IN THE

TENTH COURT OF APPEALS

No. 10-06-00191-CR

Joe Dale Lynch,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 211th District Court

Denton County, Texas

Trial Court No. F-2005-0921-C

            A jury convicted Joe Dale Lynch of evading arrest in a vehicle, elevated by a prior evading arrest conviction to the level of a third degree felony.  The jury assessed his punishment at ten years’ imprisonment.  Lynch contends in his sole issue that the court abused its discretion by denying his motion for new trial premised on juror misconduct.  We disagree and will affirm.

            Article 36.22 of the Code of Criminal Procedure provides in pertinent part, “No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”  Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 2006).  “The defendant must be granted a new trial  .  .  .  when a juror has talked with anyone about the case.”  Tex. R. App. P. 21.3(f).

            The defendant bears the burden of proving that a juror talked with another person about the case.  See Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000); Stults v. State, 23 S.W.3d 198, 206-07 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  When the defendant satisfies this burden, harm is presumed.  See Hughes, 24 S.W.3d at 842; Stults, 23 S.W.3d at 206.  However, the State may rebut this presumption by showing “that the case was not discussed” or “nothing prejudicial to the accused was said.”  Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985); see also Stults, 23 S.W.3d at 206 (State may “rebut this presumption by showing no injury or prejudice”).

            Here, an allegation that Lynch had attempted to contact the juror in question was called to the trial court’s attention after voir dire and before opening statements.  The attorneys asked that the juror be brought into the courtroom for questioning.  The juror testified that, after voir dire the day before, he went to the store his family owns in Sanger.  His father told him that Lynch knows him.[1]  As the juror explained, “[W]e are real well known in Sanger.”  He further testified that this was the full extent of the conversation and that nothing said would affect his ability to serve as a juror.  Lynch did not object at that time to this juror continuing to serve.  However, he raised the issue in his motion for new trial.

            We will assume without deciding that Lynch made a sufficiently timely complaint regarding this juror’s service by raising the issue in his motion for new trial.  See Tex. R. App. P. 33.1(a)(1) (“timely request, objection, or motion” required to preserve error).  However, the only evidence in the record regarding the extent of the juror’s conversation with his father is that they did not discuss the facts of the case.

            Their conversation is similar in scope to that considered by the Court of Criminal Appeals in Chambliss v. State, 647 S.W.2d 257 (Tex. Crim. App. 1983).  In Chambliss, a juror approached the victim’s sister during a trial break, introduced himself as a juror in the trial, and asked if he could get her address sometime later.  Id. at 263-65.  He testified that he did so because he felt badly for her because her brother had been murdered in their community and he wanted to apologize for what had occurred   Id. at 265.  They did not discuss the facts of the case, and he stated that his conversation with the victim’s sister played no role in his deliberations.  Id.  The Court of Criminal Appeals held that this was not a conversation “about the case.”  See id. at 266.

Here, there is nothing in the record to suggest that the juror discussed the facts of Lynch’s case with his father.  Although we do not condone their conversation, we hold that the conversation was not “about the case” for purposes of article 36.22 or Rule 21.3(f).  Id.  Accordingly, we overrule Lynch’s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment only, without a separate opinion)

Affirmed

Opinion delivered and filed August 8, 2007

Do not publish

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