# Buentello v. State > Court of Criminal Appeals of Texas · March 4, 1992 · 826 S.W.2d 610 URL: https://www.frixlaw.com/law-library/cases/9775872 ## Case - **Full name:** Richard Cody BUENTELLO, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 4, 1992 - **Citations:** 826 S.W.2d 610; 1992 Tex. Crim. App. LEXIS 38; 1992 WL 38112 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Maloney, Clinton, Campbell, McCormick, White, Benavides - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated — as noted by a later court. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775872 ## How later opinions describe it (automated extraction) - holding that test adopted in Sneed still a viable means of determining whether jury’s discussion of parole law constitutes reversible error ## Opinion text CAMPBELL, Judge, dissenting. There is no question but that the meaning of Texas Rule of Criminal Evidence 606(b) is somewhat murky. 1 But in my view this case is not the proper vehicle for clarification or explication. Neither appellant nor the State has ever disputed that juror testimony regarding juror deliberations was properly admitted at the motion for new trial hearing. Appellant does not dispute the court of appeals’ analysis of the Rule 606(b) issue for the simple reason that the court of appeals held in his favor on this threshold question. Nor does the State attack the determination of the court of appeals on this issue. The parties’ briefs to this Court concen *618 trate on the significance of the juror testimony, not its admissibility. With appropriate exceptions, this Court should not reach out to decide questions that have not been properly framed by the parties. There is a multitude of areas of law on which this Court has yet to write. We should be reluctant to address these areas until such time as it is genuinely necessary to do so in order to resolve a real dispute. This is not such a case, at least not with regard to Rule 606(b). The State did not argue in the court of appeals that the inquiry into the jurors’ deliberations was improper. For this Court to produce a definitive opinion on the import of Rule 606(b), without giving the State the opportunity to make opposing arguments, is injudicious, at best. Having expended both time and effort in needlessly resolving a question not yet ripe for determination, the majority then spends barely a paragraph analyzing the substance of appellant’s claim. In so doing, the majority breezes over the strict requirements of the Sneed test, and comes to an erroneous conclusion on the merits. The majority purports to use the Sneed test, while drawing an analogy to a similar colloquy found in Shields v. State, 809 S.W.2d 230 (Tex.Cr.App.1991). The analogy to Shields is both inapposite and incomplete. The test outlined in Sneed is both straightforward and stringent: For jury discussion of parole law to constitute reversible error, it must be shown that there was (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which was relied on by other jurors (5) who for that reason changed their vote to a harsher punishment. Sneed at 266. Part three of the test is that part which separates the pedestrian and commonplace juror discussion of parole law from a discussion which reaches the level of harm meriting reversal. It is particularized knowledge of parole law, as opposed to common personal knowledge about the existence of parole or the parole system, which carries unfair weight in the jury discussion. The difference between parts two and three of the Sneed test is fundamental. A simple assertion of fact about the workings of the parole system does not constitute a profession of knowledge of the law. If the rule were otherwise, then the statement, “I know he will only serve two years for every ten we give him,” would satisfy part three of the test while the statement, “He will serve only two years for every ten we give him,” would not, the only difference between these two statements being the two missing words “I know.” Satisfaction of the third part of the Sneed test requires something more than the use of the two words “I know.” There must be profession of knowledge about the working of parole law based on some authority. Without reference to a compelling source, discussion of parole law constitutes nothing more than speculation or “guesstimates”. Keady v. State, 687 S.W.2d 757, 759 (Tex.Cr.App.1985). What part three requires is particularized knowledge of the working of parole law. The “assertion of fact” requirement is separate and distinct from the requirement that a juror profess to know the law. The conclusion that any juror who makes an assertion of fact is professing to know the law runs counter to our holding in Sneed. Our holding in Sneed has proven to be a workable solution to the problem of jury discussion of parole. Such discussions are prevalent, given the almost universal knowledge of the parole system’s existence and the tendency of jurors to speculate about the effect of their verdict. The Sneed test differentiates between those cases where common knowledge “manifests itself in an open expression or discussion of parole possibilities” from those harmful cases where jurors are unduly influenced by assertions made by someone who claims special knowledge. Sneed at 265; see Ready at 758-759 (even though juror believed statements about parole to be factual because of the specificity of the assertions, none of the jurors professed to know the law); Stanton v. State, 747 S.W.2d 914, 924 (Tex.App.—Dallas 1988, pet. ref’d) (no new trial even though juror related during deliberations that he had *619 friend who received a long sentence and served only a short time); Gilliam v. State, 746 S.W.2d 323 (Tex.App.—Eastland 1988, no pet.) (discussion of parole which failed to meet Sneed test); McGlothlin v. State, 705 S.W.2d 851, 861-862 (Tex.App.—Fort Worth 1986) (no finding of jury misconduct under Sneed when “they said he would serve a third or a half of what the sentence was”), rev’d on other grounds, 749 S.W.2d 856 (Tex.Cr.App.1988); Kopanski v. State, 713 S.W.2d 188, 191 (Tex. App.—Corpus Christi 1986, no pet.) (no finding of reversible error under Sneed where jury discussed notion that if given 30 years, defendant would be released in 15); Rassner v. State, 705 S.W.2d 798, 801-802 (Tex.App.—Houston [14th Dist.] 1986, pet. ref d) (no reversible error under Sneed even though several jurors showed their knowledge of parole during deliberations). The majority opinion relies improperly on the case of Shields v. State, supra. The jury discussion of parole in Shields superficially resembles the discussion which transpired in the instant case. The resemblance does not withstand scrutiny. In Shields , the jury had been charged under Tex.Code Crim.Proc. art. 37.07, § 4(b). The instruction included the information that a defendant “will not become eligible for parole until the actual time served plus any good conduct time earned equals one-third of the sentence imposed.” The central issue in Shields was whether a juror who incorrectly repeated the formula given by the trial judge could be said to be “professing to know the law.” Implicit in our reversal of the conviction was the conclusion that such a juror was in fact professing to know the law. Shields at 233 . Indeed, the jurors in Shields had been given the law in their instructions from the trial judge. By misapplying the legal formula and discussing their flawed result, the Shields jurors were professing to know the law under part three of Sneed. If the majority desires to do away with the third part of the Sneed formulation, then it should explain why the test is no longer valid. If the majority simply disagrees with the trial judge’s evaluation of the evidence, then the majority has not understood our proper role in reviewing rulings on motions for new trial. At a hearing on a motion for new trial, the trial judge is the finder of fact. His determination may only be reversed if there has been an abuse of discretion. Tollett v. State, 799 S.W.2d 256 (Tex.Cr.App. 1990); Callins v. State, 780 S.W.2d 176 (Tex.Cr.App.1986); Sneed at 266; McCartney v. State, 542 S.W.2d 156, 162 (Tex.Cr.App.1976); Beck v. State, 573 S.W.2d 786, 791 (Tex.Cr.App.1978). A close review of the juror testimony as outlined by the majority does not reveal unequivocally that the assertions in question were made by jurors professing to know the law of parole. There was some testimony that the parole discussion was professed as knowledge; there is other testimony that it was professed as opinion. The testimony of jurors Montgomery and Dowd does not unequivocally reveal that the statements made were made by individuals professing to know the law. Even if this Court reaches a different conclusion from the trial judge, we should not reverse the judgment. We do not review such rulings de novo. Only when the decision constitutes an abuse of the trial court’s discretion should we reverse. Given that in the present case the testimony concerning the jury deliberations does not clearly fulfill part three of the Sneed test, I see no abuse of discretion on the part of the trial court, and thus would affirm the judgment of the Court of Appeals. To the majority’s failure to do so, I dissent. McCORMICK, P.J., and WHITE and BENAVIDES, JJ., joined. . See Goode, et al., Guide to the Texas Rules of Evidence 396 (1988) ("No single rule of evidence is more deceptively worded than Criminal Rule 606(b).”); Id., Supp.1990 at 85 (“The deceptive manner in which Criminal Rule 606(b) is worded has confused even its authors_"). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775872. Public record. Not legal advice.