ZAID ADNAN NAJAR, Appellant v. THE STATE OF TEXAS
NO. PD-1049-19
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
March 3, 2021
KEEL, J., delivered the opinion for a unanimous court.
ON STATE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
KEEL,
OPINION
Appellant was convicted of evading arrest in a motor vehicle. In his motion for new trial, he presented affidavits citing a conversation with a juror who stated that during deliberations the jurors heard a siren from outside, they made assumptions about the case based on that siren, and it affected their deliberations.
The trial court denied the motion for new trial, but the court of appeals reversed, holding that the jurors received other evidence in violation of
We granted the State‘s petition for discretionary review to consider whether the trial court was required to believe the affidavits, and if so, whether the siren was “other evidence” received during deliberations under
I. Background
Appellant was convicted of evading arrest in a motor vehicle for a brief, high-speed chase on Houston‘s Loop 610 highway. The only witness to testify at the trial was the arresting officer, Houston Police Department Officer Victor Bachar. When Bachar saw Appellant going over 100 miles per hour, weaving through traffic, and flashing red and blue lights, he activated his patrol car‘s emergency lights and siren and gave chase. After about a minute, Appellant got stuck in traffic near the Galleria, Bachar caught up to him, and Appellant pulled over.
The State had to prove that Appellant knew the officer was trying to pull him over.
Appellant argued that the affidavits were admissible under a hearsay exception and supported a new trial under
When Appellant offered the affidavits at the hearing, the following exchange took place: [Defense attorney]: And I think the State‘s already had a chance to look at [the affidavits]. I‘d offer those into evidence. On those I would like to point out, I think the State agrees with the factual basis of that affidavit, which is, this conversation with the jury took place. I know we have a dispute on the law. I don‘t know if that‘s correct, for the record.
[Prosecutor]: That‘s correct.
THE COURT: Any objections?
[Prosecutor]: No objections, Your Honor.
Based on this exchange, the court of appeals noted that the prosecutor “agreed with the factual basis of this affidavit” and that the “State neither contested that the jury heard and discussed the siren while deliberating, nor that the members of the jury had relied on their ability to hear the siren in finding appellant guilty.” Najar, 586 S.W.3d at 114. It held that “[b]ecause there is no evidence contradicting trial counsel‘s unobjected-to affidavit, no factual dispute in that regard was presented for the trial court‘s resolution[,]” and the “receipt” prong of
The first ground for review asks whether the trial court was required to believe the affidavits. We answer that question “no” for two reasons. First, the trial court is entitled to disbelieve evidence submitted in a hearing on a motion for new trial even if the evidence is uncontroverted. Second, the trial court was entitled to disregard the affidavits as inadmissible under
We have long held that a trial court‘s ruling on a motion for new trial will only be reversed for an abuse of discretion. See Grizzell v. State, 298 S.W.2d 816, 821 (Tex. Crim. App. 1956). However, this standard has been applied in two different ways. One standard is deferential, and the other is deferential only if there is a fact issue or controverted evidence.
Under the deferential standard the trial judge has “the right to accept or reject any part” of a witness‘s testimony when ruling on a motion for new trial. Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978); Colyer v. State, 428 S.W.3d 117, 126 (Tex. Crim. App. 2014). That discretion applies to testimony provided by affidavit. See Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004) (superseded by rule on other grounds). We afford almost total deference to a trial court‘s fact findings, view the evidence in the light most favorable to the trial court‘s ruling, and reverse the ruling only “if no reasonable view of the record could support” it. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). In the absence of express findings, we must presume all findings in favor of the prevailing party. Id.
But the court of appeals relied on the less-deferential standard of review by which we defer to the trial court‘s ruling denying a new trial only where there is a fact issue or “conflicting evidence.” E.g., Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985) (affirming denial of motion for new trial for juror misconduct because there was conflicting evidence on the matter). If the testimony about an allegation of juror misconduct is uncontroverted, “then there is no issue of fact for the trial” judge, and he must grant a new trial. Hartman v. State, 507 S.W.2d 557, 560-61 (Tex. Crim. App. 1974) (quoting Davis v. State, 328 S.W.2d 315, 316 (Tex. Crim. App. 1959)).
This less-deferential approach originated with a statute dating back to 1879. See
This statute meant that a trial court could deny a new trial only in the face of controverting evidence, and although the Court adhered to it, it often failed to cite it. E.g., Lawrence v. State, 36 S.W. 90, 91 (Tex. Crim. App. 1896) (affirming denial of new trial because of “controverting affidavits“); Rogers v. State, 252 S.W.2d 465, 466 (Tex. Crim. App. 1952) (reversing denial of new trial for lack of controverting evidence). It is unclear that the statute was ever cited in support of the less-deferential approach, leaving the rationale for the less-deferential standard of review unexplained.
But that statutory language was abandoned in 1986 when
We last cited the less-deferential standard in Salazar v. State, where we upheld a trial court‘s denial of new trial because the evidence conflicted as to whether the jury discussed parole during deliberations. 38 S.W.3d 141, 148-49 (Tex. Crim. App. 2001). Like earlier cases, Salazar did not attribute the less-deferential standard to any statute or rule. The lack of attribution in our earlier cases allowed the less-deferential standard to become untethered from its statutory basis. In Colyer, we brought the standard in line with the contemporary rule.
Although we cited Salazar in Colyer, we stated that even uncontroverted evidence at a motion for new trial hearing may be disbelieved by the trial court. Colyer, 428 S.W.3d at 122-23, 122 n.16. We distinguished uncontroverted facts from “undisputed” facts such as those stipulated to. Colyer, 428 S.W.3d at 122 (citing Evans v. State, 202 S.W.3d 158, (Tex. Crim. App. 2006). We rejected Colyer‘s argument and the lower court‘s holding that the juror‘s testimony about alleged outside influence was binding. Colyer, 428 S.W.3d at 121, 126. “[T]he trial judge was entitled to discredit [the juror‘s] post-trial testimony, even if it had been wholly uncontradicted.” Id. at 126.
Thus, Colyer silently abandoned the less-deferential standard and affirmed that a trial judge is not required to believe evidence offered in connection with a motion for new trial merely because it is uncontroverted. We now expressly affirm that holding and apply a uniformly deferential standard of review to a trial court‘s findings in ruling on a motion for new trial: the trial court is the exclusive judge of the credibility of the evidence, regardless of whether the evidence is controverted, and its ruling will be reversed only for an abuse of discretion, that is, if it is arbitrary or unsupported by any reasonable view of the evidence.
A trial court is not bound to believe a particular fact unless it is conclusively established. Facts may be conclusively established by formal stipulation. See Evans, 202 S.W.3d at 163, 163 n.16 (citing City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005)). Or they may be conclusively established by, for example, “indisputable visual evidence[.]” See Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) ((quoting Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring)) (relying on dash-camera video and body-microphone audio); Evans, 202 S.W.3d at 163 n.16. But if there are “at least two” plausible interpretations of the evidence, it is within the trial court‘s exclusive purview to decide which interpretation to believe. See Evans, 202 S.W.3d at 165.
Appellant argues that the trial court had to believe the affidavits because the prosecutor said “that‘s correct” in response to the defense attorney‘s remarks made before he offered them into evidence and expressly waived objection to their admission, and this made the affidavits
Appellant objects to our consideration of the State‘s argument that the trial court did not have to believe the affidavits because it did not make that argument in the court of appeals. But an appellee‘s failure to make an argument in the court of appeals does not prevent us from considering it. Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007); Rhodes v. State, 240 S.W.3d 882, 886 n.9 (Tex. Crim. App. 2007).
The trial court did not have to believe the affidavits though they were uncontroverted and admitted without objection. Furthermore, it could have disregarded them under
III. Rule 606(b): Alternative Applicable Legal Theory
The State argues that
Appellant and the court of appeals err to impose a duty to preserve error on an appellee. An appellant must object and preserve error, but not an appellee. See Darcy v. State, 488 S.W.3d 325, 329 (Tex. Crim. App. 2016) (“Ordinarily, the appealing party must have raised a particular complaint at trial before he can raise it on appeal.“); Bonilla v. State, 452 S.W.3d 811, 813 (Tex. Crim. App. 2014) (party complaining about trial court‘s ruling bears burden of preserving error for review); see also
In this case, the State is not trying to reverse the trial court with its
Even if
IV. The Siren Was Not “Other Evidence” Under Rule 21.3(f)
To qualify as “other evidence” received in violation of
Garza was granted a new trial in his heroin possession case for receipt of other evidence when jurors said during deliberations that he “had a bad criminal record[.]” Id. at 273-74. The discussion was “clearly detrimental” to him. Id. at 275. In the juvenile case of In the Matter of M.A.F., the jury received other evidence when a marijuana cigarette was discovered in a jacket admitted as an exhibit at trial and sent back to the jury during deliberations. 966 S.W.2d 448, 449 (Tex. 1998). The marijuana cigarette was “actual, concrete evidence indicating that M.A.F. had committed a collateral offense” and so was detrimental to him. Id. at 451. In Stephenson, several jurors disparaged defense witnesses as having bad reputations for truthfulness, and one juror said she personally knew the facts of the case and that the defendant was guilty. Id. at 176. This was “other evidence” adverse to the defendant. Id.
But a “passing remark” would not qualify as other evidence. Id. Furthermore, jurors are entitled to draw from their general life experiences when evaluating
In this case, the purported evidence was the sound of a siren from outside the building where the jury was deliberating. It was a random noise unconnected to the case, and the jurors heard it by happenstance. It was not proof of Appellant‘s criminal history or his commission of an extraneous offense nor was it a commentary on the credibility of the witness against him. It was not even a passing remark. It does not qualify as “other evidence” under
V. Conclusion
The trial court did not have to believe the affidavits and could have disregarded them as inadmissible under
Delivered: March 3, 2021
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