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Criminal Law No. 74-079, 6/4/2003. Click here for the full text of this decision FACTS: The appellant was convicted of capital murder and sentenced to death. During the course of their investigation, police officers interviewed the appellant’s brother, Bill Bustamante, and procured from him a signed, written statement. During the guilt/innocence phase of trial, the state called Bill to testify, but he declined. Upon the state’s request, the trial court granted Bill immunity for any testimony given at the trial and ordered him to testify. Bill Bustamante persisted in his refusal to testify and the trial court held him in contempt. His written statement, which had been marked state’s Exhibit 107, was never admitted into evidence. Another item, a chart or graph, was later marked as Exhibit 107 and admitted into evidence. Both items marked “Exhibit 107″ were included with the exhibits in the jury room. During jury deliberations on guilt, one of the jurors read the Bill Bustamante statement aloud while others listened with varying degrees of attentiveness. After the statement was read, the jurors became concerned about whether it was properly before them. As a result, the jury foreman sent a note to the trial judge asking, “Judge, can we use exhibit 107 in making our decision?” The trial judge subsequently discovered that Bill Bustamante’s written statement was in the jury room and had it removed. HOLDING: Affirmed. The appellant contends that the trial court should have granted a mistrial or a new trial because the jury’s examination of the Bill Bustamante statement constituted the receipt of evidence that was not admitted at trial. The pertinent rule regarding a new trial is Texas Rule of Appellate Procedure 21.3(f), which requires, in relevant part, that a new trial be granted “when, after retiring to deliberate, the jury has received other evidence.” Before the rules of appellate procedure were adopted, this rule was codified, in virtually identical language, at Texas Code of Criminal Procedure 40.03(7). The court construes Rule 21.3(f) in the same manner as it construed its predecessor statute. Under caselaw from this court construing the predecessor statute, a two-prong test must be satisfied for the defendant to obtain a new trial: 1. the evidence must have been received by the jury; and 2. the evidence must be detrimental or adverse to the defendant. Eckert v. State, 623 S.W.2d 359 (Tex. Crim. App. 1981). In determining whether evidence was “received” by the jury, a court may consider how extensively the evidence was examined by the jury and whether the jury was given an instruction to disregard. In Eckert v. State, the court observed that an instruction to disregard at the deliberations stage is “similar to the corrective action of an instruction to disregard evidence improperly introduced at trial.” If the trial court gives an instruction to disregard and that instruction is found to be effective, then it is as though the evidence was never “received” by the jury. Caselaw is not clear on whether the same standards apply to mistrials – where the issue is manifested before the jury has reached a verdict. Several cases involving unauthorized communications, covered in the same new trial rule as the receipt of other evidence, have not distinguished between new trial and mistrial situations. In Brown v. State, 516 S.W.2d 145 (Tex. Crim. App. 1974), the receipt of other evidence and a mistrial were at issue, but the court did not address whether raising the issue before or after trial made a difference. The court simply observed that this was a different case because the events at issue occurred before deliberations had begun. Nevertheless, the court analogized to other situations, including the new trial rule, and determined that a mistrial was not required if an instruction to disregard would have cured the error. This holding is in line with Eckert, a new trial case, holding that an instruction to disregard during deliberations was comparable in effect to an instruction to disregard inadmissible evidence. At least with respect to whether an instruction to disregard can cure the error, then, the standards are the same. In this case, the jurors recognized that there was a potential problem with the Bill Bustamante statement and queried the trial judge for instructions. The trial judge then carefully examined all of the jurors regarding the matter. In response to the trial judge’s questioning, all the jurors stated that they could follow an instruction to disregard the statement. The trial judge subsequently issued an instruction to disregard. Under the circumstances presented here, the court finds that the Bill Bustamante statement was not “received” by the jury and any error associated with that statement was cured by instruction. OPINION: Keller, P.J.; Meyers, Price, Womack, Keasler, Hervey, Holcomb and Cochran, JJ., join. Johnson, J. dissents.

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