Opinion
No. 06-03-00209-CR.
Submitted: March 5, 2004.
Decided: April 16, 2004. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 30607-B
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Shannon Michael Graham pled guilty to two counts of sexual assault and one count of indecency with a child and requested a jury to determine the punishment. After hearing evidence on the punishment issue, the jury assessed Graham's punishment at twenty years' confinement on each count and a $5,000.00 fine on each. The indictment alleged that the counts arose out of the same criminal episode. The trial court sentenced Graham to twenty years' confinement, to run consecutively, and a $5,000.00 fine on each count. See TEX. PEN. CODE ANN. § 3.03 (Vernon 2003). The issues raised on appeal are:
(1) Did the trial court err in denying Graham's motion for new trial, and
(2) Is Graham's sentence disproportionate to the offense?We affirm the judgment of the trial court. Sometime in October 2002, Graham, age twenty-eight, moved into the home of his father, Lomax Graham; stepmother, Donna Graham; and his half sister, L.G.L.G., the victim in this case, was fourteen years old. Approximately two months before the discovery of the sexual contact, L.G. had a black eye and bloody nose. She told her mother that falling out of bed caused the injuries. L.G. testified that injuries were inflicted on her by Graham when she refused to engage in sexual activities. On May 12, Donna walked into Graham's bedroom and saw Graham zipping up his pants and L.G. on the floor next to the bed. L.G. told her mother that Graham had been "messing with her." Graham gave a written confession to the sheriff's department admitting that he talked L.G. into rubbing his penis and that he committed several sexual offenses. L.G. testified that she was forced by Graham to perform oral sex about twenty times. Did the trial court err in denying the motion for new trial ? Graham argues he should have been granted a new trial because of jury misconduct. TEX. R. APP. P. 21.3(f) mandates the granting of a new trial: "[W]hen, after retiring to deliberate, the jury has received other evidence; . . ." Graham filed a motion for new trial, and a hearing was conducted. During the hearing, Graham presented a juror, Jo Anthony, who testified that she thought "maybe" another juror had been influenced by other cases or her prior experience on other juries, and that the other juror stated, "[t]here's no rehabilitation for an offender like this. . . ." Further, Anthony stated she disagreed with the length of the sentence. TEX. R. EVID. 606(b) prohibits a juror from testifying to statements "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. . . ." A juror may testify as to whether any outside influence was improperly brought to bear on any juror. Here, no objection was made to the testimony of Anthony. Anthony also stated that she was able to express her own true feelings regarding punishment; that no one discussed whether Graham had been previously convicted; that she used only the evidence which had been admitted to decide punishment; that she voted for each twenty-year sentence; and that she did not know it was the function of the court to decide whether to stack the sentences. A motion for new trial is addressed to the sound discretion of the trial court. The decision to deny a motion for new trial will not be disturbed unless an abuse of discretion is shown. McMillon v. State, 505 S.W.2d 872, 874 (Tex.Crim.App. 1974) (quoting Franco v. State, 141 Tex.Crim. 246, 147 S.W.2d 1089, 1092 (1941)). When a trial court has heard conflicting evidence on an issue, the decision of that court will not be disturbed if there is sufficient evidence to justify it. Higgins v. State, 924 S.W.2d 739, 743 (Tex. App.-Texarkana 1996, pet. ref'd); Marinez v. State, 654 S.W.2d 500, 502 (Tex. App.-Corpus Christi 1983, no pet.). Here, the evidence is that one juror "thought maybe" another unnamed juror was influenced by the other juror's prior experiences and that the juror expressed an opinion that rehabilitation was not possible. We hold this is not evidence received by a jury in violation of law. Jurors are entitled to use their common-sense deductions and other common human experiences that an average person encounters in deliberating on a verdict. See Bartell v. State, 464 S.W.2d 863, 865 (Tex.Crim. App. 1971). In Hines v. State, we held:
[W]hile case law has not clearly identified what constitutes an outside influence, it has clearly rejected certain conduct as constituting outside influence. Thus, it is 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. Nor does coercive influence of one juror on the rest of the panel constitute "outside influence." Even a juror's injection of his own personal experiences, knowledge, or expertise is not considered an outside influence, because those representations emanate from inside the jury.Hines v. State, 3 S.W.3d 618, 623 (Tex. App.-Texarkana 1999, pet. ref'd) (citations omitted). Likewise here, Anthony's testimony does not reveal any outside influence that was improperly brought to bear on any juror. The statements were all made during deliberations and emanated from inside the jury. The trial court correctly overruled Graham's motion for new trial. Is Graham's sentence disproportionate to the offense ? Graham alleges that his sentence is disproportionate to the offense. Even though a motion for new trial was filed and heard in this case, no objection was made to the trial court that the sentence was disproportionate to the offense. Graham has waived the error. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.-Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.); Solis v. State, 945 S.W.2d 300 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). In cases where the sentencing is discretionary, it is reasonable to require a trial objection so that the trial court might have an opportunity to cure any error. Solis, 945 S.W.2d at 301-02. We overrule Graham's second point of error and affirm the judgment of the trial court.