To establish jury misconduct, the complaining party must show that misconduct occurred, that it was material, and that based on the record as a whole, it probably resulted in harm. TEX. R. CIV. P. 327(a); Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex. 1985).
However, TEX. R. CIV. P. 327(b) and TEX. R. EVID. 606(b) provide that the only evidence of jury misconduct a trial court may consider is evidence that an outside influence was brought to bear on a juror. Wooten v. Southern Pac. Transp. Co., 928 S.W.2d 76, 78 (Tex. App. -- Houston [14th Dist.] 1995, no writ).
Outside influence does not mean "influence emanating from outside the evidence." Wooten v. Southern Pac. Transp. Co., 928 S.W.2d at 78-79. Rather, it means outside influence from a nonjuror. Id.
A defendant is constitutionally guaranteed the right to be tried by impartial jurors whose verdict is based on the evidence at trial rather than elicited by external influences. See Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996); Nguyen v. State, 977 S.W.2d 450, 457 (Tex. App.--Austin 1998), aff'd, 1 S.W.3d 694 (Tex. Crim. App. 1999).
A defendant seeking reversal on the basis of external juror influence must show either actual or inherent harm. See Nguyen, 977 S.W.2d at 457.
The test for actual influence is whether jurors actually articulated being aware of a prejudicial effect. See id. Inherent influence is shown by a reasonable probability that the influence interfered with the jury's verdict and is a rarity reserved for extreme situations. See id.