Opinion
No. 05-02-01672-CR.
Opinion Filed February 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F01-56057-T. Affirm.
Before Justices MOSELEY, FITZGERALD, and LANG.
MEMORANDUM OPINION
Kevin Lamone Garden appeals his conviction for capital murder. In a single point of error, Garden charges the trial court erroneously provided trial testimony of two witnesses to the jury during its deliberations. We conclude the dispositive issue in this case is clearly settled in law, and so we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters in detail. We affirm the judgment of the trial court. During deliberations, the jury in this case sent out two notes, requesting testimony of two witnesses. The notes are not included in the record before us; it appears one note was read into the record verbatim while the other was summarized by the trial judge. The trial court provided the testimony to the jury over defense objections that the notes did not establish that the jurors were in dispute as to the statements of the two witnesses. The record does not indicate what testimony was given to the jury in response to the requests. The code of criminal procedure provides: In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. Tex. Code Crim. Proc. Ann. art. 3.28 (Vernon 1981) (emphasis added). Based on this provision, defense counsel objected that there had been no demonstration that the jurors were in disagreement regarding the specific party or witness's testimony. The trial judge opined that he "wouldn't have the question unless they were in dispute about something." Trial counsel then followed up his objection with a request that the court explain to the jury that the law required jurors to be in dispute before the court could make testimony available to them. This exchange took place after the trial court and court reporter had spent considerable time putting together a response to the jurors' questions. The trial court responded: Then I take issue with the lawyers, why did you not make the objection two hours ago so the jury could refocus their issues? Why does it take you two hours to dream up the objections? Why can't we answer them and get it back to them? We understand and sympathize with the trial court's frustration. However, notwithstanding the lateness of counsel's request, we conclude the trial court is required to determine whether a disagreement exists before providing testimony to deliberating jurors. Moore v. State, 874 S.W.2d 671, 674 (Tex.Crim. App. 1994) (trial court abused its discretion in reading testimony without determining if disagreement existed). "[A] simple request for testimony does not by itself reflect disagreement, implicit or explicit, and is not a proper request under Article 36.28." DeGraff v. State, 962 S.W.2d 596, 598 (Tex.Crim. App. 1998). Nothing in the record before us indicates the notes in this case identified any disagreement concerning the statements of the two witnesses at issue. Accordingly, it was error for the trial court to provide the testimony to the jurors without determining if a disagreement existed. However, we are required to conduct a harm analysis concerning this error. See DeGraff v. State, 934 S.W.2d 687, 688 (Tex.Crim. App. 1996) (court of appeals erred by summarily reversing under article 36.28 without conducting harm analysis). In that analysis, we disregard any error unless it affects Garden's substantial rights. See Woodward v. State, 996 S.W.2d 925, 929 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (error under article 36.28 is not constitutional error); see also Tex.R.App.P. 44.2(b). We conclude Garden cannot make a showing that his substantial rights were violated in this case. The record does not disclose what testimony was provided to the jury in response to its notes. Accordingly, we cannot adjudge the harmfulness of any emphasis of that testimony; nothing is presented for our review. See Marras v. State, 741 S.W.2d 395, 406 (Tex.Crim.App. 1987), overruled in part on other grounds, Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App. 1993); see also Everage v. State, 848 S.W.2d 357, 359 (Tex. App.-Austin 1993, no pet.). We overrule Garden's point of error and affirm the judgment of the trial court.
The notes also requested certain affidavits and a number of exhibits. The trial court properly provided the exhibits to the jury, but told jurors the affidavits were not in evidence. See Tex. Code Crim. P. art. 36.25 ("There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.").
The State incorrectly argues that Garden failed to preserve error because he did not properly join his co-defendant's objection on this point. The trial court made clear early in the trial that each objection by one defendant would be automatically attributed to the other defendant as well. Moreover, at the conclusion of the argument before the court on this issue, the court specifically stated to Garden's co-defendant's counsel: "Your objections are so noted for both defendants."