Opinion
Nos. 05-02-01796-CR, 05-02-01797-CR.
Opinion issued February 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50961-LQ F02-50962-LQ. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
MEMORANDUM OPINION
In these appeals, Alexander Burden challenges his convictions for aggravated sexual assault and aggravated kidnapping. He complains in a single point of error that the trial court erred in both cases by communicating with the jury in a manner violative of article 36.27 of the Texas Code of Criminal Procedure. We affirm the trial court's judgments. The background of the two cases and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the cases is well settled. Appellant contends in his sole point of error that the trial court erred when it answered in writing three questions that had been submitted by the jury. In particular, appellant contends the trial court erred when it answered the jury's question about whether appellant's two sentences would be served "per charge or concurrent." Appellant argues that the trial court's written response that the sentences would run concurrently constituted an additional instruction to the jury. He complains that the trial court gave the jury this additional instruction without complying with the requirements of article 36.27 of the Texas Code of Criminal Procedure. That statute provides, in part,
The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981). Appellant did not complain about the additional jury instruction at trial. And we presume the trial court complied with article 36.27 unless the record shows the contrary. See Revell v. State, 885 S.W.2d 206, 212 (Tex.App.-Dallas 1994, pet. ref'd). We also presume appellant had an opportunity to object. See Green v. State, 912 S.W.2d 189, 192 (Tex.Crim.App. 1995). Therefore, by failing to object, appellant has waived his complaint for appeal. Furthermore, the additional instruction on concurrent sentencing was a "proper matter for jury consideration." Haliburton v. State, 578 S.W.2d 726, 729 (Tex.Crim.App. 1979). The court instructed the jury that the sentences would run concurrently "and indeed that is how appellant was sentenced." McGowan v. State, 664 S.W.2d 355, 359 (Tex.Crim.App. 1984). The trial court did not abuse its discretion in correctly answering the jury that appellant's two sentences would run concurrently. See Taylor v. State, 995 S.W.2d 279, 284 (Tex.App.-Texarkana 1999, pet. dism'd). Thus, appellant was not harmed even if the trial court gave the instruction without complying with article 36.27 because the jury was entitled to the information when it requested it. See Haliburton, 578 S.W.2d at 728-29; see also Tex.R.App.P. 44.2(b). We overrule appellant's sole point of error. We affirm the trial court's judgments.