No. 06-06-00094-CR
Date Submitted: January 24, 2007.
Date Decided: March 6, 2007. DO NOT PUBLISH.
On Appeal from the 4th Judicial District Court Rusk County, Texas Trial Court No. CR04-113.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Memorandum Opinion by Justice, MOSELEY
After having been found guilty by a jury for possession of a controlled substance in the amount of one gram or more but less than four grams, Michael Lynn Keith appeals. The jury assessed his punishment at fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Keith argues three points of error: (1) that the trial court erred in allowing testimony concerning an extraneous offense, (2) that the trial court committed error in permitting testimony to be read back to the jury without having affirmatively determined that the jury disagreed as to its content, and (3) that there was legally insufficient evidence to sustain the conviction.
Evidence of Extraneous Offense
The complaint regarding the extraneous offense concerns the testimony of Officer Chad Taylor. Officer Taylor testified that, after he and other law enforcement officers entered the residence in which Keith and Debbie Smith were then located, they found particular kinds of glassware, a blowtorch, miscellaneous chemical compounds, and other paraphernalia, which are commonly used in the manufacture of methamphetamine. The offense for which Keith was charged involved a different vial of methamphetamine which he kept in a lunch kit (not those in close proximity to or otherwise associated with the manufacturing paraphernalia), and Keith was not charged with the manufacture of these drugs. Keith maintains that admission of testimony concerning such items and a discussion of their potential use in the manufacture of illegal substances was the injection of evidence of an extraneous offense solely for the purpose of inflaming the jury and that the admission of such testimony was error. He further urges the point that if the State intended to introduce evidence of an extraneous offense, it was required pursuant to Texas Rule of Evidence 404(b) to give reasonable notice of such intention before trial. See Tex. R. Evid. 404(b). At trial, the only objection lodged was to the introduction of the evidence pertaining to the photographs taken of the drug-manufacturing equipment, this objection being pursuant to the "best evidence" rule (Tex. R. Evid. 1002, 1003). No objection was lodged pertaining to the supposed inflammatory nature of the extraneous offenses being injected into the trial or to the fact that no prior reasonable notice was given to Keith of the intention of the State to introduce such evidence. To preserve error for appellate review: (1) a party must make a timely, specific objection; (2) the objection must be made at the earliest possible opportunity; (3) the complaining party must obtain an adverse ruling from the trial court; and (4) the issue on appeal must correspond to the objection made at trial. See Tex. R. App. P. 33.1(a); Griggs v. State, No. PD-0727-25, 2007 Tex. Crim. App. LEXIS 99 (Tex.Crim.App. Jan. 31, 2007). The objection under the best evidence rule to the admission of photographs of the drug-manufacturing equipment was neither sufficient to raise the issue of the admission of evidence of extraneous offenses nor sufficient to raise the issue of the State's failure to provide reasonable notice before trial of such proposed evidence. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known. Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App. 1994) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992)). The objection to the introduction of this evidence on appeal does not conform to the objection raised at trial. The failure to properly object at trial to the introduction of evidence constitutes a waiver of error concerning its admission. Lankston, 827 S.W.2d 907. There is no reversible error in permitting the introduction of this evidence. Permitting Testimony to be Read to the Jury
Texas has long taken the position that juries should, if at all possible, hear the evidence from the witness stand in the context of trials; to accomplish this, it discourages a rehash of testimony after the jury has begun its deliberations. Even over 130 years ago, Texas rules restricted juries' ability to have testimony repeated or read to them only when the jury members disagree. Campbell v. State, 42 Tex. 591 (Tex. 1874). The current version of this restriction (remarkably similar to that of so long ago) is Article 36.28 of the Texas Code of Criminal Procedure, which states that: 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; but if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial. Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006). In Keith's trial, the jury sent three requests to the court to have portions of the testimony read to it. The first such request was a note which simply said, "Transcript of Michael Keith Testimony. Thank you[,] Gloria Billingsley." The court responded with a supplemental charge which informed the jury, in part, that, "The Court under the law is not allowed to provide you with a transcript. The court reporter may read portions of testimony to you if you disagree about a specific statement made by a specific witness. You must designate such statement, if any, and such witness, if any." Before the submission of this supplemental charge, it was provided to all counsel and a request by the court to counsel for objections to it were made on the record. Both sides announced that they had no objection to the response as contained in the supplemental charge and it was returned to the jury room without bringing the jury into the courtroom and reading it to them, this action also being after each side acknowledged that they had no objection to this procedure. This supplemental charge to the jury was then followed by the second note signed by Gloria Billingsley, the body of which said, "Keith's Testimony on when the Task Force entered the house. for crediability [sic]." There was no statement in the note that the jury was in disagreement. After receipt of this note, the court had the jury return to the courtroom and the court reporter read the jurors a portion of Keith's testimony. The third note stated, "We need the part of Mr. Keith's testimony of when he was hand cuffed, after the Task force arrived." This was also signed by Gloria Billingsley. The court then told Keith and the State what parts of the reporter's record it believed should be read to the jury in response to this request, asking if counsel had objections to that portion of the record being read. Both responded in the negative, evidencing no objections. "Under Article 36.28, the jurors must disagree as to the testimony of a witness before the testimony may be read back to them. However, 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) (quoting Robison v. State, 888 S.W.2d 473, 480 (Tex.Crim.App. 1994); Moore v. State, 874 S.W.2d 671 (Tex.Crim.App. 1994)). In other words, it is disagreement among the jurors as to the content of testimony which is the genesis of its ability to rehear the testimony — not simply to refresh the jurors' memories, emphasize the testimony's importance, or any other reason. The real question here is the extent to which the trial court must go to determine whether the requisite disagreement exists between the jurors before the court can allow testimony to be read to them. The court had responded to the first request with the supplemental instruction to the jury explaining the limitations on the jury being able to have testimony read to it. The jury responded by a second written message which particularized the portion of a particular witness's testimony it wanted to hear; it, however, did not specifically inform the court that it was in disagreement. In the third note, the jury likewise specified the portion of Keith's testimony which it wanted to have repeated by the court reporter, but again made no precise mention of disagreement among the jurors about the content of that testimony. A trial court's decision to read back testimony from the court reporter's notes is reviewed for abuse of discretion. Robison, 888 S.W.2d at 481. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Randon v. State, 107 S.W.3d 646, 648 (Tex.App.-Texarkana 2003, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g)). In like fashion, the manner in which the trial court determines whether there is a factual dispute between the jurors is left to the court's sound discretion. Wingo v. State, 143 S.W.3d 178 (Tex.App.-San Antonio 2004), aff'd, 189 S.W.3d 270 (Tex.Crim.App. 2006). We think the supplemental charge provided by the trial court to the jury succinctly and accurately informed the jury of the circumstances under which it could receive a reiteration of a part of the testimony; each of the two subsequent notes sent by the jury which requested a reading of excerpts from Keith's testimony were made with the full awareness of the jury that the testimony could not be read for it unless there was disagreement among the jurors. The clearest message for the jury to have sent would have included a phrase to the effect that the jurors disagreed; however, after having not received the results the jury requested after the first note and then (after having received clear instructions from the court) crafting its request more particularly, one can infer that the jury's motive was to settle a disagreement as to what had been said. It was not necessary for the court to have repeatedly charged the jury with redundant instructions with each request. We find that the jury made a request for reiterations of the testimony based on its disagreement and that the court acted properly in having the reporter read the testimony to the jury. Even if the court had not acted properly in causing portions of the testimony to be read back to the jury, complaints about error in the reading of trial testimony must be preserved by objection at the time of the reading. Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App. 1991); May v. State, 139 S.W.3d 93, 99 (Tex.App.-Texarkana 2004, pet. ref'd); Randon, 107 S.W.3d at 649. There was no timely objection; thus, we may not address this issue on its merits. The contention is overruled. Legal Sufficiency
Keith complains that the evidence was insufficient to convict him of the crime of which he was found guilty. He admits that he possessed a vial which he indicated contained less than a quarter of a gram of methamphetamine, but that he did not have as much as a gram. He further avers that the vial of methamphetamine which the law enforcement officers had said was in his possession was different from the vial which he actually owned. Contrarily, Officer Taylor testified that he found the lunch kit containing the vial of methamphetamine in the bedroom after having been told by Keith that Keith had methamphetamine in a lunch kit. Taylor further testified that the vial introduced into evidence was the vial found in that lunch kit. Officer Taylor stated that he had sealed the evidence in an envelope and turned it over to Officer David Salazar, who initialed it and transported it to the Department of Public Safety (DPS) laboratory for testing, where its receipt was noted on the evidence envelope. Lynette Jonas, a supervising forensic chemist with the DPS laboratory, testified that the contents of the vial had been measured and that it contained 1.26 grams of methamphetamine. After having conducted testing and measuring, the laboratory returned the evidence to its envelope, initialed the envelope, and returned it to Officer Taylor, who then produced it for entry into evidence at the time of trial. Thus, a direct chain of custody was preserved and established at trial. In opposition to this, Keith introduced a different vial (apparently smaller, designed to hold only one gram) than that which was introduced by the State, saying that the vial that he actually owned was the size of the one he introduced; his contention was that the vial containing methamphetamine which the State had introduced was different from and larger than the one which he had in his possession that night. He maintained that although he was admittedly in possession of methamphetamine, it was less than one gram and, therefore, he was guilty of a lesser crime than that with which he was charged. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Obviously, the story of Keith and the evidence provided by the State's witnesses cannot both be correct. The jury was provided enough evidence from both to believe either, but the jury could not believe both. The jury chose to believe the witnesses for the State, and there was legally sufficient evidence on which the jury could rest its verdict. We find that there was sufficient evidence for the jury to convict Keith of the crime with which he was charged. No reversible error has been shown; we affirm the judgment.