stating that where there is conflicting evidence, there can be no abuse of discretion in overruling a motion for new trial
How later courts described this case
- stating that where there is conflicting evidence, there can be no abuse of discretion in overruling a motion for new trial
- stating that there is no abuse of discretion in denying new trial when there is conflicting evidence
- urging courts to provide a reason and stating that the “most practical reason” is that no one can predict if or when an inmate will be released on parole
- “Let us accept that jurors are reasonable and sensible persons who can be trusted to follow their oath and instructions from the trial court when they are made to understand the reason they are not to discuss parole”
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
concurring.
When one of our citizens has established that he did not receive the fair and impartial trial by jury which the Constitution of this State guarantees him, as to both guilt and the assessment of punishment, and he receives no relief on appeal, it should be an extremely sad day for all Texans. Today, all State flags should be lowered to half-mast.
In this instance, Richard Scott Ready, appellant, has established that he did not receive the fair and impartial trial by jury the Constitution of this State guaranteed him — on the issue of what punishment the jury should have assessed. But he receives no relief. Why is this?
It is because of this Court’s majority decision of Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), which is authority for overruling appellant’s ground of error, that because of jury misconduct that occurred in this cause he was denied a fair and impartial trial by jury on the issue of punishment. I am therefore compelled and constrained, because of the doctrine of stare decisis, to concur in the result the majority reaches.
However, the facts of this cause truly reflect why Sneed v. State, supra, should be expressly overruled.
The record reflects the following:
Most, if not all, of the jurors in this cause ignored and violated the trial court’s oral and written instructions that they were not to discuss among themselves how *761 long appellant would be required to serve whatever punishment the jury assessed. The record clearly reflects that the jurors, when they were deliberating on what punishment to assess appellant, many times discussed among themselves how long appellant would be incarcerated before he might be released on parole. The jury foreperson’s testimony was undisputed, un-refuted, and unrebutted. She testified that because she relied upon the discussions the other jurors had regarding when appellant might be released on parole, she eventually agreed to the 50 year sentence that was assessed by the jury. By the express provisions of Art. 40.03 (7), V.A.C.C.P., also see Garza v. State, 630 S.W.2d 272 (Tex.Cr.App.1982), this constituted the receipt of other evidence which had not been admitted during appellant’s trial; thus, appellant was entitled as a matter of law to a new trial. But in Sneed v. State, supra, a majority of this Court, poaching in a field reserved by the Constitution to the Legislative Department of this State, overruled what the duly elected members of the Legislature had enacted.
In Salcido v. State, 167 Tex.Cr.R. 173 , 319 S.W.2d 329 (Tex.Cr.App.1959), Judge Davidson of this Court stated the following, which words are applicable to this cause: “The action of the jury ... is susceptible of but one construction, that being that such action was a revolt by the jury against the commutation and good-behavior laws of this state and a denial to this appellant of the rights given him by those laws. The jury just simply did not want this appellant to receive the benefit of those laws, and took it upon themselves to fix a punishment that would prevent his receiving such benefit. Thus, the very body that were called upon to enforce the law and to preserve the right of trial by jury openly circumvented and took it upon themselves to deprive the appellant of his rights under the law.”
I file this concurring opinion solely to make it clear to all that it should be a sad day, not only for all Texans, but especially for those jurors who sat in this cause and violated his or her oath of office-to such an extent that appellant was denied that precious right which the Constitution of this State grants to all of his, namely, the right to receive a fair and impartial trial by jury-on guilt as well as punishment-which right, as to the proper assessment of punishment, appellant has yet to receive.