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Click here for the full text of this decision FACTS:The trial court convicted Jimmie Urbano Lucero on May 23, 2005, of murdering three of his neighbors during the same criminal transaction. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Art. 37.071, ��2(b) and 2(e), the trial judge sentenced Lucero to death. Lucero appealed directly to the CCA. First, Lucero asserted that the trial court erred in denying him a hearing on his juror misconduct claim. Second, he asserted that the jury committed misconduct under the U.S. Constitution when it considered Biblical scripture during the punishment-phase deliberations. The record reflects that Lucero filed new trial motions (an original and an amended motion) alleging that the jury foreman read Biblical scripture to the jury at the beginning of the punishment-phase deliberations after an initial straw vote showing that two jurors were unwilling to answer the special issues in a way that required Lucero to be sentenced to death. These motions alleged: “This scripture addressed a Christian’s duty to obey and consent to the laws of man. . . It also informed the listeners that those who opposed authority would experience condemnation.” Lucero supported these allegations with an affidavit from one of the jurors (juror No. 7). Lucero claimed that the Bible reading by the jury foreman was an improper “outside influence” under Texas Rule of Evidence 606(b), which generally prohibits a juror from testifying about jury deliberations for the purpose of impeaching the jury’s verdict with an exception to this general rule being that a juror may testify “whether any outside influence was improperly brought to bear upon any juror.” Lucero further claimed that it was mandatory for the trial court to hold a hearing on his new trial motions so that Lucero could “develop the circumstances of the Bible reading and the exact content of the biblical verse read by the foreman to the entire jury.” Lucero also claimed in his new trial motions that he was entitled to a hearing on these motions because “key jurors refuse[d] to discuss the matter with counsel or with any representative of counsel.” Relying primarily on civil cases, the state’s response asserted that the Bible reading was not an “outside influence” and that Lucero was, therefore, improperly attempting to impeach the jury’s verdict under Rule 606(b). The state submitted affidavits from all 12 jurors, all of which indicated that the verdict was not affected by the brief reading of Biblical scripture near the beginning of the hours-long jury deliberations. The two jurors who changed their votes after the preliminary vote unequivocally stated that the reading of the scripture and its content had no effect on their votes on the issues presented to the jury. Juror No. 3 stated: “The scripture was not read in a way to force us to agree with it.” The second of the two jurors to change their vote stated: “The scripture was not read in a way to force us to agree with it. The jury was not asked to agree with the scripture that was read or to change our decisions based upon its reading or content. I did not feel I was going to be condemned if I did not vote for a particular verdict or answer a question in a particular way . . . . I am today comfortable with my votes and individual decision I made during my service on this jury. We followed the court’s instructions.” All 12 jurors believed that the scripture reading did not violate any right of the defendant and that the defendant received a fair and impartial trial. All 12 jurors indicated that there was no discussion that Biblical principles should be considered or applied in defendant’s case. More specifically, Juror No. 7 addressed any misconception that may have been construed from the affidavit previously obtained by Lucero’s counsel: “There was no passage read suggesting that a murderer should be executed under Biblical law. There was no Bible passage read about the principal of a limb for a limb or an eye for an eye or tooth for a tooth. There was no discussion that such a Biblical principle should be considered or applied in this case to the Defendant, Jimmie Urbano Lucero.” The trial court denied Lucero’s request for a hearing on his new trial motions. In a letter to the parties announcing its decision, the trial court stated: “To conduct a hearing simply to make a record, without any expectation that the hearing would result in admissible evidence, does not protect jurors from the inconvenience and potential harassment that such a hearing would impose. Therefore, under the present circumstances, I do not believe that the Defendant has raised an issue which would require an evidentiary hearing.” Lucero claimed on appeal that the trial court should have held a hearing on his new trial motions and that the reading of Biblical scripture during the punishment-phase deliberations denied his rights to an impartial jury and punishment determination in violation of the 6th, 8th and 14th Amendments to the U.S. Constitution. The state claimed that Lucero procedurally defaulted these constitutional claims on appeal, because he did not raise them in the trial court. The state also claimed that the trial court did not abuse its discretion to deny Lucero’s request for a hearing on his new trial motions, because the matters described in juror No. 7′s first affidavit did not constitute an “outside influence” and would, therefore, be excluded by Rule 606(b) at a motion for new trial hearing. HOLDING:Affirmed. A defendant, the CCA stated, is entitled to an evidentiary hearing on his motion for new trial if the motion and accompanying affidavit(s) raise matters not determinable from the record, upon which the accused could be entitled to relief. The CCA found it unnecessary to decide whether the jury foreman’s Bible reading in this case was an “outside influence,” because the record presented no “reasonable grounds” that the Bible reading affected the jury’s verdict. The record, the CCA stated, indicated that the foreman’s brief reading of Biblical scripture was essentially an admonishment to follow man’s law and therefore duplicated what was already in the court’s charge. The CCA also noted that the reading occurred near the beginning of jury deliberations. The affidavits, the CCA stated, clearly indicated that the scripture had no effect on the jury’s verdict rendered some hours later. The CCA therefore could not conclude that the trial court abused its discretion in declining to hold a hearing on Lucero’s new trial motions. For the same reason, any constitutional error that Lucero may have preserved as a result of this Bible reading was harmless beyond a reasonable doubt. Next, Lucero claimed that the trial court erroneously overruled his objections to the testimony of Royce Smithee, who provided fact testimony about Texas prison conditions in general and opinion testimony that violence can occur within the Texas prison system. Lucero claimed that Smithee’s testimony was irrelevant under Rule 401 and, therefore, would not aid the jury in determining a fact in issue under Rule 702. The trial court ruled that Smithee could testify generally about the operations of the Texas prison system and offer an opinion that violence can occur there. The CCA found that the testimony went to the issue of future dangerousness. The CCA held that the trial court did not abuse its discretion in admitting Smithee’s testimony, because it aided the jury in determining Lucero’s future dangerousness, such as considering whether Lucero, with his history of assaultive behavior, would have opportunities to commit violent acts in prison if sentenced to life in prison. Lucero claimed that the state delivered improper jury argument at the punishment phase by referring to an offense for which Lucero received probation. The CCA stated that it did not believe the jury’s answers to the special issues resulting in Lucero’s death sentence hinged on any efforts by Lucero’s family to persuade the authorities to show leniency on Lucero in the 1995 burglary case. Lucero also claimed that the state improperly referred to his failure to testify. Reviewing the record, the CCA found that it was “not clear that the jury would have naturally understood the State’s argument that”[w]e don’t know whether [Lucero is] concerned about it at all, folks’ as referring to appellant’s failure to take the stand at punishment to express remorse.” OPINION:Hervey, J., delivered the opinion of the court in which Keller, P.J., and Meyers, Womack, Keasler, Holcomb and Cochran, JJ., joined. CONCURRENCE:Price and Johnson, JJ., concurred without a written opinion.

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