Dan Olin Jr., the 42-year-old Brownwood man convicted in December of continuous sexual abuse of young child or children, has been granted a new trial.
    35th District Court Judge Steve Ellis set aside Olin’s conviction and 25-year prison sentence and granted appellate attorney Erika Copeland’s motion for a new trial. The jury that convicted Olin was inadvertently given access to evidence that had not been admitted during the trial, Ellis ruled in a court order he signed Tuesday.
    That evidence was “clearly detrimental to (Olin’s) case,” Ellis wrote. The state has the right to appeal Ellis’ decision.
    Ellis heard evidence presented by Copeland and Assistant District Attorney in a Feb. 17 hearing and did not immediately rule on whether Olin was entitled to a new trial. Bird contended at the hearing that the disputed evidence had been admitted during the trial, even though the jury never saw the evidence until in the jury room for deliberations.
    Bird also argued that the evidence was neither new nor detrimental to the defendant, and that jurors had heard the same information from a witness who testified.
    According to Ellis’ ruling:
    During the trial, Ellis allowed the state to call, over defense attorney Jud Woodley’s objection, an Olin family member as a rebuttal witness. Ellis allowed the testimony “along with any supporting evidence such as jail phone calls, State’s Exhibit 47 and 48.”
    Those two exhibits contained recordings of jailhouse phone calls involving Olin.
    But the state did not introduce those exhibits in the jury’s presence, and “therefore, they were never actually admitted into evidence,” Ellis’ ruling states.
    Court personnel, believing exhibits 47 and 48 had been admitted, inadvertently included the exhibits, along with other admitted evidence, in the stack of exhibits delivered to the jury room.
    “During their deliberations, the jury listened to state’s exhibits 47 and 48 for the first time, since they had never been admitted into evidence in their presence,” Ellis’ ruling states.
    Jurors reached a guilty verdict on Dec. 9 after deliberating for 6 1/2 hours and assessed a 25-year sentence.
    On Jan. 5, Bird and District Attorney Micheal Murray presented Ellis with a written motion. The motion included a reference to two jurors who made statements after the trial. The statements possibly indicted jurors had listened to a recorded jail phone call during deliberations that had been introduced, but not admitted, into evidence.
    Copland filed a motion for a new trial on Jan. 9.
    Texas Rules of Appellate Procedure state a defendant must be granted a new trial when the jury “has received other evidence” after retiring to deliberate.
    “The burden of proof is upon the defendant to establish a two-prong test for granting a new trial, which requires that the evidence must have been received by the jury and must have been adverse or detrimental to the defendant,” Ellis’ ruling states.
    One of the jurors testified at the Feb. 17 hearing that exhibits 47 and 48 did not, in his opinion, contain new information. The juror testified he did not believe there had been any outside influence on the jury.
    “However, the trial court must not speculate on the probable effect of the evidence upon the jury,” Ellis’ ruling states. The trial court also must not make a determination that one or more jurors were persuaded to vote guilty because of improper information, the ruling states.
    The trial court must determine whether the evidence received after deliberations was “new and detrimental to the defendant,” Ellis wrote.
    The recordings in exhibits 47 and 48 included statements by Olin. Olin in the jailhouse phone call said for a family member to  deny everything, but if she did testify, to “screw them around,” Ellis’ ruling states.
    “These statements, coming from the defendant himself, who did not testify in the actual trial before the jury, are clearly detrimental to his case,” Ellis wrote.