explaining that when alleged juror misconduct is based on facts outside record, facts "must be supported by the affidavit of a juror or some other person who was in a position to know *25the facts, or must state some reason or excuse for failing to produce the affidavits" (internal quotation marks and citation omitted)
How later courts described this case
- explaining that when alleged juror misconduct is based on facts outside record, facts "must be supported by the affidavit of a juror or some other person who was in a position to know *25the facts, or must state some reason or excuse for failing to produce the affidavits" (internal quotation marks and citation omitted)
- holding that defendant put forth sufficient evidence to establish presumption of harm, where juror allegedly told unauthorized person that he was in certain judge’s courtroom and nodded in response to unauthorized person’s question about whether he was juror in defendant’s case
- noting exchange between the person and the juror “need not constitute a full blown discussion of the specifics of a given case” and holding presumption of prejudice invoked where juror told witness which court he was in and nodded his head in response to whether it was appellant’s case, after which the witness stated, “What do you do with a guy like that?”
- recognizing that the policy of requiring affidavits in support of a claim of juror misconduct is to “discourage ‘fishing expeditions’ in an effort to impeach a jury verdict”
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
By way of motion for rehearing appellant now assails the remedy granted in our opinion on original submission. Specifically he contends that “the action of the trial court in denying a hearing on the motion [for new trial] ... amounts to a constraint or curtailment of the Appellant’s absolute right to a full, free and fair presentation of the evidence in support of the motion which was clearly prohibited in [Jackson v. State, 167 Tex.Cr.R. 34 , 318 S.W.2d 98 (1958) ].” 1 On this basis he contends he should be granted, not merely a belated hearing on his motion for new trial, but the new trial itself.
In Jackson v. State, supra, a hearing was held on the defendant’s motion for new trial wherein she alleged that the jury had impermissibly discussed her failure to testify during its deliberations. The judge in Jackson commandeered examination of appellant’s first witness, a juror, and upon ascertaining that the witness had mentioned the defendant’s failure to testify to other jurors in the jury room, cited him for contempt for having disobeyed the jury instruction that no such mention be made. Before the second juror/witness began testimony, the trial court reread to him that jury instruction. This Court ruled that such behavior on the part of the trial court was “reasonably calculated to constrain the witnesses and curtail their testimony, which was prejudicial to the rights of the [defendant],” id., at 102 , and remanded the cause for a new trial.
Even appellant admits, however, that “the trial court in the instant case cannot be charged with the overt acts so obviously calculated to ‘chill’ the testimony of the jurors in [,Jackson ].” Nevertheless he argues that “the inevitable prejudicial effect of the passage of over three years” since hearing on his motion for new trial was denied has deprived him of his right to a free, fair and full presentation of evidence in support of that motion.
*662 We refuse to indulge such a presumption of prejudice, however. Instead, the cause is returned to the trial court for a preliminary hearing to determine the feasibility, at this late date, of holding a hearing wherein appellant may obtain a free, fair and full presentation of evidence in support of his motion for new trial. At such preliminary hearing the burden will be on appellant to prove, by a preponderance of the evidence, that a free, fair and full presentation of evidence is not feasible. That proof may be made by affidavits of jurors, or by affidavit of counsel demonstrating the unavailability of jurors or other relevant witnesses after a reasonable effort has been made to secure their presence. Present recollection of such jurors and other relevant witnesses should be taken into consideration. We believe such a procedure comports with due process. 2
The cause is therefore remanded to the court of appeals with orders that that court abate the appeal and remand the cause for preliminary hearing as described above, and if found feasible, for hearing on motion for new trial. Should appellant sustain his burden of showing ¿^feasibility of hearing on motion for new trial, or if after hearing on motion for new trial appellant’s motion is granted, the cause will be docketed for a new trial. In the event the trial court should rule the hearing on motion for new trial feasible, conduct such hearing, and then deny the motion, appellant may appeal to the court of appeals any asserted error in the feasibility hearing, and any assertion of abuse of discretion in denial of the motion for new trial.
. Not, it should be noted, the same Jackson v. State, relied on by appellant in arguing for a new trial on original submission. See n. 17, ante.
. Compare Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.1980) wherein, upon finding that a retrospective hearing to determine defendant’s competency to stand trial was feasible, this Court resolved all grounds of error pertaining to the actual trial on the merits, but abated the cause for such retrospective competency hearing. The judgment in Brandon was subsequently vacated on another point, 453 U.S. 902 , 101 S.Ct. 3134 , 69 L.Ed.2d 988 (1981).