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Najar v. State

Court of Appeals of Texas, Fourteenth District

August 29, 2019


          On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1503083

          Panel consists of Justices Christopher, Bourliot, and Spain.



         The ultimate issue in this appeal concerns whether the jury followed the trial court's charge: "During your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge or information you may have about any fact or person connected with this case which is not shown by the evidence." As a society, we generally balance the need for confidentiality in jury deliberation versus the integrity of the jury trial in favor of jury confidentiality.

         We also generally presume the jury follows the court's charge. This appeal presents a rare instance in which what occurred during deliberation is open for review. And because the uncontroverted evidence is the jury did not follow the court's charge and considered outside evidence that was adverse on a critical issue, we must reverse.

         A jury found appellant Zaid Adnan Najar guilty of the third-degree felony of fleeing, using a vehicle, from a peace officer who was attempting lawfully to detain him. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A).[1] The trial court assessed punishment at ten-years imprisonment, suspended the sentence, and placed appellant on four-years community supervision. In two issues, appellant asserts the trial court erred in denying his motion for new trial based on (1) other evidence received by the jury during deliberation and (2) a claim of ineffective assistance of counsel regarding his trial counsel's advice on the immigration consequences of the State's plea offer. Because we find the trial court erred in denying appellant's motion for new trial, we reverse the trial court's judgment and remand the case for further proceedings.[2]


         A. Appellant's Arrest

         On March 17, 2016, at approximately 10 p.m., Officer Bachar of the Houston Police Department observed a white Ford Mustang driving at 100 miles per hour in the far-left lane of the I-610 freeway in the Galleria area. Bachar also noticed flashing red-and-blue lights emanating from the vehicle. At first glance, Bachar thought the vehicle was a law enforcement vehicle because of the flashing lights. However, upon a closer look, he realized it was a private vehicle. At that point, Bachar turned on his own emergency equipment, which included flashing lights and a siren. Bachar followed the vehicle for approximately two miles before the vehicle pulled over. During that time, the vehicle's driver cut across three lanes of traffic into the far-right lane. Bachar testified that he believed the driver was going to exit the freeway at this point; however, the driver then went back across the three lanes of traffic until the vehicle was again in the far-left lane. At no time did the vehicle's driver use his turn signals to indicate lane changes. When Bachar was within twenty-five feet of the vehicle, it came to a sudden stop in the right-hand shoulder of the freeway. Bachar then approached the vehicle and identified appellant as the driver.

         B. Trial

         During her opening statement, appellant's trial counsel emphasized that appellant was already driving over 100 miles per hour when Bachar turned on his lights and siren. Counsel pointed out that appellant's vehicle was surrounded by other vehicles on the freeway for the two-mile period during which Bachar attempted to signal to appellant to pull over. Counsel further emphasized that it was not until Bachar was within close range of appellant that appellant immediately decelerated. Bachar was the only witness to testify. Both the State and appellant's trial counsel asked Bachar questions directed to illuminate whether appellant knew that Bachar was attempting to pull him over. In closing, appellant's trial counsel argued that appellant "did not realize that [sic] officer was trying to pull him over until the second the officer got behind him." The State argued that appellant's weaving between lanes and speeding made it clear he knew he was being pulled over. Ultimately, the jury was left to determine whether appellant was aware that Bachar was attempting to detain him.

         After briefly deliberating, the jury returned with a guilty verdict.

         C. Post-trial

         Attorneys for the State and for appellant interviewed the jury after announcement of the verdict. One of the jurors informed the attorneys that while they were in the jury room deliberating, they heard a siren coming from outside on the street fifteen floors below. The members of the jury reasoned that if they could hear the siren while inside the building, appellant should have been able to hear the officer's siren while in his vehicle. The juror said this reasoning was used by the jury as a whole in finding appellant guilty of the charged offense.

         Appellant filed a motion for new trial arguing that (1) the jury received adverse outside evidence during deliberation and (2) appellant received ineffective assistance of counsel. The trial court held a hearing on the motion. Before appellant and the State presented their arguments, appellant's counsel offered affidavits from appellant's trial counsel and co-counsel in which each attorney recounted the jury's comments regarding hearing a siren while deliberating. Appellant's counsel pointed out that the State agreed with the "factual basis of the affidavit" and that there was solely a "dispute on the law." Counsel for the State replied, "that's correct." And when asked by the trial court whether the State had any objections to the affidavits, the State's counsel replied, "no objections, your honor." The court admitted the affidavits into evidence. Appellant's counsel then presented his arguments on the two issues. After which, the State responded by arguing that the allegations in the affidavit did not constitute an "outside influence."[3]

         After listening to arguments and reviewing the affidavits presented by both parties, the trial court denied the motion for new trial on both grounds. On appeal, appellant argues the trial court erred in denying his motion for ...

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