the juror's statanents
at the hearing over his affidavit attached to the motion for new trial, and in light
of the juror's testimony it could not be concluded that the IT: abused its discretion
in overruling D's motion for new trial under either Art. 40.03(7) or (8) C.C.P.
The court noted that in Munroe, 637 S.W.2d 475 a five judge majority expressed the
view that cases dealing with jury discussion of parole laws is appropriately analyzed
as jury misconduct under Art. 40.03 (8) ; however, no majority view coalesced with respect
to receipt of other evidence under Art. 40.03 (7) C.C.P. The court declined to follow
the plurality expressions in Part I1 of Muwce and the court held that either section
of the article my apply to the jury's discussion of parole laws, depending upon the
a facts of the case. Heredia, 528 S.W.2d 847, 852.
Under this record there is nothing to indicate a juror related any personal knowledge
of a particular case from which the jury tried to figure out the parole law. Such a
statement is referred to in the juror's affidavit cannot be construed as "other
teshny" der Art. 40.03 (7).
Under Art. 40.03(8) jury discussion of parole laws is always misconduct; whether the
same constitutes such error as to mandate reversal depends upon the particular circum-
stances of each case. Sanders, 580 S.W.2d 349.
EX PA- i%RCUS IWXQZ, No. 69,114, Opinion on State's &@tion For Rehearing: Denied,
Judge OdQn, En Banc, 9/28/83.
V A U Y DEFECTIVE THEFT dl? SERVICE INDIcIMEWT: Although not expressed in the
language of Sec. 31.04 P.C., the injured party is an elemst of theft of service.
'Enxi an indictment for theft of service mst allege the provider of services, i.e.,
the injured party.
February 1984/VOICEfor the Defense SD-19