text:
    Horace CHESTER, Appellant, v. The STATE of Texas, Appellee.
    No. 07-02-0022-CR.
    Court of Appeals of Texas, Amarillo.
    July 13, 2005.
    Todd LeBlanc, Beaumont, for Appellant.

      Wayln G. Thompson, Philip Babin, Asst. Criminal District Attys., Beaumont, for Appellee.
    Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Horace Chester appeals his conviction for possessing .07 grams of cocaine. His two issues involve the propriety of the State’s jury argument. That is, he contends that the trial court erred by overruling his objection to the State’s application of the parole laws to potential sentences the jury could levy against him. We reverse the judgment of the trial court.

In its closing argument during the punishment phase of the trial, the following occurred before the jury:

Prosecutor: ... 15 years he got in 1993 for delivering drugs, okay. I don’t know how much of that time he actually served, okay. We do know — All we do know for sure is a 15 year sentence in 1993, but in July of last year — July 31st, he commits this offense that you all are here for, okay.
... And under the law applicable in this case, if the Defendant is sentenced to a term of imprisonment, he many [sic] not become eligible for parole until the actual time served, plus any good conduct time earned equals one-fourth of the sentence, okay.
So, if there is a verdict for 20 years- and yes, you can’t guess on what the Board of Prisons and Parole is going to do, okay, and it also says that in there, but they can tell you this. This is one thing you know for sure. So, what does that mean? You know that if there is a 20 year sentence—
Defense: Your Honor, I’m going to- object. It’s an improper jury argument. Court: Overruled.
Prosecutor: If there is a 20 year sentence, Mr. Chester will not become eligible for parole until his actual time served, plus whatever credit they give him for good time served, equals 5 years, okay. That’s what you know for sure.
I hope that that’s pretty clear and if it’s not, you’ve got your Charge with you and you can look at that....

Furthermore, the State’s comment about how the parole laws may affect the amount of time appellant may serve was one of the last made during argument. And, once argument concluded and while deliberating punishment, the jury sent the trial court a note asking: “[h]ow many years were served of the 15 years previously.” Thereafter, it rendered a verdict sentencing appellant to 20 years imprisonment and assessing a finé of $10,000; both constituted the maximum term of imprisonment and fine which it could levy.

The comments made about how the parole laws would affect appellant’s sentence if a 20-year term was levied violated the Texas Code of Criminal Procedure, according to appellant. Laudably, the State conceded the accuracy of appellant’s argument. See Tex.Code CRiM. Peoo. Ann. art. 37.07 § 4 (Vernon Supp.2004-05) (providing that the jury should be instructed that they are not to consider the extent to which good conduct time may be awarded to or forfeited by a particular defendant or the manner in which the parole laws may be applied to a particular defendant); see also Hawkins v. State, 99 S.W.3d 890, 900-901 (Tex.App.-Corpus Christi 2003), rev’d on other grounds, 135 S.W.3d 72 (Tex.Crim.App.2004) (stating that “[o]ur law could not be more clear that a prosecutor must avoid applying the parole law specifically to the defendant on trial” ’); Facundo v. State, 971 S.W.2d 133, 135-36 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (holding it error for the State to apply the parole laws to that particular defendant). However, it questions whether the error was harmful. That topic we now address.

Error pertaining to jury argument is non-constitutional in nature; thus, it must be disregarded unless it affected substantial rights of the appellant. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2002). Next, one’s substantial rights are affected when the error has a substantial injurious influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). And, to determine whether this happened, we examine 1) the severity of the misconduct, 2) the measures adopted to cure the misconduct, and 3) the certainty of the punishment assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). And, if upon considering those indi-cia we are unsure as to whether the error affected the outcome, we should treat it as harmful. Booker v. State, 103 S.W.3d 521, 538 (Tex.App.-Fort Worth 2003, pet. ref'd).

Regarding the severity of the error, we note that the improper comments were one of the last things said to the jury before it retired to deliberate punishment. Though we cannot be certain if its members recalled the comments once they began their debate, the circumstances do not give us reason to conclude that it was forgotten. Moi'eover, the error served to inform the jury that irrespective of whatever sentence it imposed, the appellant may well serve far less time in prison. This could easily be interpreted as inducement to assess a longer term of imprisonment based on factors other than those permitted by the legislature; indeed, the latter expressly prohibited the consideration of parole in setting punishment. Given this, we conclude that the error may be deemed severe.

As to the second prong mentioned in Hawkins, ie. the measures adopted to cure the conduct, we note that the trial court overruled appellant’s objection. So, when the error occurred, there were no measures taken to lessen the impact of the mistake. More importantly, and as acknowledged by the Court of Criminal Appeals, the decision to overrule the objection may well have been seen by the jurors as judicial approval of the mistake. Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986). And, while the trial court admonished the jury, via its written charge, against considering how the laws concerning good time and parole related to appellant, we cannot say with any assurance that the jury heeded the admonition. Again, after hearing the trial court conceivably approve the State’s argument by overruling appellant’s objection, the jury specifically asked the court about the length of time appellant actually served when previously sentenced to prison. The latter question certainly suggests that the jurors were considering the possibility of early release due to parole and good time despite the instruction. This same question, when coupled with the timing of the error, also renders uncertain the likelihood that the same sentence would have been levied if the argument had not been made. Admittedly, appellant had prior convictions and the offense at issue involved the presence of juveniles. Those indicia alone may well have justified a maximum sentence. Yet, the jury asked about the amount of time appellant served with regard to a prior sentence. As mentioned above, that is evidence of it considering how parole and good time may affect whatever punishment it may levy upon appellant. So, in short, we have grave reservations about whether the trial court cured the prejudice emanating from the mistake and the likelihood that the same sentence would have been assessed irrespective of the argument.

Finally, as to the State’s contention that the instruction contained in the jury charge relating to parole and good time caused the harm in and of itself, we find it of no succor. Informing the jurors about parole and good time and then directing them to forego applying those factors to the sentence they are determining is akin to placing chocolate in one’s mouth and then being told not to chew it. Yes, one can spit it out, but the taste still lingers. So, one can wonder if the charge itself caused harm. Yet, the legislature has spoken on the matter and informed all that jurors are not to consider parole and good time in the way the jury probably did here. We cannot nullify that edict when the circumstances evince that those topics were indeed factored into the sentence.

In sum, the trial court erred in overruling appellant’s objection to the jury argument. Furthermore, the record does not permit us to conclude that appellant’s substantial rights went uninfluenced by the error. Consequently, we deem the error harmful, reverse that portion of the judgment levying sentence upon appellant, and remand the cause for a new punishment hearing.

      . Appellant’s first appointed counsel filed an Anders brief. In his pro se response, one of the issues raised by appellant concerned the propriety of the State's argument. Having concluded that there was an arguable ground for appeal on that question, we abated the cause for the appointment of new counsel. The trial court appointed new counsel, and the latter filed the brief upon which we act.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of M.A.D., a Juvenile.
    No. 10-05-00086-CV.
    Court of Appeals of Texas, Waco.
    July 27, 2005.

      M. Bryon Barnhill, Harker Heights, for appellant.
    David A. Castillo, Coryell County Dist. Atty., Gatesville, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

Counsel for Appellant M.A.D. filed an Anders brief on June 10, 2005. The Clerk of this Court notified M.A.D.’s counsel by letter dated June 13 that the appellant’s brief was deficient and that counsel had failed to provide adequate documentation demonstrating compliance with An-ders as that case has been construed by the Supreme Court of Texas for juvenile appeals and by this Court. The Clerk directed counsel to file an amended brief and appropriate documentation within fifteen days. To date, counsel has failed to respond. Therefore, we abate this cause to the trial court with instructions to hold a hearing to determine: (1) whether M.A.D. is receiving effective assistance of counsel; (2) whether counsel has abandoned the appeal; and (3) whether M.A.D. still desires to proceed with the appeal. See In re K.J.O., 27 S.W.3d 340, 342 (Tex.App.-Dallas 2000, pet. denied) (a juvenile is entitled to effective assistance of counsel); R.X.F. v. State, 921 S.W.2d 888, 902 (Tex.App.-Waco 1996, no writ) (same); see also Tex.R.App. P. 38.8(b)(2).

According to section 56.01(b) of the Texas Family Code, “[t]he requirements governing [a juvenile] appeal are as in civil cases generally.” Tex. Fam.Code Ann. § 56.01(b) (Vernon 2002). Rule of Appellate Procedure 38.8(a)(1) provides that an appellate court may dismiss a civil appeal for want of prosecution if the appellant’s brief is untimely and the appellant fails to provide a reasonable explanation. However, we decline to follow Rule 38.8(a)(1) because of the liberty interest at stake in a juvenile delinquency appeal. See Tex. R.App. P. 38.8(a)(2) (when appellant’s brief is late, appellate court may “decline to dismiss the appeal and give further direction to the case as it considers proper”); see also In re T.V., 8 S.W.3d 448, 449-50 (Tex.App.-Waco 1999, order) (per curiam) (abating rather than dismissing appeal involving termination of parental rights when appellant’s brief was overdue).

If M.A.D. no longer wishes to pursue an appeal, a written dismissal motion must be filed. See Tex.R.App. P. 42.1(a)(1); see also Tex. Fam.Code Ann. § 56.01(b).

If the court determines that counsel is unwilling or unable to file a proper brief and the appropriate documentation, the court should appoint other counsel to represent M.A.D.

The trial court shall, within thirty days after the date of this Order: (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court shall inform M.A.D.’s counsel that a proper brief and any appropriate documentation are due within thirty days after the date of the hearing.

The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order.

The court reporter shall prepare and file a supplemental reporter’s record containing a transcription of the hearing within forty-five days after the date of this Order.

Chief Justice GRAY concurring in part with a note.

      . Anders v. Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The Supreme Court has held that an Anders brief and accompanying documentation should be "furnished to the juvenile client and the juvenile’s parent or guardian. The juvenile would then have the ability to advance his or her appeal through a parent, legal guardian, next friend, or guardian ad litem." In re D.A.S., 973 S.W.2d 296, 299 (Tex.1998) (orig.proceeding). This Court has held that in Anders cases counsel must accompany the Anders brief with documentation indicating that counsel "has provided a copy of the Anders brief to the appellant and fully informed the appellant of the right to review the appellate record and to file a brief or other response.” Sowels v. State, 45 S.W.3d 690, 693 (Tex.App.-Waco 2001, no pet.). This Court has also held that an Anders brief must contain a “professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.” Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet. ref'd) (quoting High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. [Panel Op.] 1978)).

       ("Chief Justice Gray concurs in part. On June 13, 2005 we notified counsel of the deficiencies in the brief filed. Counsel was advised that if the deficiencies were not corrected within 15 days the brief would be struck and the cause abated to the trial court to determine if M.A.D. was receiving the effective assistance of counsel. To the extent this order does that, I join it, but I do not join anything else herein.").


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    In re GMAC COMMERCIAL FINANCE, L.L.C.
    No. 10-05-00186-CV.
    Court of Appeals of Texas, Waco.
    July 27, 2005.

      Robert Gilbreath, Jenkens & Gilchrist, Dallas, for appellant.
    Clay Lewis Jenkins, Jenkins & Jenkins PC, Clay Hinds, Waxahachie, Paul Scott Summy, Baron & Budd PC, Dallas, Eugene J. Heady, Smith, Currie <⅞ Hancock LLP, Atlanta, GA, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

BILL VANCE, Justice.

In this original proceeding, we denied the petition for writ of mandamus of Relator GMAC Commercial Finance, L.L.C. in a Memorandum Opinion on April 27, 2005. Thereafter, on May 16, 2005, Humboldt Wedag, Inc. (HWI), a real-party-in-interest, filed a “Verified Motion to Expunge Record and for Return of Documents.” In this motion, HWI requests us to expunge from our record in this proceeding a privileged document that it inadvertently included in its “Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus.” It further requests us to order all parties in this proceeding to return all copies of this document to HWI. HWI unsuccessfully sought voluntary return of the document from the parties in this proceeding.

The fourteen-page document at issue is a November 10, 2003 letter from James K. Bidgood, Jr., HWI’s attorney in Atlanta, Georgia, to Clay Lewis Jenkins, HWI’s attorney in Waxahachie. In its verified motion, HWI explains how the letter was inadvertently included as Exhibit 3 in its Optional Appendix. On its face, the letter plainly contains core work product (as defined by Tex.R. Crv. P. 192.5(b)(1)) and further constitutes a communication protected by the lawyer-client privilege (Tex.R. Evid. 503(b)(1)(E)). The other parties to this proceeding — Relator GMAC and real-parties-in-interest Holcim (Texas) Limited Partnership and HC GP Inc.— filed responses opposing HWI’s verified motion. We believe that HWI is entitled to relief.

We find no authority allowing us to expunge the letter from our record. But we do have authority to seal a privileged document inadvertently made a part of an appellate court record. See Monsanto Co. v. Davis, 110 S.W.3d 28, 29-30 (Tex.App.-Waco 2002, order). Accordingly, we order the Clerk of this Court to seal the original and all copies of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in the Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, on file in this cause (10-05-00186-CV). These documents shall remain under permanent seal until the entire case file is destroyed pursuant to the Records Retention Schedule approved for this court (normally six years from the date of judgment), unless otherwise ordered by this court.

Rule 193.3(d) of the Texas Rules of Civil Procedure, while applicable to the inadvertent production of privileged material in discovery, provides guidance and authority on the return of the document from the parties to this proceeding and any persons who obtained or received a copy of the document from any party to this proceeding. Accordingly, we order all parties to this proceeding to return to Clay Lewis Jenkins, HWI’s Waxahachie counsel, all copies and images of the November 10, 2003 letter from James K. Bidgood, Jr. to Clay Lewis Jenkins, attached as Exhibit 3 in Optional Appendix to Brief of Humboldt Wedag, Inc. in Opposition to Petition for Writ of Mandamus, including all copies and printed images of this letter that any party to this proceeding provided to any other person. All copies and printed images of this letter shall be returned to Mr. Jenkins by certified mail within ten days of the date of this order. All electronically stored images of the letter shall be permanently deleted or destroyed. All parties to this proceeding shall, within ten days of the date of this order, certify to this court by correspondence that they have complied with the orders in this paragraph.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

This is a classic situation in which an appellate court is not equipped to decide the issue presented. In this post-decision motion, we are asked to determine whether a document, alleged at one time to have been protected by a privilege, has lost that privilege. The'parties have engaged in no discovery about the circumstances under which the document was attached to a brief/appendix filed in this Court.

If we have jurisdiction to decide this motion, the Court should abate this matter to the trial court for the development of a record upon which the issue could be properly decided. It is not that I disagree with the Court’s conclusion, I simply do not have the information available to me which is necessary to decide the issue.

There is a substantial question of whether the inclusion of the document in the appendix constitutes a waiver of the privilege. Because this document was not produced in discovery, the discovery rules regarding inadvertent production are not applicable. Prior to the adoption of the discovery rules related to inadvertent production, a fair amount of case law had developed on what must be shown to support a retrieval of a document the parties did not intend to disclose to opposing counsel. It is that body of case law against which we should review these facts to determine if the privilege genie can be reinserted in the magic lamp. It appears it can be, but I just do not have the information, facts, and briefing necessary to make that determination.

The only case cited by the majority relies upon our authority to enter temporary orders. See Monsanto v. Davis, 110 S.W.3d 28, 29 (Tex.App.-Waco 2002, order). This authority does not support our sealing of the document and for it to remain sealed until it is destroyed. Nor do we, on the record before us, have any authority to order the return or destruction of copies provided to opposing counsel.

In conclusion, the trial court should develop the factual record and make the initial determination regarding whether the privilege once held, if any, has been lost. I do not join this order. I cannot concur in what the Court has done, so I have no alternative but to dissent.

      . '‘Inadvertent production is distinguishable from involuntary production. A party who permits access to unscreened documents may, due to inattention, unwittingly — but nonetheless voluntarily — disclose a privileged document. Disclosure is involuntary only if efforts reasonably calculated to prevent the disclosure were unavailing. Thus, although disclosure does not necessarily waive privileges, a party claiming involuntary disclosure has the burden of showing, with specificity, that the circumstances confirm the involuntariness of the disclosure. In addition to precautionary measures, other factors to be examined in determining involuntariness include the delay in rectifying the error, the extent of any inadvertent disclosure, and the scope of discovery. This standard is consistent with the approach adopted by numerous federal courts which now determine waiver by evaluating the circumstances of the disclosure. See Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 587-88 (N.D.N.Y.1989); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 329 (N.D.Cal.1985); see

        also KL Group v. Case, Kay & Lynch, 829 F.2d 909, 919 (9th Cir.1987); Clady v. County of Los Angeles, 770 F.2d 1421, 1433 (9th Cir.1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986). Many state courts also take this approach. See generally McGlynn v. Grinberg, 172 A.D.2d 960, 568 N.Y.S.2d 481 (Sup.Ct.App.Div.1991); Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D.1990); Kanter v. Superior Court, 206 Cal.App.3d 803, 253 Cal.Rptr. 810 (2d Dist.1988); Sterling v. Keidan, 162 Mich.App. 88, 412 N.W.2d 255 (Mich.App.1987).”

        Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 226 (Tex.1992).


author: GUZMAN, Justice.

text:
    Jimmie W. HUFFHINES and Judith Ann Huffhines, Appellants, v. STATE FARM LLOYDS and State Farm Fire and Casualty Co., Appellees.
    No. 14-04-00681-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 2, 2005.

      Michael S. Hays, Susan C. Stevenson, Houston, for appellants.
    Jack McKinley, Houston, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

GUZMAN, Justice.

In this appeal, we must resolve duty-to-defend issues regarding a Homeowners’ Policy and a Personal Liability Umbrella Policy. Specifically, we are asked to determine whether appellees, State Farm Lloyds and State Farm Fire and Casualty Company (“State Farm”), had a duty to defend appellants, Jimmie W. Huffhines and Judith Ann Huffhines, against an original third-party petition filed in an underlying lawsuit when, in that original petition, the plaintiffs alleged appellants knowingly failed to disclose defects in a townhouse they sold to the plaintiffs. Because we conclude State Farm had no duty to defend appellants against this original third party petition, we affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants sold their townhouse to George and Sharon Heaton in March 1998. Up to the time of sale, State Farm insured the townhouse under a Homeowners Policy. State Farm also insured appellants’ subsequent residence and insured appellants under an Umbrella Policy.

The owner of the townhouse adjoining the Heatons’, Mary L. Piper, initiated the underlying lawsuit against the Heatons alleging that various defects in the Heatons’ property caused water to encroach on and damage her residence. As pail of her factual allegations, Piper asserted the Hea-tons “failed to properly repair and maintain the common wall, patio, drainage system, and adjoining land in general in such a fashion so as to prevent water from intruding into [Piper’s] townhome.” In a claim of negligence, Piper alleged the Hea-tons breached their duty to Piper to maintain and repair their property in a reasonably prudent manner in order to avoid water intruding onto Piper’s adjacent premises.

The Heatons then sued appellants. In their Original Third Party Petition, the Heatons alleged the following facts:

George Heaton purchased the Property from the Huffhines [sic] in March of 1998. In the course of this litigation, the Heatons received a copy of a letter and an engineering report sent to the Huffhines[sie] before they sold the Property to the Heatons, detailing various alleged defects of the Property and/or the common wall with Mrs. Piper related to water encroachment from the Property to Mrs. Piper’s residence. In connection with the purchase of the Property, the Huffhines [sic] made certain disclosures to the Heatons regarding the Property in a document entitled Seller’s Disclosure of Property Condition. In this Disclosure, the Huffhines [sic] assured the Heatons that, they were unaware of anything on the Property in need of repair, water penetration (other than a roof leak), improper drainage, or defects of the interior walls, exterior walls, roof, walls, fences, or plumbing. In summary, the Huffhines [sic] were on notice of the alleged problems made the basis of this suit, and failed to disclose same to the Heatons.

The Heatons’ petition alleged common law fraud, statutory fraud, violation of the Deceptive Trade Practices Act (DTPA), and negligence, and sought contribution, damages, and attorney’s fees. In the negligence paragraph, the Heatons pleaded, “In the alternative, Third-Party Defendants’ misconduct as described above, constituted negligence which was the proximate cause of the Heatons’ damages, for which they sue herein.”

Appellants, in turn, sued State Farm, seeking a declaratory judgment that State Farm owed them a duty to defend in the underlying suit and to pay any adverse judgment rendered against them. The Heatons subsequently amended their petition, modifying the factual allegation set forth above to read:

George Heaton purchased the Property from the Huffhines [sic] in March of 1998. Plaintiff is alleging that water began entering her home prior to the Heatons [sic] purchase of the Property in 1998. Moreover, in the course of this litigation, the Heatons received a copy of a letter and an engineering report sent to the Huffhines [sic] before they sold the Property to the Heatons, detailing various alleged defects of the Property and/or the common wall with Mrs. Piper related to water encroachment from the Property to Mrs. Piper’s residence. However, the Huffhines [sic] failed to adequately repair and remediate the various alleged defects. The Huffhines [sic] also failed to advise the Heatons of the alleged defects and complaints of Mrs. Piper.

In this amended petition, the Heatons set forth negligence as their first cause of action. The Heatons alleged appellants (1) failed to effectively repair the water problems and (2) negligently failed to disclose the alleged defects of the property. The Heatons again alleged common law fraud, statutory fraud, and DTPA violations, and sought contribution, damages, and attorney’s fees. State Farm agreed to defend against this amended petition.

After both sides moved for summary judgment, the trial court granted State Farm’s motion, denied appellants’ motion, and rendered judgment declaring State Farm had no duty to defend appellants against the allegations in the Heatons’ Original Third Party Petition or to indemnify appellants against a judgment based on those allegations.

II. DISCUSSION

In a single issue, appellants challenge the trial court’s declaratory judgment that State Farm had no duty to defend appellants against Defendants’ (Heatons’) Original Third Party Petition in the underlying lawsuit. Whether an insurance carrier owes a duty to defend under an insurance policy is a question of law, which we review de novo. State Farm Gen. Ins. Co. v. White, 955 S.W.2d 474, 475 (Tex.App.—Austin 1997, no pet.). Additionally’, de novo review is appropriately applied to the trial court’s declaratory judgment in this case because the trial court resolved the case on competing motions for summary judgment in the face of undisputed facts. See Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex.App.—Houston [14th Dist.] 2003, no pet.) (regarding standards applied to declaratory judgments); Taub v. Aguila Southwest Pipeline Corp., 93 S.W.3d 451, 462 (Tex.App.—Houston [14th Dist.] 2002, no pet.) (regarding de novo review in summary judgment context).

A.' Legal Principles Applicable to Determining the Duty to Defend

A liability insurer is obligated to defend a suit if the facts alleged in the pleadings would give rise to any claim within the coverage of the policy. Utica Nat'l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex.2004). If, however, a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (per curiam).

We determine State Farm’s duty to defend based on the allegations contained in the Heatons’ Original Third Party Petition and the language of appellants’ insurance policies. See id. Courts refer to this standard for determining coverage from the four corners of the pleading and the four corners of the insurance policy as the “eight corners” rule. Id. In applying the “eight corners” rule, we give the allegations in the Original Third Party Petition a liberal interpretation. See id. Thus, in construing the allegations of the underlying suit, we strictly construe the pleadings against the insurer, and resolve any doubt in favor of coverage. See Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965).

If the Heatons’ Original Third Party Petition does not state facts sufficient to bring the case clearly within or outside appellants’ coverage, State Farm is obligated to defend if potentially there is a case under the complaint within the coverage of appellant’s policy. See Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141. In making this determination, we must focus on the petition’s factual allegations showing the origin of the damages rather than on the legal theories alleged. Id. We will not read facts into the petition, nor will we look outside of the petition, or imagine factual scenarios which might trigger coverage. Id. at 142. In the context of this case, if State Farm has a duty to defend against any claim pleaded in the Original Third Party Petition, it is required to defend against all claims in that petition. See Stumph v. Dallas Fire Ins. Co., 34 S.W.3d 722, 728 (Tex.App.—Austin 2000, no pet.).

B. Analysis

1. The Petition and the Policy

In their Original Third Party Petition, the Heatons alleged that, at the time appellants sold their townhouse to the Heatons, appellants knew of various defects of their townhouse and its common wall with Piper’s property, including water encroachment. The Heatons also alleged appellants assured them they were unaware of (1) anything in need of repair, (2) water penetration other than a roof leak, (3) improper drainage, or (4) defects of the interior walls, exterior walls, roof, walls, fences, or plumbing. As summarized by the Heatons: Appellants “were on notice of the alleged problems made the basis of this suit, and failed to disclose same to the Heatons.”

Appellants’ Homeowner’s Policy states that State Farm will provide a defense “[i]f a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies.” An occurrence is defined as “an accident, including exposure to conditions, which results in bodily injury or property damage during the policy period.” i

Appellants’ Umbrella Policy provides State Farm will “defend the suit against” the insured “[wjhen the claim or suit is covered by this policy, but not covered by any other policy available to [the insured].” State Farm’s “obligation to defend a claim or suit ends when the amount [State Farm pays] for damages equals [its] limit of liability under Coverage L.” Under the Coverage L provision, “If [the insured is] legally obligated to pay damages for a loss, [State Farm] will pay [the insured’s] net loss minus the retained limit. [State Farm’s] payment will not exceed the amount shown on the Declarations as Policy Limits — Coverage L — Personal Liability.” Loss means “an accident that results in personal injury or property damage during the policy period. This includes injurious exposure to conditions.”

2. “Accident” under Cowan

In its summary judgment motion, State Farm argued both “occurrence” in the Homeowners Policy and “loss” in the Umbrella Policy required an “accident,” and argued the Heatons had not alleged an accident in their Original Third Party Petition. Neither policy defines “accident.”

In Trinity Universal Insurance Co. v. Cowan, the supreme court explained the meaning of the term “accident” as found in the standard homeowner’s insurance policy. 945 S.W.2d 819, 826-28 (Tex.1997). In Cowan, the insured, a photo lab clerk, made extra prints of revealing photographs of the plaintiff (Cowan) which she had submitted for developing. Id. at 820. He then showed the prints to his friends and left them with one friend with instructions to throw them away. The friend, however, showed them to someone else, who then told the plaintiff. See id. at 820-21. The supreme court decided the insured’s intentional tort that resulted in unintended injuries was not an “accident,” and thus not an “occurrence.” Id. at 820. Therefore there was no coverage under the policy. Id.

In reaching this conclusion, the court noted the rule that whether an event is accidental “is determined from the viewpoint of the insured.” Id. at 827. Nevertheless, more significant for the case before the court was the rule that “whether an event is accident is determined by its effect.” Id. The court then reiterated its earlier holding that “an effect that ‘cannot be reasonably anticipated from the use of [the means that produced it], an effect which the actor did not intend to produce and winch he cannot be charged with the design of producing, is produced by accidental means.’ ” Id. at 827 (quoting Republic Nat’l Life Ins. Co. v. Heyward, 536 S.W.2d, 549, 555 (Tex.1976), in turn citing Int’l Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282, 284-85 (1930)). Regarding the specific conduct of the photo lab clerk (Gage), the court explained:

[W]e conclude that Gage’s conduct was not an “accident.” He did exactly what he intended to do when he purposefully copied the photographs and showed them to his friends. That Gage did not expect or intend Cowan to learn of his actions is of no consequence to our determination of whether his actions were an “accident.” Nor did Gage negligently iniade Cowan’s privacy; he intentionally made the copies of her photographs and showed them to his friends. We conclude, therefore, that there was no coverage under the policy for damages caused as a result of Gage's invasion of Cowan’s privacy.
... Rather, Gage’s conduct was not an “accident” because the injury to Co-wan, the invasion of her privacy, is of a type that “ordinarily followfs]” from Gage’s conduct and the injuries could be “reasonably anticipated from the use of the means, or an effect” that Gage can “be charged with ... producing.” To hold otherwise would inappropriately enhance rather than minimize the moral hazard inherent in insurance.

Id. at 827-28, 23 S.W.2d 282 (citations omitted).

In the present case, the event or conduct alleged by the Heatons in their Original Third Party Petition is appellants’ assuring the Heatons they were not aware of defects of their townhouse when appellants had knowledge of such defects, including water encroachment.3 Water damage is of a type that “ordinarily follow[s]” from existing and undisclosed water encroachment; and the injuries to Piper, who occupied the adjoining townhouse, could be “reasonably anticipated from the use of the means, or an effect” appellants can “be charged with ... producing.” See id. at 828, 23 S.W.2d 282.

The allegations in Heatons’ Original Third Party Petition, did not set forth an “accident” as defined by Cowan. Absent an “accident” there can be no “occurrence” under appellants’ homeowners policy and no “loss” under their umbrella policy. Thus, the Heatons did not allege facts within the scope of appellants’ insurance policies, and State Farm was not required to defend appellants against Heatons’ Original Third Party Petition. See Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141.

3. Appellants’ “Negligence” Claim

However, in an attempt to avoid the implications of Cowan, appellants urge three arguments. First, they contend that because the Heatons are seeking contribution under Texas Civil Practices and Remedies Code chapters 32 and 33, Piper’s allegation of the Heatons’ negligence triggers coverage under the policies. Second, appellants argue the Heatons in fact alleged a negligence claim in them Original Third Party Petition. Third, appellants assert that the intentional nature of appellants’ alleged conduct (i.e., the knowing misrepresentation) does not determine the absence of an “accident.”

Heatons’ claim for contribution. Appellants perfunctorily reference chapters 32 and 33 and quote the definition of “responsible third parties,” in Texas Civil Practice and Remedies Code section 33.011(6). See Act of May 8, 1995, 74th Leg. R.S., ch 136, § 1, sec. 33.011(6), 1995 Tex. Gen Laws 971, 973 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (Vernon Supp.2004-05)).4 Appellants, however, do not explain how the Heatons’ request for contribution or indemnification warrants reference to Piper’s claims to determine whether State Farm is obligated to defend Heatons’ suit against appellants.

Appellants do argue their case is analogous to Gibson & Associates v. Home Insurance Co., 966 F.Supp. 468 (N.D.Tex.1997). Gibson, however, is inapposite.

Gibson concerned a coverage dispute involving a commercial general liability policy. See id. at 470. Gibson, the insured, had contracted with the City of Dallas to perform construction work along Main Street. Shop owners subsequently sued the City claiming, among other things, (1) the City had failed adequately to access the scope of necessary construction, in particular the total closing of Main Street for a period of time, and (2) the City’s restriction of access to the owners’ properties during the construction was "'illegal, unnecessary, negligently performed and/or unduly delayed.’ ” Id. at 471. The City, in turn, sued Gibson, alleging Gibson had agreed to indemnify the city from claims arising from a breach of any term of the contract and Gibson had breached its contractual duties because the construction contract required Gibson to insure continued access to businesses along Main Street during business hours. Id. Attached to the City’s pleading against Gibson was a copy of the shop owners’ underlying pleading. Id. After Gibson’s insurer declined to defend Gibson, Gibson sued its insurer, Home Insurance Company, alleging that, in refusing to provide Gibson with a defense, Home failed to deal fairly and in good faith. Id.

The district court first considered whether Home had a duty to defend Gibson against the City’s breach of contract claims. The court concluded (1) any damages sought by the City as a direct consequence of Gibson’s breach of its construction contract could not be characterized as “property damage,” and (2) a breach of contract did not represent an “occurrence” as defined by commercial general liability policies. Id. at 473-74. Therefore, the City’s breach of contract claims did not give rise to a duty to defend. Id. at 475. In the course of reaching its conclusion regarding property damage, the court specifically rejected Gibson’s invitation to consider the shop owners’ claims:

Significantly, in determining the nature of damages for which recovery is sought from Gibson, the Court must look not, as Gibson insists, to the claims brought by the Shop Owners against the City of Dallas, but rather to the facts asserted in the City’s own third-party actions against Gibson. In other words, it is the factual background alleged in the third-party complaints that provides the pertinent frame of reference with regard to the issue of coverage. It is true, as Gibson correctly points out, that the City’s complaints incorporate the Shop Owners’ pleading by reference. Yet, the mere fact of incorporation neither demonstrates that the City has thereby adopted the Shop Owners’ causes of action as part and parcel of its own claims against Gibson, nor does it indicate that the City is seeking recovery on a theory of negligence for injuries sustained directly by the Shop Owners. Quite to the contrary, the only damages claimed by the City derive from its potential liability to the Shop Owners as a result of Gibson’s alleged breach of the construction contract.

Id at 473 (emphasis added).

The district court did conclude Home was required to defend Gibson based on the City’s cause of action for indemnification. Id. at 476. This duty, however, arose not, as appellants urge in the present case, from a general allegation of contribution or indemnification in the City’s pleadings. Instead, the duty arose from an indemnification agreement in the contract between Gibson and the City and specific' provisions in Gibson’s commercial general liability insurance contract. See id. at 476-77. The policy in question excluded coverage for bodily injury or property damage for which the insured was obligated to pay damages because of an assumption of liability in a contract or agreement, but exempted from this exclusion liability assumed in a contract or agreement that was an “insured contract.” Id. at 476. The contract between Gibson and the City was an “insured contract.” See id.' at 479. In determining whether there was policy coverage for the City’s claim for indemnification of its liability to the shop owners, the district court necessarily looked at the nature of the shop owners’ claims. See id. at 478-79.

Appellants point to no provision in their homeowners or umbrella policies comparable to the provision giving rise to the duty to defend in Gibson. In the only portion of the Gibson opinion even arguably in-stractive for the present case (analysis of the City’s breach of contract claims), the Gibson court declined to consider the initial plaintiffs’ claims against the party subsequently suing the insured. We conclude the Heatons’ claim for contribution does not give rise to a duty to defend on the part of State Farm.

Heatons’ “negligence” claim. Appellants also contend State Farm had a duty to defend because the Heatons alleged a “negligence claim” in their Original Third Party Petition. As an initial matter, in making this assertion, appellants seem to overlook the rule that, in determining an insurer’s duly to defend, court must focus on the factual allegations showing the origin of the damages rather than on the legal theories alleged. See Merchs. Fast Motor Lines, Inc., 939 S.W.2d at 141.

Second, viewed in the context of the entire Original Third Party Petition, the bare allegation of “negligence” is not controlling. In their Original Third Party Petition, the Heatons alleged appellants were aware of defects in their property and the common wall related to water encroachment but assured the Heatons they were unaware of any water penetration or anything needing repair. The Heatons next asserted claims for common law fraud, statutory fraud, and engaging in false, misleading, or deceptive acts in violation of the DTPA. Finally, the Heatons set forth the following allegation of negligence: “In the alternative, Third Party Defendants’ misconduct as described above, constituted negligence which was a proximate cause of the Heatons’ damages, for which they sue herein.”

A mere characterization of negligence, alternatively made, is insufficient to convert claims based on knowing misrepresentation into a claim for recovery of property damage caused by an accident within the meaning of the insurance policies. See Freedman v. Cigna Ins. Co. of Tex., 976 S.W.2d 776, 779 (Tex.App.—Houston [1st Dist.] 1998, no pet.) (stating, even though plaintiffs in underlying case alleged negligence as an alternative claim the mere allegation of negligence does not control duty to defend); see also Jim Johnson Homes, Inc. v. Mid-Continent Cas. Co., 244 F.Supp.2d 706, 716 (N.D.Tex.2003) (stating no reading of any Texas decision would reasonably lead to conclusion that mere characterization, alternatively made, that contractor’s failure to perform building contract properly was negligent is sufficient to convert claims based on breach of express and implied covenants and warranties into claim for recovery of property damages caused by accident within meaning of liability insurance policy). The negligence claim in the Heatons’ Original Third Party Petition is at best a bare-bones allegation of negligence, insufficient to trigger State Farm’s duty to defend. See Tealwood Constr., Inc. v. Scottsdale Ins. Co., No. Civ.A.3:02-CV-2159-L, 2003 WL 22790856 at *5 (N.D.Tex. Nov.19, 2003).

The intentional nature of appellants’ injury-causing conduct. Finally, citing Cowan, appellants observe the supreme court “has rejected the notion that if an actor intended to engage in the injury-causing conduct, there can be no ‘accident.’” See Cowan, 945 S.W.2d at 828 (rejecting insurer’s argument there can be no accident if actor intended to engage in conduct giving rise to injury). Appellants then cite a series of Texas cases they claim support their position: Gehan Homes, Ltd. v. Employers Mutual Casualty Co., 146 S.W.3d 833 (Tex.App.—Dallas, pet.filed); Hallman v. Allstate Insurance Co., 114 S.W.3d 656 (Tex.App.—Dallas, 2003), rev’d, 159 S.W.3d 640, 48 Tex. Sup.Ct. J. 474, 2005 WL 563110 (Tex. Mar. 11, 2005); Acceptance Insurance Co. v. Lifecare Corp., 89 S.W.3d 773 (Tex.App.—Corpus Christi 2002, no pet.); Westchester Fire Insurance Co. v. Gulf Coast Rod, Reel & Gun Club, 64 S.W.3d 609 (Tex.App.—Houston [1st Dist.] 2001, no pet.); and Stumph v. Dallas Fire Insurance Co., 34 S.W.3d 722 (Tex.App.—Austin 2000, no pet.).5

In Gehan, the appellate court characterized the plaintiffs in the underlying case as having alleged, in part, that the insured home builder, “was negligent in relying upon the developers’ general soil analysis and in failing to obtain an accurate soil analysis upon which to base a foundation design.” Gehan, 146 S.W.3d at 837. The Gehan court specifically distinguished Jim Johnson Homes on the ground the allegations of negligence in the case before the court were “more than simply bare-bones allegations.” Id. at 842. In contrast, as discussed above, the “negligence” claim in the Heatons’ Original Third Party Petition is just that, a bare-bones allegation.

In Lifecare Corp., the plaintiff in the underlying case, a sexual assault victim, sued the insured, her attacker’s former employer, alleging the employer negligently provided inaccurate information in a request from the attacker’s subsequent employer. Lifecare Corp., 89 S.W.3d at 776. The appellate court observed, “The insured and its agents’ or employees’ conduct said to have caused the injuries were purely and simply negligence. The specific and only facts alleged against [the insured] were the negligent representations.” Id. at 778. The court also appears to have concluded the sexual assault was not expected or intended from the insured’s standpoint. Id. at 784. Thus, unlike the present case, Lifecare involved neither! allegations of intentional misrepresentation nor damage that might reasonably have been expected.

In Stumph, the plaintiff in the underlying case, a garage owner, sued the insured concrete contractor for damages caused when cement and sediment fell onto vehicles. Stumph, 34 S.W.3d at 729. As the Austin court subsequently explained, “The petition in Stumph contained facts alleging that the damages resulted from certain events and were not the natural and probable consequences of repairing a garage.” Devoe v. Great Am. Ins., 50 S.W.3d 567, 571 (Tex.App.—Austin 2001, no pet.).

As appellants acknowledge, in Gulf Coast Rod, Reel & Gun Club and Hallman, the appellate courts also concluded the damage at issue was not the intended or expected result of the alleged conduct by the insured. See Gulf Coast Rod, Reel & Gun Club, 64 S.W.3d at 613 (concluding sand erosion neither expected nor intended); Hallman, 114 S.W.3d at 661 (concluding underlying plaintiff alleged insured negligently leased her property but did not allege damages to neighboring landowners from mining operations on property were inevitable and predictable), rev’d on other grounds, 159 S.W.3d 640, 48 Tex. Sup.Ct. J. at 477, 2005 WL 563110 at *5. In contrast, one could reasonably anticipate water damage would result when one fails to disclose known water encroachment, but instead assures the buyer there is no problem. See Cowan, 945 S.W.2d at 828.

In sum, in terms of the intentional nature of the insured’s alleged conduct or the extent to which the ensuing damage could be anticipated, the cases on which appellants rely are distinguishable and do not provide persuasive authority for deciding the present case.

Under Cowan, it is the effect of intentional conduct that determines whether an event is an accident. Cowan, 945 S.W.2d at 827. As discussed above, the effect in the present case, water damage, is damage of a type that “ordinarily follow[s]” when one knows of, but intentionally does not disclose, existing water encroachment. See id. at 828. In determining State Farm had no duty to defend, we have looked not to the allegation of appellants’ intentional conduct, but to the effect of that conduct as Cowan requires.

III. CONCLUSION

Based on the allegations of the Original Third Party Petition and the applicable provisions of appellants’ policies, we conclude State Farm did not have a duty to defend appellants’ against that petition. Accordingly, we overrule appellants’ sole issue and affirm the judgment of the trial court.

      . Under the Homeowners Policy, " ‘Bodily Injury' means bodily harm, sickness or disease,” including " required care, loss of services and death that results,” and " 'Property Damage' means injury to, destruction of, or loss of use of property.” State Farm does not contend the Heatons failed to allege claims involving bodily injury or property damage.

        . Under the Umbrella Policy, " ‘personal injury’ means.. .bodily harm, sickness, disease, shock, mental anguish or mental injury” including "required care, loss of services and death resulting therefrom,” and " ‘property damage' means physical injury to or destruction of tangible property,” including "the loss of use caused by the injury or destruction.” As stated in note one above, State Farm does not contend the Heatons failed to allege claims involving bodily injury or property damage.


author: COOPER, Justice.

text:
    Ronnie Lee BOWLING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0645-MR.
    Supreme Court of Kentucky.
    Nov. 18, 2004.
    As Modified Dec. 17, 2004.
    Rehearing Denied Aug. 25, 2005.

      Susan M.J. Martin, Department of Public Advocacy, Frankfort, David Hare Har-shaw, III, Department of Public Advocacy, La Grange, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Ian G. Sonego, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   COOPER, Justice.

In 1992, a Laurel Circuit Court jury convicted Appellant, Ronnie Lee Bowling, of two counts each of murder, burglary in the first-degree, and robbery in the first degree. The trial court accepted the jury’s penalty recommendations, imposing two death sentences for the murder convictions, and four consecutive twenty-year terms for the remaining convictions. Those convictions and sentences were affirmed on appeal. Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997). In 1998, the Laurel Circuit Court denied Appellant’s RCr 11.42 motion to vacate the sentence. That decision was also affirmed. Bowling v. Commonwealth, Ky., 80 S.W.3d 405 (2002), cert. denied, 538 U.S. 931, 123 S.Ct. 1587, 155 L.Ed.2d 327 (2003).

On November 22, 2002, during the pendency of the appeal from the denial of his RCr 11.42 motion, almost ten years after entry of the judgment of his convictions, and more than five years after that judgment became final, Appellant filed a motion for a new trial under RCr 10.02 and CR 60.02. This appeal is before us as a matter of right, CR 74.02(2), from the Laurel Circuit Court’s denial of that motion. Appellant contends he was entitled to a new trial because of newly discovered evidence that (1) he was denied an impartial jury because a juror gave false answers during voir dire; (2) the jury was biased against him because of his own behavior and that of a key defense witness; and (3) the trial judge had impermissible ex parte contacts with the jurors and alternate jurors after they had been discharged. Whether to grant a new trial on grounds of newly discovered evidence is largely within the discretion of the trial court and a denial of the motion is reviewed only for abuse of discretion. Foley v. Commonwealth, Ky., 55 S.W.3d 809, 814 (2000). Finding that the trial court did not abuse its discretion in denying Appellant’s motion, we affirm.

I. TIMELINESS.

At the conclusion of Appellant’s trial, the trial court issued a verbal order forbidding all parties from contacting or interviewing the jurors. Appellant did not appeal from that order. After we affirmed his convictions and sentences on direct appeal, Appellant filed a motion in the circuit court to lift the no-contact order. The trial court denied that motion (and others) on grounds that it was without jurisdiction to rule on any motions until Appellant filed an RCr 11.42 motion. Appellant appealed that order and we affirmed. Bowling v. Commonwealth, Ky., 964 S.W.2d 803 (1998). Appellant then filed his RCr 11.42 motion. On August 7, 1998, Appellant again filed a motion to lift the no-contact order. On September 3, 1998, the trial court overruled the RCr 11.42 motion; on October 1, 1998, it overruled the motion to lift the no-contact order. Appellant appealed both rulings, and both rulings were affirmed. Bowling, 80 S.W.3d at 422, 424. While that appeal was pending, we rendered Cape Publications, Inc. v. Braden, Ky., 39 S.W.3d 823 (2001), holding that a trial court is without jurisdiction to control access to jurors after conclusion of trial-level proceedings. Id. at 827. Cape Publications was rendered on March 22, 2001. Appellant began interviewing the trial jurors on November 20, 2001, and concluded those interviews on December 19, 2001. It is the information obtained during those interviews that forms the basis for his new trial motion. The opinion affirming the order denying his motion to set aside the no-contact order was rendered on March 21, 2002, and became final on August 22, 2002, more than eight months after Appellant concluded the juror interviews. Appellant filed his motion for a new trial on grounds of “newly discovered evidence” on November 20, 2002. RCr 10.02; CR 60.02(b).

The Commonwealth contends that Appellant’s motion is untimely because he filed it nearly a decade after entry of the final judgment. We agree. RCr 10.06(1) provides, inter alia:

A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.

(Emphasis added.) Likewise, CR 60.02 limits the time for making a motion for a new trial on the grounds of newly discovered evidence to one year if the evidence “by due diligence could not have been discovered in time to move for a new trial under CR 59.02” (ten days after judgment). Unlike RCr 10.06(1), however, CR 60.02 contains no provision for extending the time limit past one year.

Appellant does not assert and the record does not indicate that he ever made a motion in the trial court for an extension of time past one year to file his motion. Perkins v. Commonwealth, Ky., 382 S.W.2d 393, 394 (1964) (motion filed more than one year after judgment became final was untimely where “[tjhere [was] no showing that the time was extended”). Appellant asserts that the court’s no-contact order prevented him from obtaining the evidence in support of his motion within one year of the judgment. That fact, however, only provided grounds to support a motion to extend past one year the time for making the motion. Even if the no-contact order could be deemed to have tolled the time for filing the motion (Appellant cites no authority for that proposition), his motion is still time-barred because he filed it more than one year after Cape Publications became final. Benes v. United States, 276 F.2d 99, 109 (6th Cir.1960) (even accepting government’s argument that period during which government was enjoined from presenting case to grand jury should not be counted toward expiration of period of limitations, only five months and fifteen days would have been so tolled or suspended, and indictment was still untimely because not issued during extended period). Appellant obviously believed that Cape Publications rendered the no-contact order a nullity as a matter of law; for he conducted his interviews of the jurors before we affirmed the trial court’s refusal to vacate the order.

Nor did the pendency of Appellant’s appeal of the trial court’s refusal to set aside the no-contact order toll the one-year period for filing the motion for a new trial. Meredith v. Commonwealth, Ky., 312 S.W.2d 460, 462 (1958) (“The remedy provided by CR 60.02(1, 2 and 3), must be sought within the year even though an appeal is being prosecuted.”); Wilson v. Commonwealth, Ky.App., 761 S.W.2d 182, 184-85 (1988) (“The wisdom of permitting such an independent attack on the conviction [by way of RCr 10.02] to proceed without awaiting the disposition of the direct appeal should be apparent. In the first place, the independent attack may render the direct appeal unnecessary.”). Even without the procedural default, however, Appellant would not be entitled to relief, as his arguments lack merit. Because this is a death penalty case, we choose to address the merits of Appellant’s arguments.

II. ALLEGED JUROR MISCONDUCT.

Appellant premises his first ground for a new trial upon an interview that Valerie Bryan and Douglas Blair, both investigators for the Department of Public Advocacy (DPA), had with a trial juror, Juror 64, on November 19, 2001. Bryan executed two affidavits and Blair executed one affidavit concerning information provided by Juror 64 during this interview. All three affidavits were executed on November 19, 2002, one year after the interview and one day before the filing of the motion for a new trial. One of Bryan’s affidavits contains the following statement: “[Juror 64] stated to us that he believed it was necessary for Mr. Bowling to prove that he was innocent in order for [Juror 64] to have reached a not guilty verdict.” Although Blair’s affidavit repeated the other information related in Bryan’s affidavits, it does not mention this statement.

1. Impeachment of verdict.

“A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.” RCr 10.04. Thus, in Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985), we held incompetent a juror’s testimony that the jury improperly considered Appellant’s mental illness and parole eligibility during penalty phase deliberations. Id. at 44. In Grace v. Commonwealth, Ky., 459 S.W.2d 143 (1970), our predecessor court held that RCr 10.04 precluded consideration of the affidavit of a juror who swore that she had not agreed to the verdict. See also Howard v. Commonwealth, Ky., 240 S.W.2d 616, 619 (1951) (same result under former Criminal Code of Practice § 272). In Jones v. Commonwealth, Ky., 450 S.W.2d 812, 814 (1970), our predecessor court held that RCr 10.04 precluded consideration of an affidavit of a juror that the jurors had considered matters not in evidence during their deliberations. It has long been the rule that jurors may give evidence to prove that the jury was not guilty of misconduct but may not impeach the verdict by stating that they acted wrongfully or irregularly. Bowman v. Commonwealth, 284 Ky. 103, 143 S.W.2d 1051, 1054 (1940).

The Sixth Circuit has also endorsed the incompetence of such evidence, in the course of holding unconstitutional an interpretation of Ohio Rule of Evidence 606(B) that precluded consideration of an affidavit attesting to improper outside influence on the jury (namely that one juror performed an outside experiment and shared the results with the other jurors). Doan v. Brigano, 237 F.3d 722, 733 (6th Cir.2001) (“A review of this misconduct stands in stark contrast to an examination of internal factors affecting the jury. Whether the jury understood the evidence presented at trial or the judge’s instructions following the presentation of the evidence ... are all internal matters for which juror testimony may not be used to challenge a final verdict.”), abrogated on other grounds as recognized by Maples v. Stegall, 340 F.3d 433 (6th Cir.2003). The same result would obtain in a case originally tried in our federal courts:

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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Fed. R. Ev. 606(b). The United States Supreme Court adopted the rule as a matter of public policy long before the adoption of the rules of evidence.

Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because, being personal, it is not accessible to other testimony. It gives to the secret thought of one the power to disturb the expressed conclusions of twelve. Its tendency is to produce bad faith on the part of a minority; to induce an apparent acquiescence with the purpose of subsequent dissent;, to induce tampering with individual jurors subsequent to the verdict.

Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917 (1892) (quotation omitted). Thus, Juror 64’s alleged statement to the DPA investigators could not be used to impeach the verdict by showing misconduct on his part during deliberations.

2. False answers during voir dire.

Alternatively, Appellant argues that Juror 64⅛ statement proves that he gave false answers during voir dire and thereby prevented Appellant both from intelligently exercising his peremptory strikes and from challenging Juror 64 for cause. The court extensively questioned Juror 64 with respect to whether he understood the presumption of innocence and the Commonwealth’s burden of proof. However, there were only three instances in which the court asked Juror 64 if he would agree to apply those principles. The first occurred when the trial court asked Juror 64 if he agreed that Appellant was presumed to be innocent “as he sits here,” i.e., before any evidence is presented.

Court: Let me state this in another way to you; okay, I’m talking hypothetical right now, if you become charged with a crime, okay?
Juror: Uh-huh.
Court: And we’re talking about you, becomes charged with a crime; okay. At that moment in time, you under our constitution have the presumption of innocence?
Juror: Uh-huh.
Court: That you’re innocent until proven guilty beyond a reasonable doubt; do you understand that?
Juror: Yeah, uh-huh, I understand that.
Court: Okay, you understand that as this defendant sits here, he is presumed to be innocent?
Juror: Uh-huh. I understand that.
Court: Okay, do you agree with that and will abide by that?
Juror: Yeah, uh-huh.

The second occasion occurred when the trial court asked Juror 64 to assume hypothetically that the prosecutor “comes in and he announces he has no evidence to introduce in the trial,” and asked, “in that hypothetical, what would your decision be?” Juror 64 responded:

Guy’d have to be innocent. Until you’ve got — if you have a eyewitness or proof, I mean you’ve got to have eyewitness; you innocent until proven guilty.... If you can’t prove it, you innocent.

The trial court then asked Juror 64 to assume hypothetically (1) the Commonwealth presented evidence that did not convince him of Appellant’s guilt, and (2) Appellant presented no evidence. Again, the juror replied that he would find Appellant:

Not guilty, because you still ain’t got no evidence, I mean you’ve the — just take for example, say I committed a crime, or just say that I was a victim, you know what I’m talking about? Say it was a robbery at the bank, out on [highway] 25. And somebody see me walking down the road, so they picked me up, you know at the same time that the crime occurred; and say I was a victim, okay, and they can’t prove me guilty until they have — they got to have some kind of evidence in order for me to be guilty. You know what I’m talking about? ... I mean they can’t just pick me up and say he’s guilty, he’s the one robbed the bank. I mean it’s still the same case; I mean if you ain’t got no eyewitness how can you call a person guilty?

Appellant claims Juror 64’s statement to the investigators proves that he lied when he made these three statements during voir dire.

To obtain a new trial because of juror mendacity, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.”

Adkins v. Commonwealth, Ky., 96 S.W.3d 779, 796 (2003) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)). McDonough also noted that expecting jurors to perfectly understand certain terms and concepts is unrealistic because “[cjalled as ljurors] are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.” 464 U.S. at 555,104 S.Ct. at 849. Furthermore, “[t]he cases in which juror statements have been considered generally have involved deliberate or inadvertent nondisclosure of pertinent historical facts during voir dire; courts have been much more hesitant to consider statements that jurors failed to put personal prejudices aside during deliberations.” Brofford v. Marshall, 751 F.2d 845, 853 (6th Cir.1985).

In overruling Appellant’s motion for a new trial, the trial court obviously believed that Juror 64’s statement to the investigators did not prove that he gave dishonest answers during voir dire ten years before. That finding is supported by a reasonable interpretation of the juror’s statements, thus was not clearly erroneous. Commonwealth v. Deloney, Ky., 20 S.W.3d 471, 474 (2000) (“The bottom line is that the trial judge’s finding that Clemons’s comment was inadvertent and did not amount to bad faith, overreaching, or fundamentally unfair conduct was supported by substantial evidence, thus was not clearly erroneous .... ”). What Juror 64 said during voir dire was that he would presume Appellant innocent “as he sits here” before any evidence is presented; that he would find Appellant not guilty if the Commonwealth presented no evidence; and that he would find him not guilty if the Commonwealth did not prove him guilty beyond a reasonable doubt even if Appellant presented no evidence. However, he did not say that he would not expect Appellant to present evidence of his innocence if the Commonwealth presented sufficient evidence of his guilt to otherwise support a conviction. Juror 64’s statement to the investigators is consistent with the latter scenario, thus does not compel a finding that he intentionally lied under oath during voir dire.

III. OUTSIDE INFLUENCE.

Appellant complains that the jury was exposed to improper outside influences. Although RCr 10.04 facially proscribes juror testimony about anything that occurred in the jury room unless the testimony establishes that the verdict was made by lot, an interpretation of RCr 10.04 that would exclude evidence of outside influence obviously would implicate a defendant’s Sixth Amendment right to confrontation, because the jury would be exposed ex parte to evidence that was not subject to cross-examination. See Parker v. Gladden, 385 U.S. 363, 364-65, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965). In Doan v. Brigano, the Sixth Circuit declared that an Ohio Rule of Evidence proscribing juror testimony on outside influence absent evidence independent of that furnished by the jurors, themselves, was unconstitutional as contrary to established Supreme Court precedent. Doan, 237 F.3d at 732. Specifically, in Mattox v. United States, the juror affidavits described one instance in which the bailiff made inappropriate remarks to them regarding the defendant’s guilt and informed them that this was the third man he had killed, 146 U.S. at 142,13 S.Ct. at 51, and another instance in which a newspaper article that commented on the strength of the evidence against the defendant was brought into the jury room and read aloud in the presence of the jury. Id. at 143, 13 S.Ct. at 51-52. Distinguishing between the “secret thought[s] of one [juror]” and the exposure of the jury to extraneous prejudicial information, the Court held that the evidence of outside influence was admissible and required a new trial. Id. at 148-49, 153, 13 S.Ct. at 53-54. Likewise, in Parker, the Court ordered a new trial where the bailiff told the jury during deliberations that the defendant was a “wicked man,” that he was guilty, and that any error in finding the defendant guilty would be corrected by the Supreme Court. Id. at 363-64, 87 S.Ct. at 470.

Similarly, in Ne Camp v. Commonwealth, 311 Ky. 676, 225 S.W.2d 109, 112 (1949), our predecessor court held that Criminal Code of Practice § 272, which contained language identical to RCr 10.04, could not be used to render incompetent evidence that a juror told another juror during deliberations that she had sought the advice of a priest who advised her that it would not be a sin to impose the death penalty. And in Hodge v. Commonwealth, Ky., 68 S.W.3d 338 (2001), we remanded an appeal from the denial of an RCr 11.42 motion in a death penalty case for an evidentiary hearing on an allegation of jury tampering during deliberations. Id. at 341-42.

Several of the juror affidavits in this case related an incident in which one of the jurors raised a window in the jury room and observed one of Appellant’s male relatives who had been a key defense witness standing outside and staring at the jury room window. This caused some of the jurors to become uncomfortable, and they requested the sheriff to ask the man to move away from the window. The seminal case on inappropriate juror contacts, Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), states that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial ... is, for obvious reasons, deemed presumptively prejudicial ...” Id. at 229, 74 S.Ct. at 451. However, a hearing is required “only when the alleged contact presents a likelihood of affecting the verdict,” and bias is not implied, but must be demonstrated by the moving party. United States v. Frost, 125 F.3d 346, 377 (6th Cir.1997).

This particular “contact” was brief and limited. United States v. Walton, 908 F.2d 1289, 1297 (6th Cir.1990). It would be tenuous, at best, to conclude that a brief look, or even a glare, required a finding of bias. White v. Smith, 984 F.2d 163, 165 (6th Cir.1993) (defendant’s mother’s remark to the jurors that she would pray for them was innocuous); United States v. Marques, 600 F.2d 742, 747 (9th Cir.1979) (no hearing required where juror merely saw the four defendants in the case entering the same car). Additionally, all of the cases upon which Appellant relies involved much more significant contact than occurred in the case sub judice. See, e.g., United States v. Jackson, 209 F.3d 1103, 1107-08 (9th Cir.2000) (threatening telephone call); United States v. Cheek, 94 F.3d 136, 139 (4th Cir.1996) (bail bondsman claiming to be a representative of the court took juror to what apparently was intended to be a meeting with defendant); Krause v. Rhodes, 570 F.2d 563, 565 (6th Cir.1977) (direct threats against juror and his family); State v. Bailey, 713 So.2d 588, 608-09 (La.Ct.App.1998) (juror told other jurors that his wife had received a telephone call from a person with the same name as defendant and that the caller had asked to speak to their daughter); State v. Bisaccia, 319 N.J.Super. 1, 724 A.2d 836, 839 (1999) (two jurors were followed by a man whom they had seen in the courtroom). Jurors are often exposed during trial to numerous witnesses and spectators. To conclude that a mere unkind look from one of them warrants a new trial would create endless possibilities for frivolous claims that would wreak havoc upon the finality of judgments.

Some of the juror affidavits alleged that Appellant had winked and smiled in a flirtatious manner at some of the female jurors. Appellant’s argument that these incidents resulted in prejudicial bias fails for the same reasons as the previously discussed incident. Furthermore, Appellant could not obtain relief from any prejudice resulting from his own improper behavior during trial. Ex Parte Frazier, 758 So.2d 611, 614 (Ala.1999) (defendant threw pen at jury and called them “motherf-white jurors”); State v. Linkous, 177 W.Va. 621, 355 S.E.2d 410, 413 (1987) (jurors saw defendant in a scuffle with officers at trial: “It appears to be rather uniformly held that misconduct or disruptive behavior on the part of a defendant during the course of a criminal trial will not establish grounds for obtaining a mistrial.”).

IV. CONTACTS BETWEEN JUDGE AND JURORS.

Some of the juror affidavits alleged that the trial judge met with the alternate jurors after they had been dismissed to learn their feelings about the case; and that he met with the trial jurors after they had been discharged from then-duties at the conclusion of the penalty phase and that he had told these jurors that they had “done the right thing.” To further convince them, he divulged evidence that had been excluded at trial, ie., that Ora Lee Isaacs, Appellant’s former wife, would have testified that Appellant returned home after one of the robberies with money and a gun, and that Appellant had physically abused her. Appellant claims that the prosecutor, despite the no-contact order, was present at those meetings, and that all of these circumstances resulted in a denial of due process and fair sentencing.

We first dispense with Appellant’s arguments concerning the three alternate jurors. The meeting took place in the judge’s chambers after the remaining jurors had begun their deliberations. One alternate juror’s affidavit stated that she could not remember the substance of the conversation but did remember asking the judge why she had been removed from the jury. Another stated that she told the judge that she thought the evidence was insufficient to support a conviction. The third stated that she had doubts about the case because there was no eyewitness testimony.

Criminal defendants are guaranteed the right to be present at “critical stages” of the trial. RCr 8.28(1). However, this meeting between the judge and the alternate jurors was not any “stage” of the trial, much less a “critical stage.” Because the alternate jurors had already been dismissed, they no longer had the power to influence the outcome of the proceedings. And based on their affidavits, it is clear that none of these jurors told the trial judge anything that would have influenced his decision to impose a harsher penalty. Thus, the ex parte meeting did not result in prejudice to Appellant. Washington v. United States, 291 F.Supp.2d 418, 440-41 (W.D.Va.2003).

The same result obtains with respect to the trial judge’s post-trial meeting with the jurors who had participated in deliberations. Since the jurors had been discharged from jury service when the meeting occurred, the trial judge’s comments could not have prejudiced the jurors against Appellant. Rather, Appellant argues that (1) the trial judge’s statement that the jurors “did the right thing,” which he made before final sentencing, indicates that he had prejudged Appellant’s sentencing and thereby deprived Appellant of a fair sentencing hearing; (2) at sentencing, the trial court improperly considered suppressed evidence proffered by Isaacs, which was never subject to cross-examination; and (3) the prosecutor gained an unfair litigation advantage over Appellant because of his presence at these ex parte meetings.

With respect to the first argument, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). This Court has previously considered a juror’s testimony that a trial judge told a jury that it did “the right thing” by returning a recommendation for death, and we concluded that this purported evidence of the trial judge’s bias was “woefully insufficient” to set aside the defendant’s sentence. Taylor v. Commonwealth, Ky., 63 S.W.3d 151, 166 (2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1371, 158 L.Ed.2d 177 (2004). See also United States v. Beard, 960 F.2d 965, 970 (11th Cir.1992) (trial judge’s negative personal opinion of the defendant, stated to the jury after the verdict was returned, did not “stray from neutrality”); United States v. Battle, 235 F.Supp.2d 1301, 1348 (N.D.Ga.2001) (alleged post-trial contact between judge and jury in which judge told jury that it had made the right decision was “unwise, but not reflective of bias against the Defendant”). In the case sub judiee, where there is no other evidence of personal bias on the part of the trial judge, his mere comment to several jurors that they had done the right thing did not reflect bias such to per se deny Appellant a fair sentencing.

The essence of Appellant’s second argument is that by citing the excluded evidence in his conversation with the trial jurors, the trial judge revealed that he credited it as reliable and thus considered it in sentencing Appellant to death. Citing Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Appellant contends that he was denied due process of law because the trial judge imposed the death sentence based in part on evidence that Appellant had no opportunity to cross-examine or explain. See id. at 362, 97 S.Ct. at 1207. We disagree.

The judge in Gardner explicitly disclosed that he relied on information not revealed to the defendant in reaching his sentencing decision. Id. at 351, 97 S.Ct. at 1201. In contrast, before sentencing Appellant, the trial judge in this case stated that he would “just rely upon [his] recollections of the evidence in the case ....” In sentencing Appellant for the non-capital offenses, the trial judge considered no additional information except for the presen-tence report prepared by Appellant’s probation officer. “Trial judges are presumed to know the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This presumption applies as well to the evidence relied upon by a trial judge in reaching his sentencing determination. As there was no indication in the record that the trial judge considered any evidence that Appellant did not have the opportunity to confront or explain, there was no due process violation. Paradis v. Arave, 20 F.3d 950, 956-57 (9th Cir.1994).

Finally, Appellant argues that the prosecutor’s presence at the trial judge’s meeting with the excused jurors gave the Commonwealth an unfair litigation advantage, by exposing the prosecutor to the judge’s opinion of both the jury’s verdict and the reliability of Isaacs’s excluded testimony. This claim is also mer-itless. Cf. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (Appellant “has no constitutional right to be present at every interaction between a judge and ... juror”). There is “a due process right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge .... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ ” Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934)).

While such post-trial meetings between judge, juror, and prosecutor should be avoided to minimize any appearance of impropriety, Appellant has failed to show that his absence from this meeting thwarted a fair and just sentencing. If the trial judge had indeed formed a preliminary opinion as to the merits of the jury’s sentence recommendation before the formal sentencing proceedings occurred, Appellant has not demonstrated that the prosecutor’s knowledge of the judge’s supposed opinion would have changed the arguments presented at formal sentencing. Additionally, since the trial judge did not consider Isaacs’s evidence in setting the sentence, his opinion of the testimony was of no benefit to the prosecutor or consequence to Appellant. Thus, the prosecutor’s presence during the trial judge’s meeting with the former jurors was harmless beyond a reasonable doubt.

Accordingly, the Laurel Circuit Court’s order denying Appellant’s motion for a new trial is AFFIRMED.

GRAVES, JOHNSTONE, KELLER, STUMBO, and WINTERSHEIMER, JJ., concur.

LAMBERT, C.J., not sitting.

      . Although the opinion did not specify the reasons for the affirmance, it presumably was because the order became the "law of the case” when Appellant did not challenge it on his direct appeal. Commonwealth v. Schaefer, Ky., 639 S.W.2d 776 (1982). See also Arbe-laez v. State, 775 So.2d 909, 920 (Fla.2000) ("Any claims relating to [defendant’s] inability to interview jurors should and could have been raised on direct appeal.”).

      . The trial court did not address this issue. However, Appellant is incorrect in his assertion that the Commonwealth was required to "preserve” this issue for appeal by objection or, alternatively, by cross-appeal. First, the Commonwealth raised the issue of timeliness below in its answer to Appellant’s motion for a new trial. Second, a cross-appeal was not required because the result reached by the trial court was not adverse to the Commonwealth. Brown v. Barkley, Ky., 628 S.W.2d 616, 618 (1982); cf. Commonwealth v. Vester, Ky., 956 S.W.2d 204, 205-06 (1997) (on appeal from Board of Claims, prevailing party was not required to file a cross-appeal to assert that the Board reached the right result for the wrong reason).

      . CR 60.02(f) is not applicable in this case, because Appellant did not specifically invoke it. Hartford Accident & Indem. Co. v. Lewis, Ky., 296 S.W.2d 228, 231 (1956) ("We hold that ground 6 [now (f) ] must be clearly stated in a written motion or petition attempting to invoke it.’’).

      . We need not decide whether hearsay is admissible at a hearing on a motion for a new trial. The trial court declined to hold an evidentiary hearing, thus accepting the affidavits in lieu of sworn testimony. Whether to hold an evidentiary hearing on a motion for a new trial is within the sound discretion of the trial court. Foley, 55 S.W.3d at 816; Wheeler v. Commonwealth, Ky., 395 S.W.2d 569, 572 (1965).

      . Presumably, this evidence was excluded at trial because of the husband-wife privilege. KRE 504(b).