McQuarrie v. State
McQuarrie v. State
Dissenting Opinion
OPINION
filed a dissenting opinion in which
I respectfully dissent. The statements in the juror affidavits offered in this case may constitute “extraneous prejudicial information” under Federal Rule 606(b), but the Texas Supreme Court deliberately did not adopt that exception to the general prohibition against jurors impeaching their own verdict in Texas Rule of Evidence 606(b). We do not have the authority to read that exception into the rule by ourselves.
Historically, once an English trial was over, the advocates commenced to “try the jury,” by harassing and cajoling them into admitting .that they or another juror had misbehaved in some respect during the trial. This practice came to an abrupt end when Lord Mansfield declared, in 1785, that English courts could not consider juror affidavits or testimony attesting to their own misconduct during jury deliberations.
Early Texas decisions followed Lord Mansfield’s prohibitory rule religiously,
Rule 606(b) serves several important public policy interests. First, as the United States Supreme Court has stated, it protects jurors from harassment:
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication, and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something that might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might- establish misconduct sufficient to set aside a verdict.8
Second, it protects the sanctity of the jury deliberation room and thereby encourages the jurors to engage in full and frank discussions.
At bottom, the best justification for Rule 606(b) prohibiting jurors from impeaching their own verdicts is that the rule protects a good system that cannot be made perfect. As the Supreme Court stated, “There is little doubt that postverdict in
On the other hand, the rule exacts great costs as well. Verdicts that are based upon information and opinions that have not been introduced into evidence, a misunderstanding of the applicable legal principles, or the influence of threats or bribes are unfair to the losing party.
Because of the high cost of insulating a verdict tainted by irregularity, Federal Rule 606(b)
The first, “extraneous prejudicial information,” refers to any information that is “conveyed to the jury through extrarecord sources,”
The second exception, an “outside influence” improperly brought to bear on a juror, refers to those blatant, subtle, or even unconscious acts by outsiders to affect the verdict or interfere with the deliberations. In simple terms, it refers to jury tampering.
The drafters of the Texas Rules of Civil Evidence recommended that the Supreme Court adopt Federal Rule 606(b) verbatim, thus including the two exceptions to the general prohibition against juror affidavits or testimony to attack the validity of the verdict.
I respectfully dissent.
. Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785).
. Id.
. See 8 John Wig,more, Evidence § 2352 (McNaughton rev. 1961).
. See St. Louis S.W. Ry. Co. v. Ricketts, 96 Tex. 68, 70 S.W. 315, 317 (1902) (stating that court had "uniformly denied the competency” of juror affidavits or testimony to attack the jury’s verdict based on claims of "irregularities and improprieties of different kinds”; rejecting juror affidavits that said foreman told deliberating jurors that he had lived near depot that was subject of litigation and that it was not heated or lit, thus plaintiffs’ testimony was true and defendant’s witnesses’ conflicting testimony was false).
. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 367 (Tex. 2000) (discussing the history of Tex.R. Evid. 606(b)).
. 1 C. McCormick & R. Ray, Texas Law of Evidence § 397, at 338 n. 73 (2d ed. 1956).
. See id. § 394, at 332.
. McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1300 (1915).
. Id. at 267-68, 35 S.Ct. 783 (discussing need to prevent "what was intended to be private deliberation” from being made subject to public scrutiny "to the destruction of all frankness and freedom of discussion”).
. See Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987) (noting that a "fruitful exchange of ideas and impressions among jurors” depends upon "some assurance that what is said in the jury room will not reach a larger audience”).
. Tanner v. United States, 483 U.S. 107, 120, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (allegations of juror misconduct during deliberations would "seriously disrupt” finality).
. Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947) (Judge Learned Hand) ("[I]t would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court. It is doubtful whether more than one in a hundred verdicts would stand such a test; and although absolute justice may require as much, the impossibility of achieving it has induced judges to take a middle course, for they have recognized that the institution could not otherwise survive; they would become Penelopes, forever engaged in unravell-ing the webs they wove. Like much else in human affairs, its defects are so deeply enmeshed in the system that wholly to disentangle them would quite kill it.”).
. See United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976) (purpose of rule is to prevent "fraud by individual jurors who could remain silent during deliberations and later assert that they were influenced by improper considerations”).
. Id.
. Tanner, 483 U.S. at 120, 107 S.Ct. 2739.
. 1 Steven Goode et al„ Guide to the Texas Rules of Evidence: Civil and Criminal, § 606.2, at 535 (Tex. Prac. Series 1993).
. Federal Rule 606(b) reads as follows:
(b) During an Inquiry Into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations: the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C)a mistake was made in entering the verdict on the verdict form.
. A third exception, whether “a mistake was made in entering the verdict on the verdict form,” was adopted in 2006 to permit juror affidavits and testimony to prove a clerical error in recording the verdict. See Fed. R.Evid. 606(b) advisory committee's note on 2006 amendments.
. 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 249, at 70 (2d ed. 1994) ("Mueller”).
. Id. at 71.
. See, e.g., Mattox v. United States, 146 U.S. 140, 149-51, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (trial judge erred in excluding juror affidavits admitting to reading a newspaper article during deliberations stating that defendant had been tried for his life once before, that the evidence against him was very strong, that the argument of the prosecution was such that
. Id.
. Id.
. Rule 606(b) of the Texas Rules of Criminal Evidence read 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 course of the jury’s deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify as to any matter relevant to the validity of the verdict or indictment. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
This rule was deceptively worded and internally contradictory. First, it prohibits the jurors from testifying to any matter occurring during its deliberations and then it contains an exception that states that jurors may testify as to anything relevant to the validity of the verdict. That exception completely swallowed the rule and “was the source of much confusion[.]”
. See Stebner v. Assoc. Materials, Inc., 356 Mont. 520, 234 P.3d 94, 98 (2010) (juror's affidavit admitting that she conducted and shared internet research on the term "preponderance” prior to jury reaching verdict in breach of warranty case could be considered in deciding whether her research constituted extraneous prejudicial information that was improperly brought to jury’s attention; concluding that it was not prejudicial and did not affect jury’s verdict); cf. State v. Patino, 207 N.C.App. 322, 699 S.E.2d 678, 684 (2010) ("Extraneous prejudicial information is 'information dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence.’ Dictionary definitions of legal terms researched and read to the jury by the foreperson are not extraneous prejudicial information and cannot be used to impeach a jury’s verdict.”) (citations omitted).
. McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915) (while the prohibition against post-verdict juror affidavits or testimony “may often exclude the only possible evidence of misconduct, a change in the rule 'would open the door to the most pernicious arts and tampering with jurors.’ 'The practice would be replete with dangerous consequences.' 'It would lead to the grossest fraud and abuse' and 'no verdict would be safe.’ ”) (citations omitted).
. See Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) ("In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial”); Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947) ("bribery” of juror is a matter on which juror affidavits may be received).
. See United States v. Greer, 620 F.2d 1383, 1385-86 (10th Cir. 1980) (jurors could testify to lunch break conversation with deputy marshal who told them about terms and effects of Youth Corrections Act and different types of possible sentencing).
. See S. Goode et al. supra note 16, § 606.2, at 540. Professors Goode, Wellborn, and Sharlot explain, "As proposed by the Liaison Committee, Texas Civil Rule 606(b) would have contained both the 'extraneous prejudicial information' and ‘outside influence’ exceptions.”
. Id.
. Goode et al., supra note 15, § 606.3, at 193 (2001 Supp.) ("New Rule 606(b) changes dramatically the extent to which jurors may testify concerning the validity of a criminal verdict or indictment.... Presumably, the Court of Criminal Appeals decided to align criminal practice with civil practice.”); see Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref’d) ("[T]he rule in civil cases is now the rule in criminal cases: jurors may testify only to whether any outside influence was brought to bear upon a juror.”); In re S.P., 9 S.W.3d 304, 308-09 (Tex.App.-San Antonio 1999, no pet.) (noting that courts in criminal cases should look to civil cases for guidance on what constitutes an "outside influence"; jury’s discussion about the thickness of defendant’s probation file, which was not introduced into evidence, was not an "outside influence”).
Opinion of the Court
OPINION
delivered the opinion of the Court in which
Appellant, Thomas McQuarrie, was convicted of sexual assault. See Tex. Penal Code § 22.011(a)(1)(A). The trial court denied Appellant’s motion for new trial, which alleged that the jury, after having retired to deliberate, received other evidence not then admitted by the court that was detrimental to Appellant’s case. The Thirteenth Court of Appeals affirmed, holding that the trial court properly excluded the jurors’ affidavits and testimony pursuant to Texas Rule of Evidence 606(b) and that Rule 606(b) was constitutional. McQuarrie v. State, 2011 WL 1442335, 2011 Tex.App. LEXIS 2859 (Tex.App.-Corpus Christi Apr. 14, 2011) (mem. op., not designated for publication). We reverse the judgment of the court of appeals.
I. BACKGROUND
Appellant was indicted for the sexual assault of Lisetta Camarillo.
Camarillo testified that she and Appellant “were buddies” who “just hung out.” She stated that she never had a romantic interest in him and never flirted with him. She also denied discussing having sex with him. Camarillo additionally testified that she had been dating the same woman for four years, that it had been ten years since she had a sexual interest in a male, that she had not had a romantic relationship with a male since she was 14 or 15 years old, and that she was a virgin before the sexual intercourse with Appellant. Ca-marillo described the thought of having sex with a man as “[disgusting; nasty; just uncomfortable.”
On Friday, April 16, 2006, Camarillo spent all day at her aunt’s house with family and friends. She explained that they were barbecuing and drinking. That afternoon, Appellant and his friend came over and invited her to Appellant’s parents’ house where they were staying.
After Camarillo went to sleep, Appellant laid down beside her. According to Appellant, Camarillo put her hand on his stomach, and they started kissing and rubbing each other. After about ten minutes of touching, Appellant got up, took his shorts off, and got a condom. Appellant testified that when he came back, he got on top of Camarillo, pulled her shorts to the side, and had sexual intercourse with her. He stated that Camarillo was awake and coherent throughout the encounter. During a later interview with police, Appellant admitted to having sexual intercourse with Camarillo and claimed it was consensual. He also denied giving Camarillo any date rape drugs.
In contrast, Camarillo testified that when she woke up, she “felt dirty,” and she “realized that there was only one cover, and [her] shorts and stuff were pushed over and up, and [she] just didn’t feel ... right.” Camarillo testified that she did not remember anything occurring after she fell asleep, and she neither gave Appellant permission to have sex with her nor voluntarily had sex with Appellant.
On Saturday morning, Camarillo left Appellant’s house and went to her aunt’s house. She explained that she “really didn’t know what happened,” but she “knew something was wrong.” Several witnesses testified to Camarillo’s distraught emotions and her explanation of
A patrol officer testified that he thought it was “kind of strange” that a female who only drank a little bit of beer and smoked a joint of marijuana would stay asleep during sexual intercourse. He also testified that it was possible that Camarillo had been drugged and that such drugs go out of the system quickly, making them difficult to test for.
At trial after both sides rested, the charge was read to the jury. The jury had been instructed at the outset of the trial that “[t]he evidence you can consider in this case will only be testimony which you hear in court and any physical exhibits which are offered and admitted into evidence before you.” This was reiterated in the jury charge:
During your deliberations in this case, you must not consider, discuss, or relate any matters not in evidence before you. You should not consider or mention any personal knowledge or information you may have about any fact or person connected with this case which is not shown by the evidence.
At the end of the first day of deliberations, the jurors sent a note indicating that they were split nine votes to three in favor of guilt. The court gave the jurors the option of continuing their deliberations that night or returning in the morning. When they decided to resume deliberations in the morning, the court instructed them that “[i]t’s very important that you remember my instructions not to discuss this case among yourselves, nor allow anyone else to discuss it with you.” The court also emphasized that the next morning, “When there’s 12 of you [in the jury room], you can start deliberating. Can’t deliberate until there’s 12 of you there.”
The jurors returned the next morning and deliberated for an hour before finding Appellant guilty. The court assessed Appellant’s punishment at four years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.
Subsequently, Appellant filed a motion for new trial, arguing that he was entitled to a new trial because the jury, after having retired to deliberate, received other evidence not then admitted by the court that was detrimental to his case. See Tex. R.App. P. 21.3(f) & (g). At the hearing on the motion, Appellant offered the affidavits of two jurors, Kevin LaFleur and Frank Jiral, who affirmed that a third juror had researched the effects of date rape drugs when the jury was released for the night and that she had relayed that information to the rest of the jury the next morning. LaFleur stated that the third juror, Opal Touchard, informed the jury that the date rape drugs would last up to 72 hours and that the side effects would last for up to a week. Jiral stated that he was still undecided when they returned for deliberations on the second day, and the information provided by the third juror, who he identified as the only woman on the jury, changed his mind. Jiral also stated that the information had changed the mind of the third juror. The trial court determined that the affidavits did not show an outside influence
II. COURT OF APPEALS
On direct appeal, Appellant argued, inter alia, that he was deprived of his rights
The court of appeals held that the trial court properly excluded the jurors’ affidavits and testimony under Rule 606(b). Id. at *5-6, 2011 Tex.App. LEXIS 2859, at *15-17. Relying on its prior decision in Soliz v. Saenz, 779 S.W.2d 929 (Tex.App.-Corpus Christi 1989, pet. denied), the court reasoned that the jurors’ affidavits showed no evidence of outside influence because the information was gathered by a juror and introduced to the other jurors by that juror. The court of appeals also held that the application of Rule 606(b) was constitutional and did not violate Appellant’s right to a fair trial. McQuarrie, 2011 WL 1442335, at *6-7, 2011 Tex.App. LEXIS 2859, at *17-19. The court presumed that the rules approved by the Supreme Court and the Court of Criminal Appeals are constitutional. Id. at *6, 2011 Tex.App. LEXIS 2859, at *17 (citing Luquis v. State, 72 S.W.3d 355, 365 (Tex.Crim.App. 2002)).
We granted Appellant’s petition for discretionary review to analyze whether the court of appeals violated his federal and state “constitutional trial rights to confrontation and cross-examination by upholding the trial court’s exclusion, pursuant to Rule 606(b) Tex.R. Evid., of juror testimony and affidavits offered for purposes of [Appellant’s] motion for new trial on the ground that a juror conveyed to other jurors harmful information obtained from her internet research during an overnight break in deliberations.”
III. ARGUMENTS OF THE PARTIES
A. Appellant’s Arguments
Appellant contends that the juror misconduct in a criminal prosecution in actively seeking additional information not admitted into evidence cannot and should not be protected under any rule that generally protects the sanctity of the jury’s deliberations. He argues that the exclusion of the affidavits reflecting that misconduct denied him of his constitutional rights to confrontation and cross-examination and so infected the entire trial process that due process and due course of law require that he receive a new trial.
Appellant urges this court to re-examine the language relied upon by the court of appeals. He contends that Rule 606(b) was not intended to eliminate post-trial questioning altogether. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370, 372 (Tex. 2000). He also argues that the language relied upon is contrary to the plain language of the rule itself because, in application, it denies the right to a fair trial and condones similar violations in the future. Accordingly, Appellant avers that the juror evidence should be allowed in this instance because the misconduct was not part of deliberations — it occurred at home, during an overnight break. He further claims that the internet has few guarantees of accuracy and provides extraneous information beyond the common knowledge that most jurors are presumed to possess.
B. State’s Arguments
The State responds that information gathered by a juror that is shared with the other jurors does not constitute outside influence, even if it is shared specifically to influence the other jurors’ votes. See Hines v. State, 3 S.W.3d 618, 623 (Tex. App.-Texarkana 1999, pet. ref'd). The
The State further argues that, without competent evidence in the record to show any juror misconduct, Appellant cannot establish any violation of his state or federal constitutional rights. Even so, the State maintains that Rule 606(b) is constitutional because, rather than prohibiting a defendant from proving jury misconduct, it merely limits the method by which a defendant may prove that misconduct.
IV. ANALYSIS
We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). “We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court’s decision was arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006); see Salazar, 38 S.W.3d at 148. A trial court abuses its discretion in denying a motion for new trial when no reasonable view of the record could support the trial court’s ruling. Holden, 201 S.W.3d at 763; Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004).
Boykin requires appellate courts to construe a statute in accordance with the plain meaning of its literal text unless the language of the statute is ambiguous or the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). However, Boy-kin’s holding does not apply to our interpretation of the Rules of Evidence. Henderson v. State, 962 S.W.2d 544, 551 (Tex.Crim.App. 1997). In construing those rules, we may consider extra-textual sources even absent ambiguity or absurd results. Lopez v. State, 253 S.W.3d 680, 685 (Tex.Crim.App. 2008). Still, “we should attempt to effectuate the plain language absent important countervailing considerations. Hence, the plain language is a good place to begin.” Henderson, 962 S.W.2d at 552.
Texas Rule of Evidence 606(b) prohibits a juror from testifying about “any matter or statement occurring during the jury’s deliberations,” with two exceptions. Tex.R. Evid. 606(b).
Although this Court has acknowledged the general rule that Rule 606(b) permits juror testimony relating to improper outside influence,
The court of appeals concluded that information must be communicated from someone other than a juror in order to be considered an “outside influence,” but such a definition is far more narrow than the plain meaning of the rule requires. The court’s narrow interpretation undermines Rule 606(b)’s clear exception to reveal outside influences “improperly brought to bear upon any juror” by effectively excluding anything that is communicated to the jury by one of the jurors, regardless of the origin of that information. As the Texas Supreme Court has emphasized, Rule 606(b) was “not intended to eliminate post-trial questioning altogether.” Id.
In reaching its holding, the court of appeals gave special consideration to its own precedent and the opinions of other intermediate appellate courts. McQuarrie, 2011 WL 1442335, at *5-6, 2011 Tex.App. LEXIS 2859, at *14-17. That line of cases is based on the following language from Baley v. WfW Interests, Inc.:
An ‘outside influence’ must emanate from outside the jury and its deliberations. It does not include all information not in evidence, unknown to the jurors prior to trial, acquired by a juror and communicated to one or more other jurors between the time the jurors received their instructions from the court and the rendition of the verdict. To constitute ‘outside influence’ the source of the information must be one who is outside the jury, i.e., a non-juror, who introduces the information to affect the verdict. Information gathered by a juror and introduced to other jurors by that juror — even if it were introduced specifically to prejudice the vote — does not constitute outside influence.
Baley v. W/W Interests, Inc., 754 S.W.2d 313, 316 (Tex.App.-Houston [14th Dist.] 1988) (citations omitted), reversed on other grounds by Golden Eagle, 24 S.W.3d at 371-72.
But the reasoning in Baley and its characterization of “outside influence” is unworkable. As the dissent in Baley originally articulated, “By defining outside influence in the narrowest of terms, thereby precluding judicial inquiry into blatant and impermissible jury conduct, the majority denies appellants their right to a fair trial and, unwittingly, condones similar violations in the future.” Id. at 321 (Ellis, J., dissenting). The potential for absurd results is clear. To illustrate, under the narrow definition, if a juror in a DWI trial sneaks out to the defendant’s car during the lunch break and sees a bottle of whiskey on the passenger seat, that is not an outside influence. But if a third party tells the juror about the whiskey bottle, that would be an outside influence.
Moreover, the history of Rule 606(b) does not require a more narrow construction of outside influence than our plain-meaning interpretation. “By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimo
In 1983, the Texas Supreme Court adopted Rule of Civil Evidence 606(b). The new rule was based on Federal Rule of Evidence 606(b), which prohibited jury testimony to impeach a verdict with two exceptions.
Debate exists as to the significance of the omission of the “extraneous prejudicial information” exception in Texas Rule of Evidence 606(b). The Texas Supreme Court has explained,
Our Court did not explain the significance of its decision to reject an exception for extraneous prejudicial information [in 1983], leaving scholars to speculate whether the Texas rules are more restrictive than the federal rule. Compare Addison, Conduct Unbecoming a Jury: Rule 606(b), 50 Tex. Bar J. 872, 872 (1987) (stating that the Texas rule is more restrictive), with Black, supra 20 HOUS. L. REV. at 423 (concluding that^the federal exceptions for “extraneous prejudicial information” and “outside influences” are largely redundant).
Golden Eagle, 24 S.W.3d at 368; see also Salazar v. Dretke, 419 F.3d 384, 402 n. 30 (5th Cir.Tex. 2005) (“The practical effect of this difference [between the Federal and state rule] is not altogether pellucid.”). Due to this uncertainty, we do not believe that the history of Rule 606(b) dictates that we adopt a more narrow construction of the rule than the plain language suggests.
Furthermore, our interpretation of Rule 606(b) is consistent with policy considerations that generally support the common-law rule against the admission of jury testimony to impeach a verdict. See, e.g., Tanner, 483 U.S. at 119-20, 107 S.Ct. 2739; McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Golden Eagle, 24 S.W.3d at 367. Jury deliberations must be kept private to encourage jurors to candidly discuss the law and facts,
Additionally, although there is a need for finality, “the conduct of the jurors ... may be of such a character as not only to defeat the rights of litigants but it may directly affect the administration of public justice.” McDonald, 238 U.S. at 266, 35 S.Ct. 783. There are legitimate reasons to prohibit unfettered investigation by the jury in order to maintain confidence in judgments. “A juror must ... use the law, the evidence, and the trial court’s mandates as his ultimate guides in arriving at decisions as to guilt or innocence and as to punishment.” Granados v. State, 85 S.W.3d 217, 235 (Tex.Crim.App. 2002); see Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). Such restrictions prevent a juror from acting as a witness against the defendant.
The Sixth Amendment right to a trial by jury, enforceable against the states as a result of incorporation through the Fourteenth Amendment’s due process clause, “implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”
Therefore, we return to our plain-meaning interpretation of outside influence: something originating from a source outside of the jury room and other than from the jurors themselves. The facts of this case fall squarely within our interpretation of Rule 606(b). The internet research occurred outside of the jury room and outside of deliberations — the juror conducted a private investigation at her home during an overnight break. In addition, the information obtained originated from a source on the internet, a source other than the jurors themselves. The internet research constituted an “outside influence.” As a result, at the hearing on the motion for new trial, Rule 606(b) would permit the court to question the jury, without delving into deliberations, and to determine whether the “outside influence” impacted the outcome of the case. See id. (explaining that juror testimony is permitted on the issue of juror misconduct “provided such testimony does not require delving into deliberations”).
An inquiry into the effects of the juror’s private internet investigation does not require us to “delve into deliberations.”
The trial court abused its discretion in excluding, pursuant to Rule 606(b), the jurors’ testimony and affidavits offered by Appellant at the hearing on his motion for new trial, and the court of appeals erred to hold otherwise. The internet research conducted by a juror about the effects of date rape drugs constitutes an “outside influence.” Therefore, we reverse the judgment of the court of appeals and remand the ease to the trial court for a new hearing on Appellant’s motion for new trial consistent with this opinion.
. The indictment specifically alleged that Appellant did "intentionally and knowingly cause the penetration of the sexual organ of Lisetta Camarillo, by defendant’s sexual organ, without the consent of Lisetta Camaril-lo.”
. Testimony revealed that Appellant’s parents had moved out, and the house was vacant, except for a few pieces of furniture including a television and a mattress.
. The court explained, "I think my understanding of the case law and — and the rule is that information received from another juror is not an outside influence, which is the only thing he can testify to.... I will not consider [his testimony] on this motion.”
. Texas Rule of Evidence 606(b) provides the following:
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.
. See, e.g., Ocon v. State, 284 S.W.3d 880, 886 (Tex.Crim.App. 2009); Lucero v. State, 246 S.W.3d 86, 95 (Tex.Crim.App. 2008).
. As adopted in 1975, Federal Rule of Evidence 606(b) provided,
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 course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror....
(Emphasis added).
. The 1998 rule was amended to also allow juror testimony to rebut a claim that a juror was not qualified to serve. See Tex.R. Evid. 606(b) (1998).
. Golden Eagle, 24 S.W.3d at 367.
. Id.
. The Texas Supreme Court has explained that a “juror may testify about jury misconduct provided it does not require delving into deliberations. For example, a juror could testify that another juror improperly viewed the scene of the events giving rise to the litigation. Likewise, a juror could testify about reasons for disqualifying another juror provided the testifying juror's knowledge was gained independent of deliberations.” Golden Eagle, 24 S.W.3d at 370 (discussing Texas Rule of Civil Procedure 327(b), which has language parallel to the relevant portions of Rule 606(b)).
Dissenting Opinion
filed a dissenting opinion in which COCHRAN, J., joined.
The Court decides that a juror’s internet research constituted an “outside influence” for the purpose of determining whether jurors could testify about the matter in a proceeding to challenge the jury’s verdict. I disagree, because the text and background of the rule indicate that the phrase “outside influence” carries a narrower meaning than given by the Court today. I would hold that the internet research in this case was not an outside influence because the information did not involve a communication from a person outside the jury. I would further hold that this construction does not violate appellant’s constitutional rights.
A. Admissibility under Rule 606(b)
In construing the meaning of a rule of evidence, an appellate court “should attempt to effectuate the plain language absent important countervailing considerations.”
The current version of Rule 606(b), effective March 1,1998, provides:
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 im- ■ properly brought to bear upon any ju*156 ror; or (2) to rebut a claim that the juror was not qualified to serve.3
The language of the rule imposes a broad prohibition against using juror testimony about deliberations to impeach a verdict, but the rule nevertheless has limits. The rule does not prohibit juror testimony about matters or statements occurring before deliberations.
In construing the meaning of the “outside influence” exception, it is necessary to address the history of Rule 606(b)’s development. The rule against using juror testimony to impeach the verdict originated in England with an opinion by Lord Mansfield in 1785.
In the early case of Mattox v. United States, the United States Supreme Court recognized an exception to the common-law rule for situations in which an “extraneous influence” was alleged to have affected the jury.
When the Federal Rules of Evidence were adopted in 1975, they included Rule 606(b), which provided:
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 course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s atten*157 tion or whether any outside influence toas improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.15
As can be seen from its language, the federal rule contained two exceptions to the general rule prohibiting juror testimony that impeached the verdict: one involving “extraneous prejudicial information” and the other involving “any outside influence.” The latter exception is contained in the modern Texas rule, but the former is not. The report of the United States House Judiciary Committee explained that the federal rule would permit a juror to testify “as to the influence of extraneous prejudicial information brought to the jury’s attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family).”
In 1983, the Texas Supreme Court adopted a version of Rule 606(b) in its rules of civil evidence. The Texas civil rule was identical to the federal rule except that it omitted the “extraneous prejudicial information” exception.
Our state courts of appeals came down on the side of construing the Texas civil rule more restrictively, by construing the “outside influence” exception as not encompassing the types of situations that the House Judiciary Committee suggested were covered by the federal “extraneous prejudicial information” exception. While the federal rule appears to contemplate and has been construed to permit juror testimony about a juror’s reliance upon a newspaper article,
Meanwhile, in 1986, we enacted our own rules of evidence, which contained a different version of Rule 606(b). Our Rule 606(b) was internally contradictory — it contained the original language of the federal rule limiting juror testimony, but the federal exceptions were replaced with an exception that swallowed the rule: “except that a juror may testify as to any matter relevant to the validity of the verdict or indictment.”
But that changed in 1998, with the merger of the civil and criminal rules into a single set of rules of evidence. With one added exception not relevant here, the new (and current) version of Rule 606(b) is the rule from the civil side of our court system. That change was intentional. And though opinions from the courts of appeals are not binding upon us, those opinions that existed at the time we adopted the rule deserve special consideration.
As we have discussed already, those opinions, based largely on Baley, construed the Texas civil rule more restrictively than its federal counterpart. Appellant contends that Baley is flawed and should be disregarded. He first argues that the Supreme Court of Texas has rejected Baley’s definition of “deliberations.” That is true, but irrelevant. The definition of “deliberations” was a separate aspect of the discussion in Baley from the meaning of “outside influence”: first the Baley court had to decide whether discussions occurring before the jury charge was read constituted “deliberations,” and then, if so, the court had to decide whether an outside
Appellant also argues that we should disregard Baley because it is inconsistent with the Texas Supreme Court’s statement that “a juror could testify that another juror improperly viewed the scene of the events giving rise to the litigation.”
Appellant further contends that Baley delivered its holding “out of the blue,” that its holding was not supported by the cases it cited, and that its holding was contrary to the language of the rule, as asserted by the dissent.
Important in interpreting the Rule, however, is the fact that the Texas Supreme Court expressly deleted the proposal by the Rule’s drafters in the Liaison Committee that Rule 327(b) also allow testimony on whether “extraneous prejudicial information was improperly brought to the jury’s attention.” [Citation omitted]. This inquiry is permitted by Federal Rule of Evidence 606(b), and yet the Texas Supreme Court expressly chose to delete this apparently more liberal test for jury misconduct and instead opted for the more stringent “out*160 side influence” test.36
In another case, our Court has already commented in passing that the federal rule “is more expansive than Texas Rule 606(b), because Federal Rule 606(b) permits jurors to testify about ‘whether extraneous prejudicial information was brought to the jury’s attention.’ ”
The Court discounts the significant difference in the wording between the federal and Texas versions of Rule 606(b) as well as the historical background in which the Texas rule was adopted. The Court suggests that it can do so because the significance of the difference in language was debated in two law review articles. But whatever dispute or uncertainty there is or may have been among scholars or the federal courts about the meaning of the Texas rule, our own courts of appeals seem to be in agreement: the term “outside influence” does not encompass information gathering by a juror that does not involve communicating with other people. Activities such as reading a newspaper or researching on the internet, while covered by the federal rule, are not covered by the Texas rule. Though at least two out-of-state jurisdictions have held or suggested that internet research constitutes an external matter to which a juror may testify, those jurisdictions have the “extraneous prejudicial information” exception that is in the federal rule.
Because the juror did not receive a communication from a person outside the jury, I would hold that the juror was not subject to an “outside influence.”
B. Constitutionality of Rule 606(b)
In Tanner v. United States, the Supreme Court upheld the constitutionality of the federal version of Rule 606(b) when the trial judge excluded juror testimony about one of the jurors being intoxicated.
There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct.45
The Court further found that a defendant’s Sixth Amendment interests in an unimpaired jury were “protected by several aspects of the trial process.”
In Golden Eagle Archery, the Texas Supreme Court upheld the constitutionality of the current version of Texas Rule of Evidence 606(b) when the trial judge excluded juror testimony about undisclosed juror bias.
Appellant contends that Golden Eagle Archery can be distinguished because there is no constitutional right of confrontation in civil cases. But jurors are not “witnesses” in a classic sense, “with consequent automatic entailment of the confrontation clause, whenever a juror voices any extra-record facts.”
In any event, procedural protections exist to help safeguard a defendant’s Confrontation-Clause interests. Potential jurors can be questioned and instructed regarding internet research during voir dire. The trial judge can instruct the jurors during trial and before deliberations
I respectfully dissent.
. Lopez v. State, 253 S.W.3d 680, 685 (Tex.Crim.App. 2008).
. Id.
. Tex.R. Evid. 606(b).
. Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 371 (Tex. 2000).
. Id.
. Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); Golden Eagle Archery, 24 S.W.3d at 367.
. Tanner, 483 U.S. at 117, 107 S.Ct. 2739.
. Golden Eagle Archery, 24 S.W.3d at 367.
. Tanner, 483 U.S. at 117, 107 S.Ct. 2739; Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892).
. Golden Eagle Archery, 24 S.W.3d at 367.
. See Mattox, 146 U.S. at 148, 13 S.Ct. 50 (quoting Justice Brewer in Peny v. Bailey, 12 Kan. 539, 545 (1874)).
. Golden Eagle Archery, 24 S.W.3d at 368.
. Id. (quoting 1 McCormick & Ray, Texas Law of Evidence § 1612 (Texas Practice 1980)).
. Fed.R.Evid. 606(b) (1975) (emphasis added).
. House Comm, on Judiciary, Fed.R.Evid., H.R.Rep. No. 650, 93d Cong., 1st Sess., p. 9 (1973).
. See Tex R. Civ. Evid. 606(b) (1997); Golden Eagle Archery, 24 S.W.3d at 368.
. Golden Eagle Archery, 24 S.W.3d at 368.
. Id. (citing Addison, Conduct Unbecoming a Jury: Rule 606(b), 50 Tex. Bar J. 872, 872 (1987) (more restrictive) and Black, Article VI: Witnesses, 20 Hous. L.Rev. 409, 423 (1983) (redundant)).
. See House Comm. on Judiciary, H.R.Rep. No. 650, p. 9; Peveto v. Sears, 807 F.2d 486, 489 (5th Cir. 1987); United States v. Straach, 987 F.2d 232, 241 (5th Cir. 1993); Gall v. Parker, 231 F.3d 265, 333 (6th Cir. 2000). See also Mattox, 146 U.S. at 150, 13 S.Ct. 50.
. Baley v. W/W Interests, 754 S.W.2d 313, 315-16 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (newspaper article); Mercy Hospital of Laredo v. Rios, 776 S.W.2d 626, 629-30 (Tex.App.-San Antonio 1989, writ denied) (same); King v. Bauer, 767 S.W.2d 197, 198 (Tex.App.-Corpus Christi 1989, writ denied) (same); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (magazine article).
. Baley, 754 S.W.2d at 316; King, 767 S.W.2d at 198; Peny, 821 S.W.2d at 281.
. Baley, 754 S.W.2d at 316.
. Id.
. Perry, 821 S.W.2d at 281 (quoting Baley); Soliz v. Saenz, 779 S.W.2d 929, 931-32 (Tex.App.-Corpus Christi 1989, writ denied); Nelson v. Clements, 831 S.W.2d 587, 591 (Tex.App.-Austin 1992, writ denied). Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 272 (Tex.App.-El Paso 1994, writ denied).
. See Tex.R.Crim. Evid. 606(b) (1996).
. 826 S.W.2d 610, 613 (Tex.Crim.App. 1992).
. See Baley, 754 S.W.2d at 316.
. See Golden Eagle Archery, 24 S.W.3d at 370.
. See id.
. See id., passim.
. Id. at 370. Another state's high court has expressed ambivalence on the matter, even under broader language patterned after the federal rule, citing potentially conflicting cases on whether a juror’s visit to the crime scene constitutes extraneous prejudicial information. Watkins v. Taylor Seed Farms, 295 Ark. 291, 293, 748 S.W.2d 143, 144 (1988).
. See Baley, 754 S.W.2d at 320-21 (Ellis, J., dissenting).
. 706 S.W.2d 130 (Tex.App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.), cited in Baley, 754 S.W.2d at 316.
. See Robinson Electric Supply Co., 706 S.W.2d at 131-32.
. Lucero v. State, 246 S.W.3d 86, 95 n. 10 (Tex.Crim.App. 2008).
. Salazar v. Dretke, 419 F.3d 384, 402 n. 30 (5th Cir. 2005) (citing United States v. Martinez-Moncivais, 14 F.3d 1030, 1036 n. 3 (5th Cir. 1994)). See Martinez-Moncivais, supra.
. See Franks v. State, 90 S.W.3d 771, 799 (Tex.App.-Fort Worth 2002, pet. ref'd, untimely filed) ("It has often been held in the civil context that information gathered by a juror and introduced to the other jurors by that juror does not add up to 'outside influence,' even if introduced specifically to prejudice the vote.”); Hines v. State, 3 S.W.3d 618, 623 (Tex.App.-Texarkana 1999, pet. ref’d) ("While case law has not clearly identified what constitutes an outside influence, it has clearly rejected certain conduct as constituting outside influence.... Thus, it has been held that information gathered by a juror and introduced to the other jurors by that juror does not amount to outside influence, even if introduced specifically to prejudice the jurors' votes.”); Williams v. Viswanathan, 64 S.W.3d 624, 636 (Tex.App.-Amarillo 2001, no pet.).
. State v. Abdi, 2012 VT 4, 45 A.3d 29 (2012) (internet research about Somali religion and culture); Stephenson v. State, 742 N.E.2d 463, 477 (Ind. 2001) (observing that there was no evidence that the juror was exposed to outside influences, including "researching on the Internet”); see also Mitchell v. State, 726 N.E.2d 1228, 1238 (Ind. 2000) (citing Indiana rule as including the "extraneous prejudicial information” exception).
.I recognize that communications from a person outside the jury are not limited to face-to-face or contemporaneous contact. A communication can be conveyed over the telephone, by mail, or over the internet. Such communication might include leaving a message on an answering machine, sending a letter, sending an email or instant message, or posting on a message board. But, as with reading a newspaper, viewing a webpage will not ordinarily constitute a communication from another person to the juror. In an unusual case, a webpage could be a communication from another person to a juror if it was created or modified with the purpose of communicating with a specific juror about a case. On the other hand, a message board posting would not be a communication to a juror if made by and for participants who were completely unaware of the juror and the case.
. Id. at 120-21, 107 S.Ct. 2739 (citation and parenthetical omitted).
. Id.
. Id.
. Id. (emphasis in original).
. Id.
. Id.
. Id. at 375.
. Id.
. Id.
. Id.
. United States ex rel. Owen v. McMann, 435 F.2d 813, 818 n. 5 (2nd Cir. 1970).
. Golden Eagle Archery, 24 S.W.3d at 366-67.
. Id. at 367 (citing 1 Goode et al„ Guide to the Texas Rules of Evidence- Civil and Criminal, § 606.02 (Texas Practice 1993)).
. In a concurring opinion in Golden Eagle Archety, Justice Hecht would extend the prohibition against juror questioning in civil cases to any questioning that occurs after deliberations have begun. Although I do not find that sort of extension to be appropriate for criminal cases, the policy reasons he cites certainly apply with even greater force to our more limited rule: ”[T]o allow one juror to attack another juror’s ... conduct is too great an encouragement of post-trial trials of the jury” and poses "a significant burden on citizens who give of their time to serve as jurors with little benefit to the process. Jurors come to decide disputes, not to be drawn into them.” 24 S.W.3d at 376 (Hecht, J. concurring).
. See Abdi, 2012 Vt. at ¶ 25, 45 A.3d at 38 ("[I]t may well be time to consider a stronger and more technology specific admonition” regarding research on the internet.).
Reference
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