# Garza v. State

> Court of Criminal Appeals of Texas · March 31, 1982 · 630 S.W.2d 272

URL: https://www.frixlaw.com/law-library/cases/9681043

## Case

- **Full name:** Roberto C. GARZA, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 31, 1982
- **Citations:** 630 S.W.2d 272
- **Precedential status:** Published
- **Opinion:** On rehearing by Roberts
- **Judges:** Teague, Roberts, Dally, Tea-Gue
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681043

## How later opinions describe it (automated extraction)

- holding that juror affidavits sworn before one of appellant’s attorneys could not be considered, unlike affidavit sworn before a notary public other than one of appellant’s attorneys
- holding juror’s statements regarding defendant’s criminal record made during deliberations were received by jury
- declining to conduct harm analysis under predecessor statute

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge. '
The original panel opinion in this case reversed the appellant’s conviction because of jury misconduct. The State’s motion for rehearing asks us to overrule that panel opinion because the appellant did not show that he was actually harmed by the misconduct. For reasons which follow, we deny the State’s motion.
In Rogers v. State, 551 S.W.2d 369, 370 (Tex.Cr.App.1977) this court stated:
“[V.A.C.C.P., Article 40.03(7),] provides that a new trial shall be granted ‘Where the jury, after having retired to deliberate upon a case, has received other testimony; . . . ’ This statute requires a new trial if the ‘other testimony’ was adverse to the accused. *
“In the case at bar, identification was a central issue, and the foreman’s statement was adverse to appellant’s attack on that issue. See Embry v. State, 95 Tex.Cr.R. 488 , 255 S.W. 190 . It is the character of the evidence that controls the determination of this issue, and the Court will not speculate on the probable effects on the jury or the question of the injury. See cases collected at note 802 to Art. 40.03 in Vernon’s annotations to the code. Unless there is a fact issue raised on whether the jury actually received the other evidence (see Honeycutt v. State, 157 Tex.Cr.R. 206 , 248 S.W.2d 124 ), the statute requires reversal if the evidence was adverse to the defendant. The statutory provision here applied was designed by the Legislature to guarantee the integrity of the fundamental right to trial by jury by restricting the jury’s consideration of evidence to that which is properly introduced during the trial. To adequately safeguard that right from erosion, the Legislature in its wisdom created a per se rule. It is the duty of this Court to follow that mandate.”
(emphasis in original) (footnote omitted)
*276 In Hunt v. State, 603 S.W.2d 865 (Tex.Cr.App.1980), this Court considered and rejected the argument now made by the State. We held:
“The State’s contention that the appellant must show harm by the jury’s receipt of this ‘other evidence’ is without merit. Where the ‘other evidence’ is shown to have been received by the jury and to have been detrimental to the defendant, this court ‘will not speculate on the probable effects on the jury or the question of injury,’ and the requirement for a new trial in such cases is considered a ‘per se rule.’ Rogers, supra.” (footnote omitted)
603 S.W.2d at 869 .
As Rogers and Hunt make clear, V.A.C. C.P., Article 40.03(7) requires reversal when the evidence shows that “other evidence” was received by the jury during its deliberations and that “other evidence” was detrimental to the defendant. This Court simply will not inquire into whether or how the jury’s deliberations were affected by this “other evidence” when the two requirements of Article 40.03(7) have been met.
In this case, the evidence clearly shows that the jury received “other evidence” during its deliberations and that the “other evidence” was detrimental to the appellant. For that reason, the panel opinion correctly decided that the appellant’s conviction must be reversed. The State’s motion for rehearing is overruled.
The term “other testimony” was broadened to “other evidence” by 1973 Tex.Gen.L. Ch. 399, Sec. 2(A).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681043. Public record. Not legal advice.