Texas Stamp


PD-1049-19 01/29/2020

1.  "Was the trial judge required to believe the affidavits of defense attorneys when the State did not object to their admission, or did she have discretion to disregard their contents?"

2.  "Does a police siren heard in the distance constitute a basis for which the trial court had no discretion but to grant a new trial as 'other evidence' received during deliberations?"


At Najar’s trial for evading in a vehicle, the arresting officer testified that he turned on his lights and siren when he saw Najar speeding, that Najar passed up multiple opportunities to pull over, and that a reasonable person would have known the officer was trying to detain him. The defense argued Najar didn’t know because he was driving so fast and surrounded by too many other cars.  The jury convicted.

Najar argued he was entitled to a new trial because “after retiring to deliberate, the jury ha[d] received other evidence.” Tex. R. App. P. 21.3(f).  He offered defense counsel’s affidavits describing a post-trial conversation with jurors. According to the affidavits, jurors heard a siren during deliberation coming from the street 15 floors below them.  The attorneys concluded that jurors drew from this experience that Najar would have been able to hear the siren, too. The State did not object to the affidavits but argued there was no outside influence. The trial court admitted the affidavits but denied the motion.

Najar re-urged his arguments on appeal. The majority held that because the State did not object to the affidavits, agreed with their factual basis, and offered no controverting evidence, there was no factual dispute for the trial court to resolve, and thus Najar established that the jury received outside evidence. It also held that this evidence was detrimental because it impacted a central issue in the case. The majority held the trial court had no discretion other than to grant a new trial.  The dissent argued that the affidavits should have been viewed in the light most favorable to the trial court’s ruling and that the siren was not “other evidence” under Rule 21.3(f).

The State echoes the dissenting opinion.  It argues that the court of appeals’s standard of review “removed all discretion from the trial court” and confused uncontroverted facts with undisputed facts. The State never agreed that jurors heard a siren or that it influenced them. It argues that, even without an objection, the judge could have disregarded inadmissible affidavits under Tex. Rule Evid. 606(b).

In its second point, the State contends that extraneous noise outside the courtroom does not constitute “other evidence” received during deliberation. Noting that something must be “outside the juror’s personal knowledge and experience” to be an “outside influence” for 606(b), it argues that jurors gained nothing beyond what they already knew from personal experience.  Finally, the State contends that the trial court’s implicit fact finding that Najar suffered no detriment was supported by the strength of the evidence that he knew the officer wanted him to stop, including his own driving and that other drivers were moving over for the officer.

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