John Paul Ortega, Jr. v. State
John Paul Ortega, Jr. v. State
Opinion
FRY V. STATE
NO. 07-08-0245-CR
NO. 07-08-0246-CR
NO. 07-08-0247-CR
NO. 07-08-0248-CR
NO. 07-08-0249-CR
NO. 07-08-0250-CR
NO. 07-08-0251-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 24, 2008
______________________________
JOHN PAUL ORTEGA, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108th DISTRICT COURT OF POTTER COUNTY;
NOS. 52,879-E, 54,034-E, 54,569-E, 54,570-E, 54,571-E, 54,863-E, 55,917-E;
HON. ABE LOPEZ, PRESIDING
_______________________________
ORDER OF DISMISSAL
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, John Paul Ortega, Jr., appeals his convictions for possession of a controlled substance, cruelty to animals, aggravated assault against a public servant (2), robbery, aggravated assault with a deadly weapon and sexual assault of a child. The certification of right to appeal in each case executed by the trial court states that this “is a plea bargain case and the defendant has no right of appeal.” This circumstance was brought to the attention of appellant, who is acting pro se, and opportunity was granted him to obtain an amended certification entitling appellant to appeal each case. No such certification was received within the time we allotted. However, appellant filed a motion requesting that counsel be appointed. Having received no amended certification, we dismiss the appeals per Texas Rule of Appellate Procedure 25.2(d). Accordingly, appellant’s motion for appointed counsel is denied as moot.
Per Curiam
Do not publish.
does not dispute that unadmitted exhibits were sent to the jury room when the jury began their deliberations. It initially argues that whether the jury "received" the evidence is a fact question for the trial court. It also argues that there was no evidence that the jury failed to follow the court's instruction to disregard the evidence. However, the record does not support these arguments. We agree that the mere presence of the exhibits in the jury room does not necessarily mean that they were "received" within the meaning of Rule 21.3(f). See Gibson v. State, 29 S.W.3d 221 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). However, here, the affidavit of a member of the jury that the contents of those exhibits were discussed at the punishment phase is evidence that the members of the jury had seen the exhibits and were aware of their contents. That evidence distinguishes the facts of this case from those before the court in Gibson, supra (denial of new trial affirmed when there was no evidence jurors were aware of the contents of improper exhibits). Because there is no evidence contradicting the juror's affidavit, no factual dispute in that regard was presented for the trial court's resolution.
In support of its position that we must presume the jury followed the trial court's instruction to disregard, the State cites Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998), and Lincicome v. State, 3 S.W.3d 644, 647 (Tex. App.-Amarillo 1999, no pet.). However, those cases are distinguishable. In neither case was there additional evidence received after the jury's deliberations had begun. In each of the cases, the challenge was based upon evidence that the jury was considering impermissible factors related to the assessment of punishment. In this case, to presume that a limiting instruction cures any error would require us to disregard the holding in Rogers v. State, supra. See also Alexander v. State, 610 S.W.2d 750, 753 (Tex. Crim. App. 1980); and State v. Scott, 819 S.W.2d 169, 170 (Tex. App.-Tyler 1991, pet. ref'd) (both holding law is well settled that if adverse evidence is received by jury during deliberations, the courts will not speculate as to its probable effect).
Additionally, even if the trial court's instruction could have cured the error originally, the uncontroverted affidavit showing the contents of the improper exhibits were discussed at punishment is evidence that the jury did not follow the court's prior instruction to wholly disregard the exhibits. Parenthetically, the State did not challenge this evidence.
The State next argues that the comments made by jurors at the punishment phase were not "other evidence," but were simply "passing remarks" that would not require a new trial. See Stephenson v. State, 571 S.W.2d at 176; Broussard v. State, 505 S.W.2d 282, 285 (Tex. Crim. App. 1974). However, appellant does not contend that the jurors' comments at punishment were the "other evidence" prohibited by Rule 21.3 (2) In this case, the jurors' statements were merely evidence that 1) the jurors were aware of the contents of the unadmitted exhibits, and 2) the jurors had not followed the trial court's prior instruction to disregard the exhibits. Under this record, appellant established that the jury received other evidence within the meaning of Rule 21.3(f) after their deliberations had begun.
The exhibits in question are not a part of the record on appeal. The juror's affidavit set out above is the only evidence by which we can evaluate whether it was adverse to appellant. The affidavit shows that at least one exhibit connected appellant with drug use and prostitution. The unnamed juror's comment that this showed appellant "did not associate with good people" is sufficient to show the evidence was adverse to appellant. 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.
Accordingly, the judgment of the trial court is reversed and the cause remanded to that court for retrial.
John T. Boyd
Senior Justice
Johnson, J., concurs.
Do not publish.
Before JOHNSON, C.J., REAVIS, J. AND BOYD, S.J. (3)
I concur with the majority based on Rogers v. State, 551 S.W.2d 369 (Tex.Crim.App. 1977), and its progeny.
The State asserts that a harm analysis pursuant to Tex. R. App. P. 44.2. should be applied to the alleged error by the trial court in failing to grant a new trial. But for the rule explicated by Rogers, I would agree with the State.
The Court of Criminal Appeals has stated that except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," errors are not immune from harmless error analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). As an intermediate court, however, we properly defer to the Court of Criminal Appeals to modify the standard by which we review the effect of "other evidence" received by the jury from that explicated by Rogers, should the Court of Criminal Appeals choose to do so.
Phil Johnson
Chief Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2002).
2. Comments by jurors can be other evidence in some circumstances. See Bearden v. State, 648 S.W.2d 688, 692 (Tex. Crim. App. 1983).
3. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
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