News To Me: Aggravated Robbery Appeal Reveals That Texas Does Not Allow For Jury Impeachment Based Upon Extraneous Prejudicial Information

The recent opinion of the Court of Appeals of Texas in Cox v. State, 2009 WL 692606 (Tex.App.-Tyler 2009), reveals that, unlike Federal Rule of Evidence 606(b), Texas Rule of Evidence 606(b) does not permit jurors to impeach their verdicts through allegations that extraneous prejudicial information tainted the deliberation process. And, as Cox makes clear, the consequence of this difference is that jurors cannot impeach their verdicts through allegations that their verdict was based upon a prejudicial newspaper story rather than the evidence presented at trial.

In Cox, Jeremy Shane Cox appealed from his conviction for the offense of aggravated robbery. According to Cox, he deserved a new trial because, inter alia, 

-a juror slept through deliberations;

-a juror read a newspaper article, read it a second time to other jurors, and then discussed it while in the jury room;

-jurors reached a decision "based on personal feelings;" and

-a juror "as[ked] to be told how to vote."  

Cox supported these allegations through the affidavits of two jurors.  Jury foreperson Kathy Shelton 

stated in her affidavit that some of the jurors based their verdict "on their personal feelings instead of the facts; particularly [a] juror who had been shot and her sister had been killed." She stated that "four jurors, including [Shelton,] held out all day for a not guilty verdict" but "felt pressured by the judge to come to a verdict and that is when we changed our vote." She stated that, during a break in deliberations, "Juror Atkinson was reading a newspaper article about the case out loud to the other jurors." Finally, she stated that one juror slept through deliberations and that another "asked to be told how to vote so she could get out of deliberations."  

In her affidavit, juror Nancy Bass stated:

Myself and three other jurors, including the jury foreman, Kathy Shelton, were voting not guilty. Juror Jay Brian Atkinson cam[e] to the jury room during the deliberations and stated he had read an article about the incident in the newspaper. He all but read the article in the deliberation room. He told the other jurors what the victim had said. I also felt pressure to vote guilty because the judge told us we weren't going home until we reached a verdict.... At polling of the jury I wanted to change my vote [but did not].  

Now, if Cox's appeal were being heard pursuant to Federal Rule of Evidence 606(b), the allegations in these affidavits regarding the sleeping juror, jurors using personal feelings, and a juror asking about how to vote all would have been inadmissible.  In relevant part that Rule states that 

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Because all of the above allegations concerned matters internal to the jury deliberation process, they would not have formed the proper predicate for jury impeachment.  Conversely, because the allegations concerning the newspaper article were allegations concerning "extraneous prejudicial information," they would have formed the proper predicate for jury impeachment.

The problem for Cox is that Texas Rule of Evidence 606(b) does not contain an exception for extraneous prejudicial information.  According to that Rule,

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. 

Thus, Cox could not achieve any jury impeachment (improper outside influences would be people such as relatives of a party threatening jurors or bailiffs feeding incorrect information to jurors), and the Court of Appeals of Texas affirmed his conviction. Which version of Rule 606(b) do readers prefer?

-CM