author: Justice CARTER.

text:
    Natalie Michelle WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00049-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 1, 2005.
    Decided Dec. 14, 2005.
    Discretionary Review Granted March 22, 2006.

      Elizabeth DeRieux, Brown McCarroll L.L.P., Eric Albritton, Eric Albritton, P.C., Longview, for appellant.
    William Jennings, Dist. Atty., Ray Bowman, Asst. Dist. Atty., Longview, for ap-pellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

On Wednesday, August 18, 2004, sixteen-year-old Natalie Michelle White drove her ear into oncoming traffic on Loop 281 in Longview, Texas, and crashed into the vehicle in which eighteen-year-old Lauren Frazier was riding. White was taken to a hospital as a result of injuries she sustained; Frazier, who had planned to leave for her first year at Baylor University the following morning, died an hour after the crash. Police had White’s blood drawn at the hospital for purposes of alcohol testing. See Tex. TRANSp. Code ANN. § 724.012 (Vernon Supp.2005). Test results later revealed White’s blood alcohol contained .19 grams of alcohol per 100 milliliters of blood, an amount greater than twice the legal limit for persons over the age of twenty-one. See Tex. Pen.Code ANN. § 49.01(2)(B) (Vernon 2003).

The State charged White with intoxication manslaughter and sought to have her case transferred from juvenile court to district court. See Tex. Fam.Code Ann. § 54.02 (Vernon 2002). White did not oppose the transfer. White pled guilty to the charge December 8, 2004, and a petit jury was empaneled to determine White’s punishment. After hearing evidence and argument December 15, 2004, the jury assessed White’s sentence at nine years’ imprisonment, but did not grant community supervision. The trial court formally sentenced White in accordance with the jury’s verdict January 3, 2005.

White filed a motion for new trial, and the trial court conducted a hearing on the motion. The trial court overruled White’s motion for new trial March 10, 2005. White now appeals, raising five issues. For the reasons stated below, we affirm the trial court’s judgment.

I. Did the Trial Court Abuse Its Discretion By Denying White’s Motion for New Trial?

In one point of error, White presents the following, which we set forth exactly as written in White’s brief on appeal:

The Trial Court erred in denying Ms. White’s Motion for New Trial because four of the twelve jurors should never have been seated: two jurors were absolutely disqualified under Tex.Code Crim. P. 35.19, while two other jurors failed to respond to voir dire questions, misrepresenting their background and biases. Each of these four errors was sufficient to require a new trial. The cumulative effect of the four errors also required a new trial.

We interpret the central focus of this issue as a challenge to the trial court’s ruling on White’s motion for new trial.

The standard that we must use to review a ruling on a motion for new trial is well settled: abuse of discretion. See Lewis v. State, 126 S.W.3d 572, 579 (Tex.App.-Texarkana 2004, pet. ref'd). “We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable.” Acosta v. State, 160 S.W.3d 204, 210 (Tex.App.-Fort Worth 2005, no pet.) (citing Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004)). Therefore, while we ultimately may not have made the same decision as the trial court had we presided at the trial proceedings, we must nonetheless view the evidence presented at the hearing on the motion for new trial in the light most favorable to the trial court’s ruling, and we will hold a trial court has abused its discretion in ruling on a motion for new trial only when no reasonable view of the record could support the lower court’s ruling. Acosta, 160 S.W.3d at 210.

White raises two subissues in support of her contention that the trial court erred by-denying her motion for new trial: (A) jurors Vernessia Giddings and Lamar Fre-dell Jones were “absolutely” disqualified from jury service by Article 35.19 of the Texas Code of Criminal Procedure; and (B) jurors Roosevelt Evers and Mona Williams failed to respond to voir dire questions about their backgrounds and biases, and, therefore, engaged in juror misconduct that necessitates granting a new trial.

A. Giddings and Jones Were Absolutely Disqualified, But White Has Not Shown Harm.

The record before us shows both Giddings and Jones had misdemeanor theft by worthless check charges pending at the time they sat on White’s jury. Either the defense or the State may challenge a prospective juror for cause if that member of the venire panel is “under indictment or other legal accusation for misdemeanor theft or a felonyf.j” Tex.Code Crim. Proc. Ann. art. 35.16(a)(3) (Vernon Supp.2005). A panel member who appears to be under such legal accusation should not be empaneled absent consent from both parties. Tex.Code Crim. Proc. Ann. art. 35.19 (Vernon 1989). Because our law requires the trial court to exclude panel members who have theft charges pending against them at the time they are called to jury service, White asserts the trial court erred by denying her motion for new trial.

“A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 ... only if: (1) the defendant raises the disqualification before the verdict is entered; or (2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.” Tex.Code Crim. Proc. Ann. art. 44.46 (Vernon Supp.2005). In this case, White did not raise this issue at the trial court level until after the jury had returned its verdict. Therefore, White was required to show at the hearing on her motion for new trial that she suffered “significant harm” as a result of the service of the suspect jurors.

The trial court’s denial of White’s motion for new trial indicates the court below concluded White had not met her burden of showing “significant harm” directly attributable to the service of the suspect juroi's. Accordingly, if any reasonable view of the evidence supports the trial court’s conclusion that White did not meet this burden, the standard of appellate review requires us to affirm the trial court’s ruling. Accord Ford v. State, 129 S.W.3d 541, 548-49 (Tex.App.-Dallas 2003, pet. ref'd) (concluding trial court’s decision was not “arbitrary” or “unreasonable” in concluding juror did not lie during voir dire; denial of motion for new trial affirmed).

A defendant’s conviction and sentence does not alone constitute a showing of “significant harm” required by Article 44.46 of the Texas Code of Criminal Procedure. State v. Read, 965 S.W.2d 74, 77 (Tex.App.-Austin 1998, no pet.); Hernandez v. State, 952 S.W.2d 59, 71 (Tex.App.-Austin 1997), rev’d on other grounds, 957 S.W.2d 851 (Tex.Crim.App.1998). Instead, the record from the post-trial hearing must demonstrate the defendant’s alleged substantial harm is directly attributable to the service of the objectionable jurors. See, e.g., Perez v. State, 11 S.W.3d 218, 221 (Tex.Crim.App.2000); Perez v. State, 41 S.W.3d 712, 716 (Tex.App.-Corpus Christi 2001, no pet.) (opinion on remand); Ristoff v. State, 985 S.W.2d 623, 623-24 (Tex.App.Houston [1st Dist.] 1999, no pet.).

The facts in the case now before us most closely parallel those presented to the First Court of Appeals in Ristoff There the appellant was convicted under the Texas Clean Air Act of three misdemeanor offenses of outdoor burning. Ristoff asserted he was entitled to a new trial because one of the jurors in his case was under indictment for welfare fraud. Ristoff, 985 S.W.2d at 623. The State did not dispute the status of the objected-to juror’s indictment, and the record was also clear that the juror was unaware of the indictment at the time of Ristoffs trial. Id. at 623-24. On appeal, the First Court of Appeals noted “at the hearing on appellant’s motions [for new trial], appellant made no attempt to show significant harm, nor is any apparent.” Id. at 624. The appellate court then held Ristoff had failed to meet his burden of proof on appeal, and the court overruled his point of error. Id.

In the case now on appeal, White has not cited this Court to any evidence in the record that demonstrates she suffered harm as a direct result of Giddings and Jones’ jury service. However, after reviewing the entire record of the hearing on the motion for new trial, we find there is no evidence that Giddings’ and Jones’ jury service directly caused White “significant harm.” Moreover, the trial court heard testimony that both Giddings and Jones were unaware of the pending criminal charges. Viewing this evidence in the light most favorable to the trial court’s ruling, as we must, this evidence would support the court’s conclusion that White did not suffer any direct harm, let alone “substantial harm,” that could be attributable to the fact Giddings and Jones had charges pending against them at the time of their jury service. Accordingly, we cannot say the trial court acted arbitrarily or unreasonably by overruling White’s motion for new trial on the basis of Giddings’ and Jones’ jury service.

B. Jurors Williams and Evers Did Not Engage in Misconduct Requiring a New Trial.

White next asserts the trial court erred in overruling her motion for new trial because the record purportedly shows jurors Williams and Evers did not truthfully answer questions during voir dire. This lack of candor, according to White, resulted in juror misconduct that should entitle her to a new trial. Because the alleged misconduct occurred during voir dire, the trial court was required to determine (1) whether the juror or jurors withheld information, (2) whether the withheld information was material, and (3) whether White used due diligence in eliciting the withheld information omitted by the juror or jurors during voir dire. See Franklin v. State, 138 S.W.3d 351, 355-56 (Tex.Crim.App.2004). On appeal, we review the trial court’s ruling for abuse of discretion. See Ford, 129 S.W.3d at 547-49 (applying abuse of discretion during appellate review of denial of new trial based on allegedly withheld voir dire information).

■ 1. Williams

White first argues juror Mona Williams failed to inform the litigants dim-ing voir dire that she had been the victim of a drunk driver. White’s brief on appeal focuses on Williams’ alleged failure to respond to a question posed by the trial court during its voir dire of the panel:

[Trial Court]: Is there anyone on the panel — and again, I just want a show of hands — who has experienced a situation where either a close friend, or a family member was seriously injured or a death was caused due to an intoxicated driver?

(Emphasis added.) The record before us does not show Williams responded affirmatively to the trial court’s question. Nor does the record reveal that Williams, at any other time during voir dire, informed the parties or the court that she had been the victim of a drunk driver. However, at the hearing on White’s motion for new trial, both Giddings and John Moyers (another juror) testified, without objection, they had heard juror Williams tell others, before deliberating, that she had been the victim of a drunk driver.

At oral argument, White asserted that the trial court’s use of the phrase “family member” necessarily includes the individual to whom that question is being asked, and because Williams did not respond regarding her personal victimization, she withheld material information during voir dire. We cannot say that it would be unreasonable for a jurist to disagree; that is to say, it is not arbitrary or unreasonable for a reasonable jurist to interpret the trial court’s question as one that seeks information about persons (friends or family) to the exclusion of the person to whom the question is being asked. Therefore, we cannot say that no reasonable view of the record supports the trial court’s decision.

Further, the Texas Court of Criminal Appeals has “long insisted” trial counsel “ask specific questions, not rely on broad ones,” to satisfy the duty to use due diligence in uncovering bias during voir dire. Gonzales v. State, 3 S.W.3d 915, 917 (Tex.Crim.App.1999) (citing Brandon v. State, 599 S.W.2d 567, 578 (Tex.Crim.App.1979)); see also Brasher v. State, 139 S.W.3d 369, 373-74 (Tex.App.-San Antonio 2004, pet. ref'd). In the case now before us, the trial court did not specifically ask whether any members of the panel had themselves been a victim of a drunk driver. Nor did the State or the defense ask such a specific question. Had such a direct, specific question been asked, and had Williams then failed to answer, then the record would reflect juror misconduct. Accord Jones v. State, 596 S.W.2d 134 (Tex.Crim.App. [Panel Op.] 1980). In this case, however, the record does not so reflect misconduct.

At best, White’s point of error on appeal is an attempt to rely on a broad-form question that, when reasonably examined on appeal, did not directly seek to elicit the allegedly withheld information. Cf id. Accordingly, because the record does not demonstrate that Williams withheld information or that White exercised the requisite due diligence by asking any specific, direct question that would have elicited the now-complained-of information, and because White is not entitled to rely on broad-form questions to meet the due diligence requirement, we cannot say the trial court abused its discretion by overruling White’s motion for new trial on the basis of Williams’ jury service.

2. Evers

White next asserts Evers engaged in misconduct by failing to disclose his prior misdemeanor convictions for assault and terroristic threat. During its voir dire, the State asked:

There are those of you who have had an interest in the outcome of a criminal case. Les Ferguson, I know your brother was involved in a matter, and I know you cared about what happened in that case and your brother did, too. So I’ll point that out that you may have family, you may have friends that were victims in a case. You may also have a situation where you had someone close to you that was a defendant in a case. If there’s any situation like that and we haven’t asked it, would you raise your hand now and we’ll deal with that individually?

(Emphasis added.) The record shows only one panel member raised his hand, and that person was not Evers. At the hearing on White’s motion for new trial, certified documents were admitted into evidence showing Evers had been convicted of two different misdemeanors, assault and terroristic threat. White now argues, “Mr. Evers’ choice to withhold that information from the court and the parties, in violation of his oath, requires a new trial in this case.”

At oral argument, White suggested that a reasonable interpretation of the State’s question would include the prospective jurors themselves within the breadth of the phrases “family” or “friends” and, thus, Evers had an obligation to inform the parties about his criminal convictions. However, a different — equally logical interpretation — of the State’s question is that it concerned only whether family members or friends (not the panelists themselves) had an interest in the outcome of a criminal case. The question regarding a “defendant in a case” clearly referred to third persons (“someone close to 'you”). Thus, to the extent that the trial court could have reasonably concluded the State’s question was not designed to elicit the specific information allegedly withheld by Evers, we cannot say the trial court’s ruling was arbitrary or unreasonable.

Additionally, neither the parties nor the trial court asked the veniremembers whether they had ever been charged or convicted of any crime above a class C misdemeanor. White did ask the panel members if they knew anyone who had been on community supervision, and apparently, a large number of people raised their hands. However, the record before us does not show White followed up that question with further individual questioning of each member of the panel who had raised his or her hand regarding the substance of each person’s affirmative response to having known someone who had been on community supervision. Thus, we cannot tell from this record that Evers ever affirmatively withheld any such information. The record before us does not indicate which veniremembers raised their hands, nor does the record demonstrate White probed further into these responses by asking more specific questions of each panelist. See Gonzales, 3 S.W.3d at 917 (“counsel must ask follow-up questions after uncovering potential bias”).

Accordingly, as the record does not demonstrate that Evers withheld information or that White exercised due diligence in attempting to elicit the complained-of information from Evers, and as White is not entitled to rely on broad-form questions in lieu of specific questions to demonstrate she exercised due diligence, we must conclude the trial court did not err in overruling the motion for new trial. This point of error is overruled.

II. Must a Trial Court Have a PSI Prepared for the Jury’s Consideration?

White contends the trial court erred by not ordering the preparation of a presentence investigation (PSI) report until after the jury had assessed White’s sentence. Article 42.12, Section 9(a) of the Texas Code of Criminal Procedure requires a judge in a felony case to order that a PSI report be prepared “before the imposition of sentence.” Tex.Code Crim. Proc. ÁNN. art. 42.12, § 9(a) (Vernon Supp. 2005). White filed a motion for a PSI report December 8, 2004. In ordering a PSI report, the record before us clearly shows the trial court waited to act on White’s motion until after the jury returned its punishment verdict. On appeal, White cites Whitelaw v. State, 29 S.W.3d 129, 132 (Tex.Crim.App.2000), and contends the trial court is always required to order a PSI report when requested by a defendant, even if the defendant is not eligible for community supervision. White then argues that, because only the jury had the authority to grant community supervision in this case (based on her submission to the jury of the issue of punishment), the PSI report should have been prepared before trial and made available to the jury. White contends the PSI report would have provided the jury with additional, necessary information regarding the suitability of community supervision as an appropriate punishment because PSI reports generally include suggestions about the restrictions that could be imposed by the trial court, information about rehabilitation programs that would have been available to White through community supervision, as well as facts about other facets of community supervision.

Article 42.12, Section 9(g) of the Texas Code of Criminal Procedure provides, “A judge is not required to direct an officer to prepare a presentence report in a felony case under this section if: (1) punishment is to be assessed by a jury-” Tex.Code Crim. Proc. Ann. art. 42.12, § 9(g). While Section 9(g) does not expressly forbid the preparation of a PSI report, nor the publishing of a PSI report to a jury, the Legislature has not expressed a clear intent to require a PSI report for a jury’s use in assessing punishment. Nor will we overreach our authority by imposing such a requirement. This point of error is overruled.

III. Did the Trial Court Violate White’s Sixth Amendment Right to Counsel By Allowing a Part of the Trial To Be Conducted Without Her Presence?

White also contends the trial court erroneously permitted part of the trial to be conducted without White’s presence. The record shows David Brabham, judge of the 188th Judicial District Court of Gregg County, was in charge of initially greeting all the jurors who had received a jury summons for the week of December 13, 2004. It was then Judge Brabham’s job to divide that general assembly into smaller panels, which would then be sent to the various trial courts for jury selection in the individual cases. Before dividing the prospective jurors into panels, it was also Judge Brabham’s job to qualify each prospective juror within this assembly. Only after completing that task did Judge Brabham send the smaller panels to the various trial courts.

During the initial qualification proceedings, Judge Brabham apparently had several individual conversations with various prospective jurors. One of those with whom he talked was Giddings. According to Giddings’ testimony at the hearing on White’s motion for new trial, Giddings told Judge Brabham that she had been previously charged with theft by worthless check, but that she also told the judge that she believed those charges had been dismissed. This conversation between Judge Brabham and Giddings was not recorded, preserved, or transcribed for this appeal.

Texas law provides:

In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.

Tex.Code Crim. PROC. Ann. art. 38.03 (Vernon 1989). Nonetheless, the Texas Court of Criminal Appeals has repeatedly held that “[t]he general assembly portion of jury selection is not considered part of ‘the trial’ and therefore the accused is not entitled to be present.” Jasper v. State, 61 S.W.3d 413, 423 (Tex.Crim.App.2001) (citing Moore v. State, 999 S.W.2d 385, 399 (Tex.Crim.App.1999); Chambers v. State, 903 S.W.2d 21, 31 (Tex.Crim.App.1995)). The “general assembly” portion of the proceedings is not considered part of an accused’s trial “because ‘prospective jurors who are summoned to a general assembly have not been assigned to any particular case [and] [t]he judge presiding over the general assembly is assigned for that purpose only at that time and has no given case in mind.’ ” Jasper, 61 S.W.3d at 423 (quoting Chambers, 903 S.W.2d at 31).

In the case now before us, White’s complaint concerns a conversation that took place during the general assembly of all prospective jurors. Because neither our constitution nor our statutes mandate White’s presence at these proceedings, no error has been shown. Cf. Moore, 999 S.W.2d at 399. We overrule this point of error. •

IV. Is Rule 606(b) of the Texas Rules of Evidence Unconstitutional As Applied to White?

White further contends Rule 606(b) of the Texas Rules of Evidence is unconstitutional as applied in her case because Rule 606(b) prevented her from presenting evidence that might otherwise show she suffered “significant harm to the jury service of Williams, Jones, Evers, and Gid-dings.” The rule at issue states:

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 to the effect of anything 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.

Tex.R. Evid. 606(b) (emphasis added). The United States Supreme Court (interpreting Federal Rule 606(b)), the Texas Supreme Court, and this Court have each previously addressed the constitutionality of Rule 606(b). Each time, Rule 606(b) has been held constitutional.

A. The Federal Counterpart to Tex.R. Evid. 606(b) Has Not Been Held Unconstitutional.

In Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the United States Supreme Court reviewed whether a trial court had erred by excluding evidence of alleged juror misconduct pursuant to Fed.R.Evid. 606(b). Tanner and his codefendants were convicted of mail fraud and conspiring to defraud the United States. Id. at 109-10, 107 S.Ct. 2739. Tanner introduced evidence from jurors at the hearing on his motion for new trial that some jurors had consumed alcohol, used marihuana, and consumed cocaine during the course of the trial. Id. at 113-16, 107 S.Ct. 2739. The trial court held the jurors’ affidavits regarding the drug and alcohol use were inadmissible. Id. at 115,107 S.Ct. 2739. After reviewing the legislative and cultural histories of Rule 606(b), as well as the public policy arguments in favor of Rule 606(b)’s exclusion of juror testimony regarding deliberations, Justice O’Connor, writing for the majority, disagreed with Tanner’s contention that the Constitution should compel the trial court to allow Tanner to present juror testimony about alleged drug and alcohol abuse by jurors. Id. at 116-17, 127, 107 S.Ct. 2739. In reaching this conclusion, Justice O’Connor noted that the parties may still “seek to impeach the verdict by nonjuror evidence of misconduct.” Id. (referencing United States v. Taliaferro, 558 F.2d 724, 725-26 (4th Cir.1977) (trial court considered records of club where jurors dined and testimony of bailiff who accompanied jurors)).

B. The Texas Supreme Court Has Held Tex.R. Evid. 606(b) To Be Constitutional.

In Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 364 (Tex.2000), the issue presented was “whether procedural and evidentiary rules may constitutionally prohibit jurors from testifying post-verdict about statements made during deliberations, unless such statements concern outside influences.” Jackson had sued Golden Eagle Archery and several other defendants for injuries he sustained while drawing back the string of a compound bow. Id. The jury found Jackson forty-five percent at fault for the injuries, and the trial court awarded Jackson approximately $26,700.00 in damages based on the jury’s verdict. Id. Jackson filed a motion for new trial alleging juror misconduct and submitted affidavits from several jurors, the substance of which concerned statements made by several of the jurors during deliberations. Id. at 364-65. The trial court held the affidavits were incompetent under the civil rules of evidence and overruled Jackson’s motion for new trial. Id. at 366. On petition for review, the Texas Supreme Court examined the various public policies in support of Rule 606(b), as well as the rule’s foundation in Lord Mansfield’s prohibition against post-verdict attacks via juror testimony. Id. at 367. The Golden Eagle court ultimately concluded, “[Wjhile failure to disclose bias is a form of juror misconduct that justifies a new trial under the appropriate circumstances, proof of a juror’s failure to disclose bias must come from some source other than a fellow juror’s testimony about deliberations.” Id. at 371. The Texas Supreme Court thus held:

Rules 327(b) and 606(b) do not deprive the litigants of a fair trial under the Texas Constitution, nor do they fail to afford litigants due process. The rules are designed to balance concerns about the threat of jury misconduct with the threat from post-verdict juror investigation and impeachment of verdicts.

Id. at 375.

C. This Court and Other Texas Courts of Appeals Have Held Rule 606(b) To Be Constitutional.

This Court has previously held the current Rule 606(b) is not unconstitutional. In Hines v. State, 3 S.W.3d 618, 620 (Tex.App.-Texarkana 1999, no pet.), the appellant filed a motion for new trial alleging juror misconduct. Hines attached to his motion an affidavit from one of the jurors; the affidavit stated at least two members of the jury had discussed the impact of parole law on any punishment Hines might receive. Id. This Court then reviewed the history of Rule 606(b), the competing public policy issues supporting such a rule, and the effects Rule 606(b) would have on the rights of an appellant attempting to show harm arising from jury misconduct. Id. at 622-23. Ultimately, this Court determined Tex.R. Evid. 606(b) properly balanced the public’s need to protect the sanctity of jury deliberations against the needs of an appellant trying to pry into the minds of jurors during post-verdict proceedings. This Court then overruled Hines’ constitutional challenge.

Similarly, other courts of appeals have upheld Rule 606(b). See, e.g., Easly v. State, 163 S.W.3d 839, 842 (Tex.App.-Dallas 2005, no pet.) (Rule 606(b) prohibits trial court from considering juror affidavits at hearing on motion for new trial; such affidavits are incompetent evidence to support granting of motion for new trial); State v. Ordonez, 156 S.W.3d 850, 852 (Tex.App.-El Paso 2005, no pet.) (trial court erred by granting motion for new trial based solely on juror affidavits concerning deliberations; such evidence was incompetent; award of new trial reversed); State v. Lewis, 151 S.W.3d 213, 219-20 (Tex.App.-Tyler 2004, pet. ref'd) (trial court erred in granting new trial where sole basis was juror affidavit regarding consideration of how parole would apply to defendant’s sentence; affidavit not competent evidence under Rule 606(b)); Sanders v. State, 1 S.W.3d 885, 887 (Tex.App.-Austin 1999, no pet.) (“606(b) unquestionably makes proving jury misconduct in criminal trials more difficult than it was under prior rules. But the rule does not preclude proof of jury misconduct by other means, such as through the testimony of a nonju-ror with personal knowledge of the misconduct.”).

D. Rule 606(b) Is Not Unconstitutional As Applied to White in this Case.

During the hearing on White’s motion for new trial, White attempted to ask Jones, “Did you also begin to discuss what you believed to be the appropriate punishment in this case [during the jury’s deliberations]?” (Apparently White was trying to show that juror Williams had been previously involved in an accident with a drunk driver, that the person had not been punished, and that Williams had failed to disclose this alleged bias during voir dire.) The State objected to White’s question, stating the question was prohibited by Tex.R. Evid. 606(b). The trial court sustained the State’s objection. White asserted that, under Nelson v. State, which requires her to show she suffered significant harm as a result of an absolutely disqualified juror’s service, she must be allowed to inquire into the jury’s deliberations to show such harm; White’s counsel further stated, “If the Court does not allow us to do this, we are being denied due process under the Federal Constitution, as well as due course of law under both the Code of Criminal Procedure and the Texas Constitution. ...” The trial court continued to sustain the objection. The trial court further denied White the opportunity to have the witness testify to the same evidence as part of a bill of exceptions to the trial court’s ruling. The trial court held that allowing the bill of exceptions would be tantamount to permitting the witness to testify, and such was expressly prohibited under the Rules of Evidence.

The record before us suggests White had planned to call juror Williams to testify about her deliberations with the other jurors. Pursuant to Rule 606(b), the State objected to any such testimony, an objection the trial court sustained (but only to the extent Williams might testify about jury deliberations, and not as to matters outside evidence otherwise prohibited by Rule 606). White again challenged the constitutionality of Rule 606(b) as applied in her case and asked to be allowed to present evidence in a bill of exceptions, a request the trial court denied. A similar attempt to discuss jury deliberations occurred during the testimony of Giddings and John Moyers. The State objected, citing Rule 606(b); the court sustained the State’s objections; and the court further prohibited White from soliciting testimony from the prospective witnesses about jury deliberations.

Rule 606(b) of the Texas Rules of Evidence was changed to its present text and became effective March 1, 1998. Sanders, 1 S.W.3d at 887. In commenting on the new rule, Cathleen C. Herasimchuk (now Judge Cochran) wrote:

The 1998 version of Rule 606(b) apparently wipes out Buentello, and all of its progeny. Henceforth, the same rule that has applied to offering the testimony or affidavits of jurors in Texas civil cases will apply to criminal cases.... This is a dramatic change in criminal proceedings.... The new rule is a vast improvement over the former Criminal Rule 606(b) which threw open the door of the jury room too widely, but it remains to be seen whether the revised Rule 606(b) has closed shut the jury deliberation room too firmly in criminal cases.

Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook, Rule 606(b), at 558-59 (3d ed. 1998) (as quoted in Sanders, 1 S.W.3d at 887) (emphasis added).

Our research has revealed only one opinion that might be read to support White’s position on this issue. In Ex parte Green, 159 S.W.3d 925 (Tex.Crim.App.2004), Judge Johnson, joined by Judge Price, filed a statement dissenting from the Texas Court of Criminal Appeals’ decision to dismiss an application for writ of habeas corpus. Judge Johnson wrote:

[T]he prohibition [embodied by Rule of Evidence 606(b)] sometimes results in improper conduct in the jury room that impermissibly affects the verdict. Here, it was improper speculation about parole. In another case, it may be a juror using personal experience, unrelated to the case at bar, to influence the vote of other jurors, such as a juror who has been burglarized talking about the sense of violation that such victims feel and urging conviction or severe punishment based not on the burglary, but on the juror’s own emotional distress in response to a different burglary. We should not invade the jury room for little purpose, but due process demands that there be a way to address blatant misconduct. Rule 606(b) bars any examination of the process. A trial cannot be fair if jury deliberations are tainted.
The inability to challenge jury misconduct is a violation of applicant’s right to due process and a fair trial. I respectfully dissent.

Id. at 926 (emphasis added). However, Judge Johnson’s and Price’s view has not yet been adopted by a majority of the Texas Court of Criminal Appeals, and the weight of the authority from the United States Supreme Court and the Texas Supreme Court, as well as the opinions of this and other Texas courts of appeals, counsels against adopting their view at this time.

Therefore, absent guidance to the contrary from the Texas Court of Criminal Appeals, binding precedent forecloses this issue against White. Cf. Davis v. State, 119 S.W.3d 359, 365-66 (Tex.App.-Waco 2003, pet. ref'd) (testimony of jury’s consideration of parole application not permitted under Rule 606(b) at motion for new trial hearing; Rule 606(b) constitutional on its face and as applied); Musgrove v. State, 82 S.W.3d 34, 38-39 (Tex.App.-San Antonio 2002, pet. ref'd) (application of Rule 606(b) did not violate appellant’s due process rights); Hicks v. State, 15 S.W.3d 626, 629-30 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding Rule 606(b) is constitutional under both state and federal constitutions guaranteeing fair and impartial jury, and citing Hines v. State, 3 S.W.3d 618 (Tex.App.-Texarkana 1999, pet. ref'd), for support); Sanders, 1 S.W.3d at 888 (district court correctly excluded juror’s post-verdict affidavit pursuant to Rule 606(b)). We overrule this point of error.

V. Did White Receive Ineffective Assistance of Counsel at Trial?

Finally, in a footnote of her brief, White contends, in conjunction with her second, third, and fourth points of error, that she received ineffective assistance of counsel. At oral argument, White’s counsel conceded the appellate record is insufficient to support a claim of ineffective assistance at this time. Accordingly, we overrule White’s claim of ineffective assistance. Cf. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999) (record on direct appeal “simply undeveloped” and did not sufficiently reflect fadings of trial counsel to support claim of ineffective assistance on direct appeal).

VI. Conclusion

For the reasons stated, we affirm the trial court’s judgment.

      . White waived her right to an indictment, and the State filed an information and complaint in the 188th Judicial District Court. The County Courts at Law of Gregg County have the same criminal jurisdiction as district courts, except for death penalty cases. See Tex. Gov’t Code Ann. § 25.0942(a) (Vernon 2004). Because the juvenile certification proceedings had been conducted in County Court at Law Number 1, White agreed to have the adult proceedings transferred to that court from the district court.

      . "Material” information is that which tends to show a juror's bias or prejudice. Ford, 129 S.W.3d at 547 (citing Decker v. State, 717 S.W.2d 903, 907 (Tex.Crim.App.1983) (op. on reh'g)).

      . In Jones, a person served on a criminal jury after not disclosing her prior occupation as a Bexar County jailer. Jones, 596 S.W.2d at 136. During voir dire, defense counsel had asked the panelists if anyone had "close friends” who were engaged in law enforcement. Id. After noting the members of the venire had never been directly asked about the prior work histoiy of each, the Texas Court of Criminal Appeals noted:
      The voir dire examination is not an exercise to test the ability of defense counsel to joust with a prospective juror in an attempt to see what quantum of information he may or may not be withholding. The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duly assigned to it. However, defense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror’s inability to be impartial, truthful, and the like. Unless defense counsel asks such questions, we must hold, as we do here, that the purportedly material information which a juror fails to disclose is not really "withheld” so as to constitute misconduct which would warrant a reversal.

        Id. at 137 (citations omitted).

      . The record in this case is clear: White was eligible for community supervision.

      . And cf. Maldonado v. Mo. Pac. Ry. Co., 798 F.2d 764, 770 (5th Cir.1986) (Rule 606(b) encourages free discussion in jury room); Salazar v. Dretke, 419 F.3d 384, 399 (5th Cir. 2005) (construing Texas Rule 606(b) in conjunction with federal law and precedent, no Supreme Court precedent obligates state courts to admit testimony from jurors concerning their internal deliberations). It should be noted that Tanner had couched his due process claim in terms of a violation of the Sixth Amendment’s right to counsel. Justice O’Connor’s opinion, however, appeared to employ a much greater breadth of analysis than merely focusing on Tanner’s claim of a Sixth Amendment right to counsel violation.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Ex Parte Edward Michael YOUNG.
    No. 08-04-00251-CR.
    Court of Appeals of Texas, El Paso.
    Dec. 15, 2005.
    Discretionary Review Granted March 29, 2006.

      Robin Norris, El Paso, for Appellant.
    Jaime E. Esparza, Dist. Atty., El Paso, for State.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from an order of the El Paso County Criminal Law Magistrate Court (Jail Magistrate) denying applicant relief on his pretrial application for writ of habeas corpus and motions to dismiss the prosecution. The Jail Magistrate was acting on assignment from the 168th District Court of El Paso County, Texas. We reverse the order of the court.

I. SUMMARY OF THE EVIDENCE

Appellant was and remains charged with the offense of murder. He was arrested on September 20, 1991, and he was released on bond on the same day. He was indicted on February 16, 1993 on indictment number 68448. On July 21, 1995 in the 168th District Court, Appellant was convicted and sentenced to sixty years’ imprisonment. This Court affirmed the judgment and the Court of Criminal Appeals refused Appellant’s petition for discretionary review. The judgment became final on March 4, 1998 with the issuance of this Court’s mandate.

Appellant subsequently filed a post-conviction application for writ of habeas corpus alleging, in part, that he had not received effective assistance of counsel because his trial counsel failed to move to dismiss the indictment for lack of speedy trial under Articles 32.01 and 28.061 of the Texas Code of Criminal Procedure. The 168th District Court filed findings of fact and conclusions of law in the Court of Criminal Appeals. That court denied relief on October 4, 2000.

On October 10, 2000, Appellant filed a federal petition for writ of habeas corpus raising the same issue of ineffective assistance of counsel raised in the prior state proceedings. The United States District Court for the Western District Court of Texas issued an opinion denying Appellant’s petition. Appellant appealed, and on January 9, 2004, the United States Court of Appeals for the Fifth Circuit delivered an opinion reversing the District Court and granting Appellant relief.

Appellant filed motions in the 168th District Court under former articles 28.061 and 32.01 of the Code of Criminal Procedure asserting that the indictment against him should be dismissed. In the interim, the State obtained a new murder indictment against Appellant. Appellant filed a pretrial writ of habeas corpus asserting that the prosecution should be dismissed with prejudice. The Jail Magistrate determined that, while the State did not have good cause for the delay in initially indicting Appellant, the statute involved was unconstitutional. Also, the Jail Magistrate determined that the prior holdings of the courts that had previously ruled on Appellant’s claims, did not preclude consideration of the statute’s constitutionality. The Court denied Appellant’s motions for dismissal and his application for writ of habeas corpus. It is from this order that Appellant appeals.

II. DISCUSSION

In Issue No. Two, Appellant maintains that the court erred in holding that the prosecution for murder was not barred because former article 28.061 violates the Texas Constitutional prohibition against interference by one department of government with the prerogatives of another. Former article 32.01 of the Code of Criminal Procedure read:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail. Acts of 1965, 59th Leg., R.S. ch. 722, § 1, 1965 Tex. Gen. Laws 441.
Tex.Code CRIM. Proc. Ann. art. 32.01.

Former article 28.061 of the Code of Criminal Procedure read:

If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article or Article 32.01 of this code is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute. Act of June 16, 1977, 65th Leg., R.S. ch. 787, § 4, 1977 Tex. Gen. Laws 1972, amended by Act of June 17, 1987, 70th Leg., R.S., ch. 383, § 1, 1987 Tex. Gen. Laws 1885.
TexCode CRim. Proo. Ann. art. 28.061.

The Separation of Powers Clause provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
Tex. Const. art II, § 1.

The trial court made the following conclusion regarding the constitutionality of article 28.061:

Former Article 28.061, in so far as it provided for dismissal with prejudice for Article 32.01 dismissals, constituted a violation of the constitutional separation of powers doctrine embodied in Article II, Sec. 1 of the Texas Constitution. This provision was unconstitutional under the same analysis utilized in Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987).

The Appellant maintains that article 28.061 is constitutional and does not effect a violation of the separation of powers clause of the Texas Constitution. The State requests that this Court hold that both articles 32.01 and 28.061 are unconstitutional, or, at least, to follow the magistrate’s conclusion as well as the holdings of several intermediate appellate courts and hold that article 28.061 is unconstitutional. See Hixson v. State, 1 S.W.3d 160, 163 (Tex.App.-Corpus Christi 1999, no pet.); Ex parte Barnes, 959 S.W.2d 313, 321 (Tex.App.-Fort Worth 1997, pet. dism’d, improvidently granted); State v. Condran, 951 S.W.2d 178, 192 (Tex.App.-Dallas 1997), pet. dism’d, improvidently granted, 977 S.W.2d 144 (Tex.Crim.App.1998); contra Norton v. State, 918 S.W.2d 25, 29 (Tex.App.-Houston [14th Dist.] 1996), pet. dism’d, improvidently granted, 969 S.W.2d 3 (Tex.Crim.App.1998); Ex parte Torres, 966 S.W.2d 723, 726-29 (Tex.App.-San Antonio 1998), vacated on other grounds, 993 S.W.2d 662 (Tex.Crim.App.1999); Steinmetz v. State, 968 S.W.2d 427, 430 (Tex.App.-Texarkana 1998, no pet.); Ex parte Mallares, 953 S.W.2d 759, 762-63 (Tex.App.-Austin 1997, no pet.).

The trial court’s ruling on the constitutionality of a statute is a question of law which we review de novo. Gonzalez v. State, 938 S.W.2d 482, 484 (Tex.App.-El Paso 1996, pet. ref'd). We review mixed questions of law and fact which do not turn on an evaluation of credibility and demean- or de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The facts in this case are not in dispute. We review the trial court’s ruling de novo. Frenzel v. State, 963 S.W.2d 911, 914 (Tex.App.-Waco 1998, pet. ref'd). When an attack on the constitutionality of a statute is made, courts begin with the presumption that the statute is valid. Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). One challenging a statute carries the burden to establish that the statute is unconstitutional. Luquis v. State, 72 S.W.3d 355, 365 (Tex.Crim.App.2002).

A district attorney is part of the judicial branch of government, and is therefore protected under the Separation of Powers Clause. See Meshell v. State, 739 S.W.2d 246, 252 (Tex.Crim.App.1987). With regard to the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney’s exclusive prosecutorial function, except as authorized by an express constitutional provision. Id. at 254-55. In Meshell, the Court of Criminal Appeals found that the Texas Speedy Trial Act, article 32A.02 of the Texas Code of Criminal Procedure, was not directed at the commencement of trial; rather, it focused upon an announcement of “ready” by the prosecution and it placed no burden upon the State to proceed to trial. See id. at 255-57. Accordingly, the Court found the Speedy Trial Act, along with its enforcement mechanism, article 28.061, to be void on the ground that it violated the Separation of Powers Clause of the Texas Constitution. Id. at 258. The Court explained that the Speedy Trial Act was not a legitimate attempt to provide procedural guidelines for enforcing a defendant’s constitutional right to a speedy trial because it did not incorporate the traditional Barker speedy trial factors as part of the constitutional inquiry. Id. at 256-57.

In urging that we uphold the trial court’s ruling, the State maintains that the prior versions of articles 28.061 and 32.01 pertinent to our discussion suffer from the same defects. Specifically, the State contends that it is not apparent what substantive right the Legislature was attempting to provide procedural guidelines for in enacting articles 32.01 and its enforcement mechanism, article 28.061. Next, the State maintains that article 28.061 creates a duty not necessitated by the Due Process Clause which adversely affects the prosecutor’s ability to exercise his discretion in deciding when to present a case to the grand jury. The State also argues that the “good cause” provision in article 32.01 allows the judiciary wide discretion in denying a defendant’s motion to dismiss, and it also fails to set out procedural guidelines to protect any procedural right or prevent an encroachment on the prosecutor’s exclusive authority to decide when to present a case to the grand jury. Finally, the State contends that articles 32.01 and 28.061 operate in an arbitrary and capricious manner in that the district courts have varying terms of court per year.

The majority of courts that have considered the constitutionality of the two statutes applicable in the present case have found that article 32.01 is constitutional standing apart from article 28.061. See Smith v. State, 998 S.W.2d 683, 692 (Tex.App.-Corpus Christi 1999, pet. ref'd). However, some courts, including the Smith court, have held that when article 28.061 is considered in conjunction with 32.01, that the bar to prosecution impermissibly infringed upon a valid prosecutorial function and the statutes did not take into consideration the effect the varying lengths of terms of court and to other situations beyond the State’s control. Id. at 693.

On the other hand, other courts have determined that article 32.01 implements the constitutional right to indictment. Norton, 918 S.W.2d at 30 (Hudson, J., concurring); Ex parte Mallares, 953 S.W.2d at 763. Moreover, while the statute interferes to some extent with the prosecutor’s discretion, the good cause provision in the statute which allows the district court to order the prosecution continued on a showing of good cause supported by affidavit, provides a safety valve for prosecutors who, with due diligence, cannot meet the statutory timetable. Ex parte Torres, 966 S.W.2d at 727. Also, the existence of the good cause provision allows the consideration of such matters as the Barker factors and the varying lengths of the terms of court. Id. at 726-27. We find that article 32.01 is constitutional.

Some courts have found that while article 32.01 is constitutional, article 28.061, the enforcement mechanism, is unconstitutional as being a violation of the separation of powers doctrine. See Ex parte Barnes, 959 S.W.2d at 320; Condran, 951 S.W.2d at 191. The concern expressed in those opinions is that given the wide discrepancies in the terms of courts and the uncontrollable vagaries of grand jury decision making, the State will not be able to adhere to the statutory timetable notwithstanding the mitigating effect of the good cause provision. Ex parte Barnes, 959 S.W.2d at 320; Condran, 951 S.W.2d at 190-91. However, we agree with the Torres court that, “We fail to understand why such factors beyond a prosecutor’s control would not provide grounds for good cause for delay.” Ex parte Torres, 966 S.W.2d at 728. We find that both prior articles 32.01 and 28.061 are constitutional. Accordingly, we sustain Appellant’s Issue No. Two.

Having sustained Appellant’s Issue No. Two, we find it unnecessary to address his remaining issue. We reverse the court’s order denying relief and we remand the cause with instructions to the trial court to dismiss the indictment.

      . The companion case, 08-04 — 00250-CR, to this cause concerns the original indictment, trial court cause no. 68448. That indictment was never dismissed. This cause, Ex Parte Young, 08-04-00251-CR, 2005 WL 3440819 (Tex.App.-El Paso Dec. 15, 2005), concerns the reindictment, trial court cause no. 20040D01654.

      . Article 32.01 was amended effective May 26, 1997 to state that the indictment had to be procured by the next term of court after the arrest or the 180th day thereafter, whichever was later — said amendment to be applied only to defendants arrested on or after the effective date of the act. See Tex.Code Crim. Proc. Ann. art. 32.01 (Vernon Supp.2005). Accordingly, the former law applies in Appellant's case.

      .Article 28.061 was amended on May 26, 1997 to remove any reference to serving as a bar to further prosecution to an offense discharged under article 32.01. This change applies only to prosecutions of an accused arrested on or after the effective date of the act. Accordingly, the above-quoted prior version of article 28.061 applies in Appellant's situation. See Tex.Code Crim. Proc. Ann. art. 28.061 (Vernon Supp.2005).


text:
    Graciela WONG, Appellant, v. TENET HOSPITALS LIMITED, A Texas Limited Partnership d/b/a Providence Memorial Hospital, Appellee.
    No. 08-04-00337-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 15, 2005.

      John P. Mobbs, El Paso, for Appellant.
    Jim Curtis, Kemp Smith LLP, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and ABLES, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a no-evidence summary judgment granted in favor of Appellee, Tenet Hospitals Limited (“Tenet Hospitals”) in an underlying premises liability lawsuit filed by Appellant, Graciela Wong. We affirm the judgment of the trial court.

I. PROCEDURAL BACKGROUND

The summary judgment evidence established that on or about December 26, 2001, Appellant went to visit her mother, a patient at Providence Memorial Hospital. Instead of parking in the Providence parking lot, Appellant parked along the curb on Hague Street next to the hospital. She exited the vehicle and walked across the landscaped area to reach the sidewalk. Appellant alleges she tripped over a bush sticking about one to two feet out of the ground and sustained injuries to her back and hands. There is no direct evidence on the record indicating whether she tripped on a bush or on the rocks, but rather Appellant indicated that what else could she think other than she tripped on the bush since she did not see it.

On May 30, 2003, Appellant filed her lawsuit, filing an amended original petition on July 2, 2003. Appellant alleged that the injuries and damages she suffered were the proximate cause of Tenet Hospitals’ negligence and the negligence of its agents and employees. Specifically, Appellant alleged that Tenet Hospitals created an unsafe condition, failed to warn her of the dangers, failed to adequately protect pedestrians from the dangerous condition, allowed the unsafe condition to remain without repair, cut the bush to a stump, and failed to remove the stump. Tenet Hospitals answered and subsequently filed a no-evidence motion for summary judgment on July 22, 2004. First, Tenet Hospitals alleged that Appellant’s status at the time and location of the injury was a trespasser and she was required to and failed to introduce any evidence showing that Tenet Hospitals willingly, wantonly, or by gross neglect caused her injury. Alternatively, Tenet Hospitals argued that if it is determined that Appellant was a licensee, the evidence establishes that the alleged hazard which caused Appellant’s injuries was easily perceptible, relieving Tenet Hospitals of any duty to warn of the alleged hazard. In support of its motion, Tenet Hospitals attached the oral deposition of Appellant, Graciela Wong, Troy Glover, administrative director of facility services, and groundskeepers for Tenet Hospitals, Florencio Ceballos and Antonio Granados.

On August 25, 2004, without specifying the grounds upon which it relied, the trial court signed an order granting Tenet Hospitals’ motion for summary judgment on all of Appellant’s claims. Appellant filed a motion for new trial on September 23, 2004, arguing that the summary judgment was improperly granted because a fact issue was raised as to the status of Appellant; a fact issue exists as to whether the dangerous condition was perceptible to Appellant; a fact issue exists as to whether Tenet Hospitals had actual knowledge of a condition on its premises that presented an unreasonable risk of harm to Appellant; a remnant of the shrub did not constitute an unreasonably dangerous condition; and a fact issue exists as to whether Tenet Hospitals breached its duty not to injure Appellant through gross negligence. Appellant’s motion for new trial was overruled by operation of law. This appeal follows.

II. DISCUSSION

On appeal, Appellant raises three issues in which she alleges that summary judgment was improperly granted because a fact issue existed as to (1) her status at the time of the incident; (2) whether the distressed bush constitutes an unreasonable risk of harm; (3) whether Tenet Hospitals breached its duty to not injure her through gross negligence.

A. Standard of Review

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.-El Paso 2000, no pet.). The motion must specifically state the elements for which there is no evidence. Tex.R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The burden then shifts to the nonmovant to produce evidence raising a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i). We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). If the evidence supporting a finding rises to the level that would enable reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of evidence exists. Miller v. Elliott, 94 S.W.3d 38, 42 (Tex.App,-Tyler 2002, pet. denied). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of fact, and the legal effect is that there is no evidence. Id. at 42-43. Where the trial court has granted summary judgment without stating the grounds for doing so, as here, we must consider all grounds for judgment presented in the motion and affirm if any has merit. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005).

B. Appellant’s Status

In Issue No. One, Appellant argues that a material fact exists as to whether she was a trespasser, licensee, or invitee at the time the accident occurred. Appellant argues that she was an invitee because she would tend to her mother’s needs lessening the burden on the doctors, nurses, and other hospital personnel of making her mother comfortable and content. In so doing, Appellant asserts she was conferring a benefit to Tenet Hospitals. Additionally, she would patronize the snack bar, the vending machines, and the gift shop on the premises. She argues that such evidence established that she was on the premises with Tenet Hospitals’ permission and for the mutual benefit of both parties, thus making her status of an invitee. Moreover, Appellant contends that the summary judgment evidence was lacking any proof that Tenet Hospitals was not aware or did not reasonably anticipate that hospital visitors would take the shortcut through the landscaped area to reach the sidewalk.

Tenet Hospitals contends that Appellant was not an invitee, but rather that her status was that of a trespasser because she lacked any lawful right to “wander through the bushes of the Hospital’s landscaped area” where the accident occurred. Tenet Hospitals discounts the possibility of Appellant being a licensee by stating that Appellant presented no evidence that she had Tenet Hospitals’ express or implied permission to wander through the landscaped area and further, that she chose to ignore the sidewalk and walk through the landscaped area as a shortcut. Tenet Hospitals also negates Ms. Wong’s status as an invitee by pointing out that there was no evidence of any mutual benefit to either party. Even assuming that using the snack bar, vending machines, and gift shop conferred benefit to the Hospital, Tenet Hospitals points to the fact that at the time of the injury, Appellant was out in the landscaped area and argues that a person can be an invitee in one part of the premise and a trespasser in another.

To prevail on its motion for summary judgment, Tenet Hospitals must con-elusively negate one of the essential elements of each of Appellant’s claims for negligence. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). The common-law duty of negligence consists of three essential elements: (1) a legal duty owed by one person to another, (2) a breach of that duty; and (3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.-El Paso 1997, writ denied). The duty owed by a premise owner or occupier is determined by the status of the plaintiff at the time and place of the injury. See Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex.1975); see also Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 751 (Tex.App.-Corpus Christi 1993, writ denied). Here, the parties dispute the status of Appellant at the time the incident occurred. We therefore begin with determining Appellant’s status at the time and place of the incident.

An invitee is a person who enters the premise of another at the express or implied invitation from the owner or occupier for their mutual benefit. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex.App.-Waco 1995, no writ). The owner or occupier owes an invitee the duty to keep the property safe and must use reasonable care to protect the invitee from reasonably foreseeable injuries. Rosas, 518 S.W.2d at 537. An invitee is under a duty to exercise reasonable care for his own self-protection against dangers of which he knows or ought to know. M.D. Anderson Hosp. & Tumor Inst. v. Felter, 837 S.W.2d 245, 248-49 (Tex.App.-Houston [1st Dist] 1992, no writ) (citing Camp v. J.H. Kirkpatrick Co., 250 S.W.2d 413, 417 (Tex.Civ.App.-San Antonio 1952, no writ)).

A licensee is a person privileged to enter and remain on the premises of another by express or implied permission of the owner, and not by any express or implied invitation. Peerenboom, 910 S.W.2d at 163; Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306 (1936). A lower standard of care is due to a licensee. The duty a property owner owes a licensee is the duty not to injure the licensee through willful, wanton, or grossly negligent conduct or to make safe a dangerous condition of which the owner is aware. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). A landowner or occupier is liable to a licensee only if the owner or occupier has actual knowledge of the condition that injured the plaintiff. City of El Paso v. Zarate, 917 S.W.2d 326, 331 (Tex.App.-El Paso 1996, no writ).

“A trespasser is one who ‘enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner ... but merely for his own purposes, pleasure or convenience’ .... ” Id. at 330 (citing Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 304 (1936) (quoting 45 C.J. 740)). A landowner or premises occupier owes a trespasser only the duty not to injure him willfully, wantonly, or through gross negligence. Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26 (Tex.App.-Dallas 1988, writ denied).

A person can enter property as an invitee or licensee and become a trespasser as to another part of the property. Peerenboom, 910 S.W.2d at 161. The status of an invitee or licensee, who has permission to be on part of the premises, decreases to that of a trespasser when she makes an unforeseen departure to another part of the premises uninvited. Id. However, an invitee or licensee does not become a trespasser if the owner can reasonably foresee that the invitee or licensee will use part of the premises without permission or for a purpose other than the one permitted. Id.

Reviewing the summary judgment evidence in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences, the record indicates that Appellant was at the hospital to visit her mother, a visit clearly for her sole purpose and benefit. There is no evidence that Appellant was at the hospital for the purpose of conducting business with Tenet Hospitals. Furthermore, at the time the alleged incident happened, Appellant was walking through the landscaped area located between Hague Street and the sidewalk on the side of the hospital. Appellant, therefore, did not enjoy the status of an invitee..

An invitee or licensee does not become a trespasser if the owner can reasonably foresee that the invitee or licensee will use part of the premises without permission, or for a purpose other than the one permitted. See Peerenboom, 910 S.W.2d at 161 (citing see Fisher Constr. Co. v. Riggs, 320 S.W.2d 200, 205-06 (Tex.Civ.App.-Houston 1959) (general contractor should reasonably anticipate that employees of its subcontractors might take a shortcut through store space), rev’d on other grounds, 160 Tex. 23, 325 S.W.2d 126 (1959)). The summary judgment evidence further shows that Tenet Hospitals knew people would park on the street and use the landscaped area to get to the sidewalk. As Appellant points to, Mr. Ceballos’s testimony indicated that he was aware of people that would cross through the landscaped area to reach the sidewalk. Therefore, we find that a fact issue did not exist as to the status of Appellant at the time of the injury. The evidence indicates that Appellant was at best under these specific circumstances, a licensee. We therefore overrule Issue No. One.

C. Unreasonable Risk of Harm

In Issue No. Two, Appellant asserts that there is more than a scintilla of evidence that Tenet Hospitals had actual knowledge of a condition on its premises that presented an unreasonable risk of harm. Tenet Hospitals asserts that this condition was not an unreasonably dangerous condition and further, that it was easily perceptible to Appellant. Tenet Hospitals contends that as a matter of law, the one-foot high distressed bush located in a row of other bushes in the landscaped area does not pose an unreasonable risk of harm. The issue is whether the distressed shrub in the landscaped area posed an unreasonable risk of harm.

In support of its argument, Tenet Hospitals cites to M.O. Dental Lab v. Rape, 139 S.W.3d 671 (Tex.2004) to make an analogy of the facts in this case to those of M.O. Dental Lab. In M.O. Dental Lab, the Court held that mud on the concrete slab outside of a dental office was not a condition that posed an unreasonable risk of harm to pedestrians. M.O. Dental Lab, 139 S.W.3d at 676 (stating “The ordinary mud found on the concrete slab outside of the M.O. Dental Lab accumulated due to rain and remained in its natural state; thus, as a matter of law, it was not a condition that posed an unreasonable risk of harm to Rape necessary to sustain her premises liability action.”). We disagree with Tenet Hospitals’ contention. In the case before us, the distressed shrub was not in its natural state as was asserted about the condition of the mud in M.O. Dental Lab. See id. In M.O. Dental Lab, the mud was naturally accumulating, whereas in this case, Tenet Hospitals specifically planted the shrubs as part of their landscaping scheme. There was no evidence regarding the reason the bush was in a distressed state. In that regard, we do not agree with Tenet Hospitals’ assertion that the demise of the plant was nothing more than a natural condition. The analogy Tenet Hospitals attempts to make that the shrub in this case is the same as the mud on the “man-made concrete slab” fails. Furthermore, Mr. Ceballos testified that he cut the shrub and was attempting to revive it. Even if Tenet Hospitals’ assertions regarding the bush being a natural condition were correct, we are mindful of our opinion in Furr’s, Inc. v. Logan, 893 S.W.2d 187, 189 (Tex.App.-El Paso 1995, no writ), where we held that Brownsville Navigation District v. Izaguirre, 829 S.W.2d 159 (Tex.1992) does not purport to hold that a natural condition can never be the basis of a premises liability claim.

A condition presenting an unreasonable risk of harm is one in which there is such a probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen. Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 341 (Tex.App.-Austin 2000, pet. denied) (quoting Seideneck v. Cal Bayreuther & Assocs., 451 S.W.2d 752, 754 (Tex.1970)). Foreseeability in this context “does not require that the exact sequence of events that produced an injury be foreseeable.” County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). Instead, only the general damage must be foreseeable. Id.

The determination of whether a particular condition poses an unreasonable risk of harm is generally fact specific. In general, reasonableness determinations are highly fact intensive and involve issues well suited for a jury. See Reliable Consultants, Inc., 25 S.W.3d at 342. There is no definitive, objective test that may be applied to determine whether a specific condition presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.

Under the facts of this case, the shrub was approximately one to two feet tall and located in a row of other larger green bushes. Appellant testified that she assumed she was looking down when she first stepped from the street onto the curb, but that she did not see the shrubs between the curb and the sidewalk. However, Appellant did see the row of green bushes equally spaced apart, which comprised part of the landscaped scheme. The summary judgment evidence contains nothing more with respect to the issue of the shrub being an unreasonably dangerous condition. This evidence does nothing more than present a mere speculation and does not rise to the level of more than a scintilla of evidence. We find that the shrub was not an unreasonably dangerous condition for which Tenet Hospitals may be held liable as a matter of law. See Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex.1996).

D. Condition Easily Perceptible to Appellant

Furthermore, Tenet Hospitals asserts that the bush was easily perceptible to Appellant and therefore, it did not have a duty to Appellant. It is well-settled law that the duty owed to a proprietor or licensor to a licensee is not to injure him by will, wanton, or through gross negligence. State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). An exception to this general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor either to warn the licensee of the dangerous condition or to make the condition reasonably safe. Id. If the licensee has the same knowledge about the dangerous condition as the licensor, then no duty to the licensee exists. Wal- Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). Further, a licensor owes no duty to warn a licensee or make the condition reasonably safe if the evidence conclusively established that the licensee perceived the alleged dangerous condition. See id.

To support its assertions, Tenet Hospitals relies on Weaver v. KFC Mgmt. Inc., 750 S.W.2d 24, 26 (Tex.App.-Dallas 1988, writ denied). In Weaver, the plaintiff was cutting across the restaurant’s parking lot on his way to the drugstore when he fell on some chicken grease that covered an area approximately ten feet wide. Id. Mr. Weaver testified that the grease would have been seen by the restaurant employees, that it was a yellow/white color on the black asphalt, and that it would have been visible to anybody. Id. at 27. However, prior to falling, he had not seen it, although he was looking at the ground when he was walking. Id. The Court in Weaver held that this evidence established that the hazard was easily perceptible, relieving the restaurant’s duty to warn. Id.

We find that the facts in this ease are similar to those in Weaver. Viewing the evidence in the light most favorable to the nonmovant, the summary judgment shows that this was the first time Appellant parked along Hague Street at this specific location. The shrub was one to two feet tall, located in a row of green bushes. Appellant testified that she did not see the distressed shrub, but rather that the color of the distressed shrub blended in with the color of the rocks used to landscape that area. Yet, she testified that she could not remember the color of the shrub because of the injuries she received from the fall. Her testimony alone was the only evidence indicating that the shrub was not perceptible. However, such evidence is so weak as to do nothing more than create a mere surmise or suspicion of fact and the legal effect is that there is no evidence. See Miller, 94 S.W.3d at 42-43. We conclude that Appellant failed to present a scintilla of evidence regarding the perceptibility of the distressed bush and in so doing, she failed to meet her burden to defeat Tenet Hospitals’ no-evidence motion for summary judgment. Issue No. Two is therefore overruled. Because Issue No. One and No. Two are dispositive of this appeal, we do not reach Issue No. Three.

Having overruled Issue Nos. One and Two, and finding that we need not address Issue No. Three, we affirm the judgment of the trial court.

ABLES, J., sitting by assignment.


text:
    Adriana NEVAREZ, Appellant, v. Sergio ELGUEA, Appellee.
    No. 08-05-00262-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 15, 2005.
    Paul F. Grajeda, Law Office of Paul F. Grajeda, El Paso, for appellant.
    Hector Phillips, El Paso, for appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This appeal is before the Court on its own motion to determine whether it should be dismissed pursuant to Tex.R.App. P. 38.8(a)(1), which states:

(a) Civil Cases. If an appellant fails to timely file a brief, the appellate court may:
(1) dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appel-lee is not significantly injured by the appellant’s failure to timely file a brief.

By a letter dated November 4, 2005, this Court’s clerk informed Appellant that no appellant’s brief or motion for extension of time had been filed and of the Court’s intent to dismiss the appeal for want of prosecution pursuant to Tex.R.App. P. 38.8, absent a response from any party within ten days to show grounds for continuing the appeal. No response has been received as of this date.

We have given notice of our intent to dismiss the appeal, requested a response if a reasonable basis for failure to file an appellant’s brief exists, and have received none. We see no purpose that would be served by declining to dismiss this appeal at this stage of the proceedings. Pursuant to Tex.R.App. P. 38.8(a)(1), we dismiss the appeal.