Cole v. State

ON MOTION FOR REHEARING.

MORRISON, Judge.

Appellant contends that we were in error in our original disposition of his contention concerning jury misconduct.

It has been the uniform holding of this court that, where a juror has a conversation with an unauthorized person out of the presence of the court, a presumption of injury is raised. 42 Texas Jurisprudence, Sec. 317, p. 399; Maxey v. State, 138 Tex. Cr. R. 27, 133 S. W. (2d) 785.

It has also been continuously held for many years that such is a rebuttable presumption, and it becomes the duty of the state *477to call all parties to the conversation…