*1 OPINION GREEN, Appellant, Norman DUNCAN, Judge. appellant capital The was convicted of murder, Code, 19.03(a)(2). V.T.C.A. Penal § Texas, Appellee.
The STATE of findings to then made affirmative No. 69578. special required by issues Art. 37.- 071(b)(1) (2), V.A.C.C.P., according- and Appeals Texas, Court of Criminal ly punishment by the was assessed En Banc. Appellant’s court at death. is now cause July pursuant before us on direct to Art. 2, V.A.C.C.P. error, points appel-
In two related lant contends that the its trial court abused overruling appellant’s discretion in mo- grounds ju- tion for trial on spoke person rors to unauthorized about appellant urges to case. this Court appellant’s re- reverse the conviction and mand the cause a new trial. alternative, appellant requests a re- mand the cause for a on his motion for new trial. sentencing, appellant timely
After sworn, presented filed and to the court a written motion for new trial to which was Green, attached the affidavit of Denise 31(c)(1) appellant’s Tex.R.App. sister. Rule Pro. Attached to the for new trial proposed was a order date for on the motion. written notation proposed on the order indicates that it was presented judge on October 1985; thereby putting on the trial court notice that desired opportuni- so that he could be afforded the ty present support of his evidence motion for new trial. affidavit,
According to the attached 11, 1985, recess, September during a trial allegedly Ms. Green overheard three fe- discussing the case jurors male with deceased’s mother. The affidavit states: I went to the women’s restroom Antonio, Stevens, Harle, Mark Sid San second floor of courthouse and was appellant. just about the door enter when Rodriguez, Atty. Fred G. Dist. inside, I after I heard a discussion from Garcia, Garcia, Mi- Eduardo J. Eduardo J. just inches. I opened had the door a few Jr., Raymond Hardy, chael J. Granados recognized pertaining the discussion as Antonio, Attys., Asst. Dist. San Robert I stopped so I and listened. case Huttash, Austin, Atty., State. discussing State’s jurors heard three female they thought my
fact that
brother was
guilty
they
also discussed the tele-
*2
regard
newspaper coverage of the
his motion for new trial with
vision and
issue raised in Green’s affidavit.2
point the
trial. At that
mother
ADAMS,
deceased,
TIM
spoke
MR.
Appellant’s appeal is therefore abated
jurors
the
told them the case had not
and this cause is remanded
the trial
morning’s paper
been
in that
but
covered
hearing
appellant’s
for
a
mo-
morning
had been on the
news on tele-
regard
for
inci-
tion
new trial with
the
vision.
dent
in Green’s affidavit.
described
controverting
The State filed no
affida-
ONION, Presiding Judge, dissenting.
appellant’s
vits. The
motion
overruled
was
appellant
copy
a
The
did not serve
of his
by
hearing.
operation of law1 without a
State,
the
motion for new trial on
did not
argues
appel
that since the
State
hearing
obtain a
for a
thereon and
by operation
of
lant’s motion was
secured
of his motion for
no determination
law
were
and the affidavits
not introduced
court,
by
permitting
trial
thus
new
the trial
sup
into
there was
evidence to
evidence
the motion
of
to be overruled
port
appellant’s
the
contentions.
State
by
expressly provided
law as
the mandato-
apparently
has
confused
of
the burden
ry statute
in effect.1 Like
trial
then
a
pre
misconduct
proving up jury
with the
objection to which a defendant secured no
requisites
hearing
obtain
necessary to
a
ruling,
any error waived.2
a
trial.
has
motion for new
This Court
unprecedent
Today’s
in an
majority,
required
hearing
held that before a
never
move,
court to
now orders the trial
conduct
accompanying
for
affidavits
the motion
of the motion for
portion
on a
every component
new
must “reflect
trial
after
years
three
the fact.
new
almost
required
jury
to establish a
of
legally
claim
this,
despite
statute
the con
And
State,
v.
misconduct.” McIntire
S.W.
effect
this
sistent
law to the
that
case
(Tex.Cr.App.1985).
2d
con
On the
con
will not consider such
Court
McIntire, id., we
trary, in
held:
ducted
the new trial
is over
after
pleading
prereq-
of
As a matter
as
by
law. See Trevino v.
operation
ruled
of
obtaining
hearing, keeping
in
uisite to
(Tex.Cr.App.1978);
State, 565
S.W.2d
purpose
mind
of the affidavit
that
(Tex.Cr.
Davis v.
529 S.W.2d
parameters
is to limit the
of
requirement
App.1975); Morgan v.
S.W.2d
sought,
that
that is
we hold
Boykin v.
(Tex.Cr.App.1975);
if
an affidavit
is sufficient
it demon-
(Tex.Cr.App.1975).
Thus there is no
without
abuse of discretion to
regard
awareness or
for the
refuse to hear
settled law of
a motion after it is overruled
contrary.
this state to the
precedents,
Old
of law. Menjares v.
guidelines
maps
destroyed
are
Meek v.
any
overruled sub silentio without
reason-
(Tex.App.
S.W.2d 543
— Ft.
ing. What is needed is a modern Paul
1982), pet.
Worth
ref’d.
spread
Revere to
the word to the bench and
Where the motion
by opera
is overruled
adjust
bar
your
“Don’t
sets.
It is
your
not
tion
any subsequent
of law
order of the
signals you
set but the
receiving
are
from
concerning
court
the motion is without
Appeals.”
the Court of Criminal
legal
effect. Williams v.
99 Tex.Cr.
fuzzy picture
being
it
sent. Stare at
R.
(Tex.App. McCORMICK, J., joins opinion. [14th] — Houston majority today plowing prece- root dent and years orders almost three evidentiary
the fact an portion on a
of the appeals motion which majority upon reading its current
motion overruled of law. upon relies McIntire v. (Tex.Cr.App.1985),
which in this opinion writer’s was errone
ously ignored decided5 and which also
precedent. not, however, McIntire did in tire, rehearing, p.
5. See this writer's dissent on McIn at