Opinion
NO. 14-18-00162-CR
08-13-2020
Vincent Depaul STREDIC, Appellant v. The STATE of Texas, Appellee
MAJORITY OPINION ON REHEARING
As a society, we accord high deference to the jury system. We respect the jury's role, indeed its duty, to judge the facts, believe or disbelieve witness testimony, and resolve conflicts in the evidence. However, the jury's ability to fulfill its duty cannot be separated from, and indeed depends on, the trial court's duty to properly apply procedural rules to ensure the jury can fairly and impartially deliberate and render a verdict based on the law and the evidence. This evidence is supposed to consist of the testimony that the jury hears and the exhibits that the jury sees. In this case—over appellant's objection—the trial court violated Code of Criminal Procedure article 36.28 by providing the deliberating jury with written excerpts of appellant's trial testimony. In this case, the error affected appellant's substantial rights and cannot be disregarded as a mere procedural irregularity.
The court initially affirmed the trial court's judgment, in which appellant Vincent Depaul Stredic was convicted of murder and sentenced to imprisonment for 30 years. Stredic v. State , No. 14-18-00162-CR, 2019 WL 6320220, at *1–6 (Tex. App.—Houston [14th Dist.] Nov. 26, 2019, no pet. h.); id. at *6–13 (Spain, J., dissenting); see Tex. Penal Code Ann. §§ 12.42(d), 19.02.
Appellant timely filed a motion for rehearing, which only argued the unconstitutionality of section 133.058(a) of the Local Government Code, which authorizes a ten-percent service fee for the collection of the consolidated court cost by counties such as Harris County. See Tex. Loc. Gov't Code Ann. § 133.058 ; Tex. R. App P. 49.1. The State filed a response. See Tex. R. App. P. 49.2. The court denied the motion for rehearing. Appellant also timely filed a motion for en banc reconsideration, which argued the trial court committed reversible error by violating article 36.28 of the Code of Criminal Procedure, as well as the unconstitutionality of the section-133.058(a) service fee for collecting the consolidated court cost. See Tex. R. App P. 49.7. The State again filed a response. The court grants rehearing on its own motion on the article-36.28 issue raised in the motion for en banc reconsideration. See Tex. R. App P. 49.3.
For clarity, we summarize the new holdings. In his first issue, appellant argues that Code of Criminal Procedure article 36.28 does not allow for a written transcript of disputed testimony to be provided to the jury during deliberations. See Tex. Code Crim. Proc. Ann. art. 36.28. Appellant also contends that he was harmed by the trial court's error. We agree.
Statutory construction is a question of law we review de novo. Williams v. State , 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). When interpreting statutory language, we focus on the collective intent or purpose of the legislators who enacted the legislation. Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We construe a statute according to its plain meaning without considering extratextual factors unless the statutory language is ambiguous or imposing the plain meaning would cause an absurd result. See id. at 785–86. Applying the canons of construction to determine the meaning of a statute, we presume that (1) compliance with the constitutions of this state and the United States is intended, (2) the entire statute is intended to be effective, (3) a just and reasonable result is intended, (4) a result feasible of execution is intended, and (5) public interest is favored over any private interest. Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) ; see Code Construction Act, Tex. Gov't Code Ann. § 311.021.
Article 36.28 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; 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. Article 36.28 is not ambiguous, nor does imposing its plain meaning impose an absurd result. Instead, the plain meaning of the statute is clear. The statute only expressly authorizes oral readback of the court reporter's notes concerning the particular disputed testimony, or when there is no reporter or the reporter's notes cannot be read, for the witness to repeat such testimony on the stand. See id. The statute does not authorize the trial court to provide the jury with a written transcript of the court reporter's notes, as was done here. See id. Therefore, we conclude that the trial court violated article 36.28 and clearly abused its discretion by supplying—over appellant's objection—disputed testimony to the deliberating jury in a manner not authorized by statute. See id. ; Thomas v. State , 505 S.W.3d 916, 923 (Tex. Crim. App. 2016).
The parties do not provide, and we have not located, any statute otherwise permitting the trial court to provide a deliberating jury with a written transcript of a witness's testimony. Nor do the parties point us to, and we have not located, any controlling case. Most cases involving article 36.28 concern whether there was sufficient indication the jury disagreed such that the trial court should even have provided readback of witness testimony or whether the trial court properly ascertained the scope of the disputed witness testimony to be provided by readback to the jury. But this case does not present such issues. See infra note 2.
Even assuming without deciding that a violation of the nondiscretionary portion of article 36.28 is purely statutory and not constitutional error, and even assuming without deciding that such an error lends itself to a traditional harm analysis under rule 44.2, we conclude that the error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b) ("Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); Thomas , 505 S.W.3d at 925 (applying rule 44.2(b) ). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) ; see Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). "[A]n error had a substantial and injurious effect or influence if it substantially swayed the jury's judgment." Thomas , 505 S.W.3d at 926. The proper inquiry is "whether the error itself had substantial influence[;] If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos , 328 U.S. at 765, 66 S.Ct. 1239. But if "the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. at 764, 66 S.Ct. 1239.
The discretionary portions of the statute are not at issue because appellant did not object in the trial court and does not challenge on appeal that the jury disagreed as to his testimony or the content of his testimony provided.
The Court of Criminal Appeals has not substantively addressed a violation of the nondiscretionary portion of article 36.28. The court has not yet categorized a litigant's right to only have the jury hear oral readback of the court reporter's notes of disputed witness testimony or disputed testimony repeated "verbatim" by the witness on the stand. In other words, it is not settled under Marin v. State , 851 S.W.2d 275 (Tex. Crim. App. 1993), whether such an error needs to be preserved at trial (as it was here) to be raised on appeal. Nor has the Court of Criminal Appeals considered whether such error is purely statutory or perhaps may have some constitutional dimension that affects whether it should be subject to harmless-error analysis under rule 44.2(a). See Tex. R. App. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.").
Appellant argues that seeing the testimony in written form "may have substantially swayed the jury to believe that [appellant]'s shooting of ... [complainant Christopher Joel] Barriere was intentional or knowing." Appellant contends that "[i]f not for the emphasis on this testimony, the jury may quite possibly have found [appellant] guilty of only manslaughter or criminally negligent homicide."
A person commits murder "if he ... intentionally or knowingly causes the death of an individual [or] intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b). "A person acts intentionally, or with intent, with respect ... to a result of his conduct when it is his conscious objective or desire to ... cause the result." Tex. Penal Code Ann. § 6.03(a). "A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Tex. Penal Code Ann. § 6.03(b).
A person commits manslaughter "if he recklessly causes the death of an individual." Tex. Penal Code Ann. § 19.04(a). "A person acts recklessly, or is reckless, with respect to ... the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that ... the result will occur." Tex. Penal Code Ann. § 6.03(c).
A person commits criminally-negligent homicide "if he causes the death of an individual by criminal negligence." Tex. Penal Code Ann. 19.05(a). "A person acts with criminal negligence, or is criminally negligent, with respect to ... the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that ... the result will occur." Tex. Penal Code Ann. § 6.03(d).
Lesser-included offenses, such as manslaughter and criminally-negligent homicide, are properly submitted to the jury if the record contains some evidence which would permit a jury to rationally find that if the defendant is guilty, he is guilty of only the lesser offense. See Lugo v. State , 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). This is so regardless of whether the evidence is weak, impeached, or contradicted. Bell v. State , 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). A defendant's own testimony, though contradicted, is sufficient to require an instruction on a lesser-included offense. Hunter v. State , 647 S.W.2d 657, 658 (Tex. Crim. App. 1983). In appellant's charge, the jury was provided with both manslaughter and criminally-negligent homicide as lesser-included offenses to murder. The State did not object to the inclusion of manslaughter and criminally-negligent homicide.
Implicit in the definitions of manslaughter and criminally-negligent homicide is the concept that the actor must not have acted intentionally or knowingly; the actor must not have intended the resulting death or been aware that a death was reasonably certain to occur. See Tex. Penal Code Ann. § 6.03(a–b). Accordingly, both offenses are lesser felonies. See Tex. Penal Code Ann. §§ 19.02(c) (murder is first-degree felony), 19.04(b) (manslaughter is second-degree felony), 19.05(b) (criminally-negligent homicide is state jail felony). Having found appellant guilty of murder, the jury assessed his punishment at 30-years imprisonment. If the jury instead had returned a guilty verdict on manslaughter, it may have assessed fewer than thirty years, down to the minimum sentence of 25-years imprisonment for appellant as a habitual felon. See Tex. Penal Code Ann. § 12.42(d) (punishment range for habitual felony offender is 25 to 99 years). More significantly, if the jury had returned a guilty verdict on criminally-negligent homicide instead of on murder or manslaughter, appellant would not have even been subject to punishment as a habitual felon and could not have received 30-years imprisonment. See Tex. Penal Code Ann. §§ 12.35(a) (punishment range for state jail felony is 180 days to two years), 12.42(d) (habitual-felon statute does not apply to state jail felony).
As for the evidence, certainly, there was no real dispute that appellant shot and caused the death of Barriere. Essentially, "the sole issue at trial concerned appellant's intent." See Lugo , 667 S.W.2d at 149. During closing, the State certainly focused the jury on this contested element, stating that it had to prove "what's in [appellant's] mind. Did he intend that this happen?" Defense counsel also informed the jury that appellant's intent was the key element:
So when you deliberate about your independent verdict, if you do not believe the State has proven that Vincent Stredic intentionally caused the death of Christopher Barriere, you have found him not guilty of murder; and you then must decide whether this accident was manslaughter or criminally negligent homicide. And I would submit to you that that's where your focus is going to be during your deliberation.
The State discussed various evidence in its effort to prove appellant's intent, including the surveillance video from the gas station, testimony from Rodrick Harris, and appellant's video statement. In addition, however, the State specifically highlighted appellant's testimony on the stand for the jury, comparing it to what he said and did not say in his video statement and arguing that his trial testimony was concocted:
Basically the testimony that he gave to you on the stand that he's had a year to think about now, he had that opportunity to tell them at that time; but he doesn't. I can tell you exactly why he doesn't. Because at that point he hasn't had a chance to really formulate his story.
Here, appellant's disputed testimony provided to the jury by transcript concerned whether appellant "felt threatened" by Barriere and Harris. The trial court provided approximately four pages of transcript excerpts to the jury. In relevant part, appellant's testimony on direct indicated that Barriere took a couple of steps toward appellant, appellant was afraid, and appellant raised the shotgun "just to scare" and "back [Barriere] up." Appellant's testimony on cross indicated that Harris told appellant "you're not going to leave me here" and charged appellant; appellant was holding the gun but pointed it up in the air, not at Harris. Appellant's testimony on re-direct indicated he was scared when Barriere was coming towards appellant and he thought Barriere could seriously injure or even kill him. Appellant's testimony on re-cross indicated that when the "gun went off the first time," Harris was actually walking away from appellant; appellant was not trying to defend himself with the gun, and it "just accidentally went off." Appellant's testimony on further re-direct indicated he was trying to defend himself by raising the gun and showing it to Barriere and Harris. Ordinarily, the jury is not allowed to rehear or reconsider any testimonial evidence. Cf. Tex. Code Crim. Proc. Ann. art. 36.25. However, as here, the jury may properly ask the trial court for a readback of witness testimony to help it resolve its factual dispute. See Tex. Code Crim. Proc. Ann. art. 36.28 ; Thomas , 505 S.W.3d at 923. There is no question that the jury faced disagreement regarding what appellant's trial testimony revealed about his intent, which is a question of fact. See Smith v. State , 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). There is no question that the jury requested the trial court's help in resolving its dispute. There is also no question that, if the jury was going to return a verdict of guilty, determining appellant's culpable mental state at the time of the shooting was critical to the jury's finding him guilty of murder versus a lesser-included offense of manslaughter or criminally-negligent homicide.
The particular question we face is whether the trial court's answering the jury's disagreement about witness testimony by providing a written transcript that the jury was able to read during deliberations commented on the weight of the evidence and harmed appellant. We acknowledge that we would not be facing this question if the trial court had complied with article 36.28 by providing oral readback of appellant's disputed testimony. But the trial court here violated article 36.28 by sending excerpts of the court reporter's notes back to the jury room and in doing so clearly abused its discretion.
Instead of providing the jury with it once by oral readback in the courtroom, the trial court treated appellant's disputed trial testimony as an admitted written exhibit so that it was available to be passed among the jury in the jury room, and to be read and considered without time or other restraint. See Tex. Code Crim. Proc. Ann. art. 36.25 ("There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case."). Although bringing out the jury and providing it with one-time oral readback of disputed testimonial evidence properly strikes a balance between the trial court's commenting on the weight of the evidence with the need to provide the jury with the means to resolve any factual disputes, Thomas , 505 S.W.3d at 923, we conclude that the provision of excerpts from the court reporter's notes in transcript form concerning an essential element of the alleged offenses to be accessed and considered as written evidence in the jury room, over objection, amounted to an impermissible comment on its importance by the trial court and unfairly tipped that balance in favor of the State (and the highest degree of offense, murder) in appellant's case. See Tex. Code Crim. Proc. Ann. art. 38.05 ("In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case."). This is especially the case when appellant's testimony indicated he could not maintain a consistent story about what happened and what he felt during the incident, i.e. , his culpable mental state. Instead of resolving its disagreement over appellant's testimony based on listening to it being read back orally one time in the courtroom, the jury was able to (re)read and (re)consider his conflicting testimony about what was "in his mind"—in writing, in the jury room, as much as it may have wanted. In appellant's case, when the State expressly attacked and described appellant's trial testimony concerning the sole issue in the case as "formulated," or in other words, a lie, this was not an insignificant error. Additionally, in appellant's case, the jury's determination of this sole issue meant a sentence of 30 years instead of as few as 180 days.
The authority "to the contrary" on which the dissent relies does not control or carry the day in appellant's particular case. None of those cases involved circumstances in which an appellant timely raised a "specific legal objection ... that [providing the disputed testimony in transcript form] is a comment on the weight of the evidence by the Court," like appellant did here. None of those cases involved the particular highlighting of an appellant's own trial testimony—regarding whether he possessed the requisite intent to have committed murder as opposed to a lesser-included offense—at issue here.
Miller v. State involved a bill-of-exception procedure that no longer exists, and there is no discussion of error preservation of any statutory violation. Miller 's discussion of harm consisted of a conclusory determination that the defendants had not met their burden to show "some injury to themselves by said action of the court." 128 Tex.Crim. 129, 79 S.W.2d 328, 330 (Tex. Crim. App. 1935) ; see also Jones v. State , 402 S.W.2d 191, 194 (Tex. Crim. App. 1966) (citing Miller for same). In Higdon v. State , 764 S.W.2d 308, 310 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd), the appellant waived any error in the trial court's article 36.28 procedure at the time the transcript in question was offered to the jury. Moreover, in Higdon , the appellant was not prejudiced when he also "acquiesced" to the trial court's sending his own trial testimony to the jury in transcript form.
We, of course, are not saying that a trial court's provision of disputed trial testimony to the jury in transcript form in violation of article 36.28 could never be harmless.
Without invading the role of the jury, we can never know for sure what influenced this jury in making its verdict, given the almost impenetrable wall surrounding deliberations. See Tex. R. Evid. 606(b). Under these circumstances, based on our review of the whole record, we are not convinced that the trial court's actions did not influence the jury's verdict or only had but very slight effect. See Kotteakos , 328 U.S. at 764, 66 S.Ct. 1239. We "cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." See id. at 765, 66 S.Ct. 1239. Instead, we harbor "grave doubts" that this error substantially influenced the jury's decision to find appellant guilty of murder instead of a lesser-included offense, and we cannot disregard it. See id. Therefore, after granting rehearing on our own motion, we sustain appellant's first issue, reverse the trial court's judgment, and remand the case for further proceedings. See Tex. R. App. P. 43.2(d). Appellant's motion for en banc reconsideration is denied as moot.
The dissent argues that appellant was not harmed because the content of the testimony sent back in transcript form was the same as what would have been read to the jury if the trial court had complied with article 36.28. This position effectively nullifies the legislature's plain, unambiguous intent in passing not only article 36.28, but also article 36.25, regarding the authorized methods available to the trial court to provide evidence to a deliberating jury. The legislature only allows the trial court to provide a deliberating jury with requested admitted exhibits and with readback of disputed testimony.
The dissent further argues that even if a written format emphasized the testimony more than an oral format, appellant was not harmed because testimony from both the State's and his trial court's examination of him was sent back to the jury. While the testimony provided was not one-sided in the sense that it was not just elicited by the State, it was one-sided in that it involved appellant's impeachment of himself as to his culpable mental state during the shooting, which favored the State. The undue emphasis was of evidence clearly detrimental to appellant.
Finally, the dissent asserts there was other evidence to support murderous intent and the State focused on appellant's actions in its closing, so that the trial court's conduct can be disregarded as a procedural irregularity. For the reasons expressed above, we disagree. While the evidence may have been legally sufficient to support a murder conviction, the trial court's improper highlighting of appellant's conflicting trial testimony regarding his culpable mental state while the jury was deliberating that sole issue (without any instruction that the trial court was not in fact emphasizing appellant's testimony to the jury) had more than a slight effect. See Kotteakos , 328 U.S. at 765, 66 S.Ct. 1239 ("The inquiry cannot be merely whether there was enough to support the result....").
In addition to the issue of the unconstitutionality of section 133.058(a) with regard to the consolidated court cost, appellant argued issues that the evidence was insufficient to support the punishment enhancement for burglary of a habitation and the unconstitutionality of the retention by Harris County of a ten-percent service fee also under section 133.058(a) of the jury-reimbursement and indigent-defense fees. Because these issues would not afford appellant any greater relief, we need not reach them. See Tex. R. App. P. 47.1.
( Zimmerer, J., concurring)
( Wise, J., dissenting).
CONCURRING OPINION ON REHEARING
Jerry Zimmerer, Justice, concurring.
I join the new majority in full and write separately to address the effect of the error on appellant's substantial rights that may not be disregarded pursuant to Texas Rule of Appellate Procedure 44.2(b).
It is difficult to imagine how a convicted individual's own words being used against them in a court of law is ever harmful. After all, it is the role of the advocate to call out the inconsistencies of the accused to prove their guilt. But this is not the role of the trial court. The court must ensure impartiality in the proceedings and follow the laws as given. This includes compliance with Article 36.28 of the Code of Criminal Procedure. Because I conclude this error affected appellant's substantial rights, I now join the new majority opinion, and also write separately.
BACKGROUND
This case is back on reconsideration; the facts sufficiently described in the original opinion and again in the new majority and dissent. I shall not repeat them here.
ANALYSIS
The majority and dissent both cite Thomas v. State , which states, "[T]he purpose of Article 36.28 is ‘to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have.’ " 505 S.W.3d 916, 923 (Tex. Crim. App. 2016) (quoting Howell v. State , 175 S.W.3d 786, 790 (Tex. Crim. App. 2005) ).
The dissent suggests, "the trial court did not unduly emphasize the evidence" that "the majority fails to consider the entire record in conducting its harm analysis," and there is no "authority holding that the method of communicating evidence to the jury during deliberations—written transcript rather than oral readback—amount[s] to undue emphasis of the testimony sufficient to undermine the jury's verdict."
Violations of Article 36.28 as Undue Influence
The Court of Criminal Appeals in Garrett v. State addressed the danger of undue influence when a transcript of testimony is allowed to go back with the jury during deliberations. 658 S.W.2d 592, 594 (Tex. Crim. App. 1983). In addressing the difference between a permitted use of a written transcript being reviewed by a jury during trial playback of poor audio recordings, and comparing that to the same transcript going back to the jury during deliberations the court expressed concerns of the "danger" of the jury having the testimony before them during deliberations as both a violation of article 36.28 and the jury being, presumably, "unduly influenced" by it. See id. "Since the transcript was not introduced and not available during jury deliberations, there was no danger of the jury having the evidence before them during deliberations in violation of Art. 36.28, V.A.C.C.P., and thereby being unduly influenced by it." Id.
Transcript as Bolstering
The Court of Criminal Appeals was clear in a similar case in which it considered a written transcript as bolstering of testimony. In Lewis , the court stated, "We do not approve the State's offer of its transcribed version of the taped conversation. After all, the tape itself was simply corroborative of [the witness's] testimony. Technical imperfections in the reproduction of the conversation did not authorize the State to submit its version in written form and thereby make the written transcript available to the jury during its deliberations. Art. 36.25, V.A.C.C.P. This was, in essence, bolstering [the witness's] version of the conversation." Lewis v. State , 529 S.W.2d 533, 535 n.1 (Tex. Crim. App. 1975).
Harm Analysis
As pointed out by the dissent, there remains a question of harm. In a 1935 case, a transcript of appellant's testimony given during the examining trial was permitted to go back to a jury. The Court of Criminal Appeals held, "While the matter may not have been exactly regular, yet no injury is shown to have resulted to the appellant." Miller v. State , 128 Tex.Crim. 129, 79 S.W.2d 328, 330 (Tex. Crim. App. 1935).
"The proper inquiry is ‘whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ " Thomas , 505 S.W.3d at 926 (quoting Kotteakos v. United States , 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ). "On the other hand, if the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. at 926.
In Thomas , the question was between what was read and not read to the jury in response to the jury asking for the transcript. The court did not focus on the variance to determine harm. "[T]he harm analysis should not hinge solely on the lack of contradiction[.]" Id. at 927. Rather "a proper harm analysis requires a review of the entire record, including the weight of the evidence of [the defendant's] guilt, in order to determine whether the trial court's [error] affected the defendant's substantial rights." Id. at 927. "In assessing the likelihood that the jury's decision was adversely affected by the error, the reviewing court should consider all of the testimony and physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and closing arguments." Id. at 927. "If, after a review of the record as a whole, the appellate court can say that it ‘has fair assurance that the error did not influence the jury, or had but a slight effect,’ then the error is harmless." Id. at 927.
CONCLUSION
It is easy for anyone who has ever argued with a close friend or spouse to recall the hurt when one's own words were selectively recalled, yet this is exactly what the trial court did in this case; bolstering selective portions of appellant's testimony sent back during jury deliberation. The specific testimony not only related directly to a variance of appellant's prior testimony, but it appears to be the critical testimony upon which the appellant was convicted of the aggravating factor.
Under the system of analysis described by the Court of Criminal Appeals, I conclude the "weight of the evidence" against appellant was established by this testimony, and that the "nature of the evidence" was the "principle support" of the verdict. Accordingly, this appellate court cannot say that it has "fair assurance the error did not influence the jury, or had but a slight effect." See Thomas , 505 S.W.3d at 926. Taken in conjunction with the fact the trial court acted without due regard for the law, even in light of direct objection, gives great pause for the apparent lack of guiding principles upon which our system of jurisprudence relies. For these reasons I join the majority opinion and concur with the judgment to remand for a new trial.
DISSENTING OPINION ON REHEARING
Ken Wise, Justice, dissenting.
Without question the trial court made a very basic error, but I disagree with the majority's conclusion that the error in this murder case was harmful. Appellant does not contend that the transcript of testimony provided to the jury was erroneous, incomplete, or otherwise improper. The trial court did not unduly emphasize the evidence by simply giving the jury what it asked for. The majority fails to consider the entire record in conducting its harm analysis. For these reasons, I respectfully dissent.
ANALYSIS
"[T]he purpose of Article 36.28 is ‘to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have.’ " Thomas v. State , 505 S.W.3d 916, 923 (Tex. Crim. App. 2016) (quoting Howell v. State , 175 S.W.3d 786, 790 (Tex. Crim. App. 2005) ). "An appellate court should not disturb a trial court judge's decision under Article 36.28 unless a clear abuse of discretion and harm are shown." Id.
Error under Article 36.28 is non-constitutional and subject to a harm analysis under Rule 44.2(b). Id. at 924–25 ; see Tex. R. App. P. 44.2(b). Therefore, we must disregard the error if it does not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Thomas , 505 S.W.3d at 926 (quoting King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) ). Thus, we must ask whether the error itself had a substantial influence on the verdict. See id. A proper harm analysis requires a review of the entire record, including the weight of the evidence of the defendant's guilt. Id. at 927. And, we must consider the character of the error. Id.
Appellant does not contest that Article 36.28 applied or that the jury disagreed about the testimony. Appellant does not contend that the jury required additional or less testimony to resolve its disagreement. Nor does appellant dispute the content or accuracy of the transcripts. Indeed, appellant had "[n]o objection to the content that will be provided in response to the jury's question." Rather, appellant argues that the jury's review of the testimony in written form "may have substantially swayed the jury to believe that Mr. Stredic's shooting of Mr. Barriere was intentional or knowing." Appellant contends, "If not for the emphasis on this testimony, the jury may quite possibly have found Mr. Stredic guilty of only manslaughter or criminally negligent homicide."
Here, it was the jury—not the trial court—that emphasized the importance of the disputed testimony by requesting the court reporter's notes. It was the jury that faced disagreement regarding what appellant's testimony revealed about his intent. Judging the facts, believing or disbelieving witness testimony, and resolving conflicts in the evidence all fall squarely and exclusively within the role of the jury as fact finder. Jackson v. State , 105 S.W.3d 321, 327 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd). Accordingly, the jury properly asked the trial court to help it resolve a factual dispute. See Tex. Code Crim. Proc. art. 36.28 ; Thomas , 505 S.W.3d at 923.
The jury received the same excerpts of appellant's testimony that properly would have been read aloud. The majority cites no authority holding that the method of communicating evidence to the jury during deliberations—written transcript rather than oral readback—amounted to undue emphasis of the testimony sufficient to undermine the jury's verdict. The only Texas authority is to the contrary. See Miller v. State , 128 Tex.Crim. 129, 79 S.W.2d 328, 330 (1935) (regarding predecessor statute, "The mere fact that the court at the request of the jury permitted the [trial] transcript to go into the jury room to be read by the jury themselves would in and of itself not be reversible error, unless the appellants could show some injury to themselves by said action of the court."); Higdon v. State , 764 S.W.2d 308, 310 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (holding that the appellant was not harmed when the trial court sent a particular witness's testimony to the jury in the form of a transcript in light of the fact that the trial court also sent transcripts of other witness testimony to the jury); cf. Jones v. State , 402 S.W.2d 191, 193–94 (Tex. Crim. App. 1966) (noting that the trial court answered the jury's questions about how the witnesses testified in written form rather than reading aloud testimony in open court; reasoning that the court's action was "nothing more than furnishing the jury with certain testimony," that the trial court's memoranda were accurate, and "[w]hile the testimony was not read to the jury in open court, as provided by the statutes, there is no showing of injury to appellant as a result of such failure").
Even if providing the testimony in written form emphasized it more than orally reading it to the jury, the emphasis reached all of appellant's testimony about whether he felt threatened. The transcripts included appellant's testimony as elicited by both his trial counsel and the State. Thus, any emphasis was not one-sided such that the trial court would have been unduly emphasizing the State's evidence. See Higdon , 764 S.W.2d at 310 ("Because the trial court treated testimony both beneficial and adverse to the appellant in a similar manner, we cannot find, as appellant suggests, that the trial court's unorthodox methods [of giving trial transcripts to the jury during deliberations] constituted unfair bolstering of testimony prejudicial to him."). Again, appellant conceded that he had no objection to the content of the transcripts.
Moreover, the transcripts did not comprise all of the evidence from which the jury could have reasonably inferred that appellant's shooting Barriere was intentional or knowing. In addition to testimony from appellant, the jury heard from six State's witnesses, including the officer dispatched to the scene, the assigned crime scene investigator, a forensic multimedia analyst, the assigned homicide detective, the assigned medical examiner, and an eyewitness regarding appellant's words, acts, and conduct before, during, and after his shooting Barriere. The jury also saw surveillance video and still shots from the gas station, an audio recording of the 9-1-1 call, appellant's video statement, and the autopsy report and photographs.
During closing, the State did not unduly highlight appellant's trial testimony regarding his intent. Instead, the State focused on appellant's actions:
So that leaves us with that last element. Did unlawfully, intentionally and knowingly. We talked about during voir dire how we prove intent in a case, and it's not the defendant's sitting there professing exactly what he intended or what he knew was going to happen.
We talked about how you can form—you can infer it from a person's words, their actions, the circumstances surrounding the event. That's the sort of thing that we use to make a determination on what a person's intent is. And I think the defendant's actions in this case, his actions both before, during and after the incident show exactly what he intended on that night.
In sum, the majority does not properly consider the character of the error—a procedural irregularity—in connection with the entire record and other evidence of guilt.
CONCLUSION
After reviewing the record as whole, I am fairly assured that any error from providing the jury with written transcripts—rather than reading the transcripts aloud—did not influence the jury or had but a slight effect in this case, and that appellant's substantial rights were not affected. See Thomas , 505 S.W.3d at 927. Because the majority holds otherwise, I dissent to the majority's reversal of this murder conviction.
SUPPLEMENTAL MAJORITY OPINION ON REHEARING
Charles A. Spain Justice
Motion for Rehearing Granted, Relief Denied, and Supplemental Majority Opinion on Rehearing filed September 29, 2020.
The State filed a motion for rehearing contending this court did not address its arguments that (1) appellant did not preserve error and (2) the Code of Criminal Procedure allows the State to act unless the Code specifically prohibits that action. We grant the motion for rehearing to consider these two issues.
The State first argues that appellant did not preserve his argument that providing the jury with a written transcript of disputed testimony violated Code of Criminal Procedure article 36.28. Appellant made the following statements to the trial court:
The position of the Defense is that it's inappropriate to provide a written transcript of the testimony. We have no objection to a readback of the particular testimony that's been selected by the Court, but we believe that providing a written transcript creates a greater emphasis and places more importance on that particular testimony since the jurors must recall from their own from being in trial what they heard as far as the other issues are concerned.
While appellant does not specifically mention article 36.28, this specific ground is certainly "apparent from the context" of appellant's remarks that he is discussing matters within the article's purview. See Tex. R. App. P. 33.1(a)(1)(A). The State certainly understood at trial, as it responded with a discussion of the scope of article 36.28. While the high court's interpretation of preservation of appellate complaints in criminal proceedings is undeniably stricter than in civil proceedings, Rule 33.1(a)(1)(A)'s "apparent from the context" language still applies.
We overrule the State's first issue that appellant did not preserve his complaint.
The State's second issue is that this court failed to address the following argument raised by the State: "The appellant correctly notes that Article 36.28 does not authorize trial courts to [give] transcripts to jurors. However, neither does Article 36.28 prohibit such a practice. It is silent on the matter entirely." The State effectively argues that any practice not specifically prohibited by the Code of Criminal Procedure must be allowed. The sole case the State cites in support of this argument does not contain any such sweeping statement, nor does it address the Code of Criminal Procedure at all. See Milton v. State , 572 S.W.3d 234 (Tex. Crim. App. 2019).
The State also contends this court cited no case authority for our interpretation of article 36.28. The only potentially relevant authority we have located, discussed at various junctures by both parties, is Garrett v. State. 658 S.W.2d 592 (Tex. Crim. App. 1983). In Garrett , the Court of Criminal Appeals considered whether the use of a written transcript was permissible as an aid to the jury during trial while it listened to a tape-recorded conversation involving appellant. See id. at 593–94. This is a different issue from the one we face here. As Garrett does not present or decide the issue of whether a written transcript of testimony about which the jury disagrees is allowed in the jury room during deliberations under article 36.28, we conclude it does not directly control our disposition. See id. However, we note language in Garrett supports our conclusion that providing a court reporter's transcript of disputed testimony during deliberations violates article 36.28. See id. at 594 ("Since the transcript was not introduced and not available during jury deliberations, there was no danger of the jury having the evidence before them during deliberations in violation of Art. 36.28, V.A.C.C.P., and thereby being unduly influenced by it."); see also Stredic v. State , No. 14-18-00162-CR, 2020 WL 4689854, at *7 (Tex. App.—Houston [14th Dist.] Aug. 13, 2020, no pet. h.) (Zimmerer, J., concurring) (discussing Garrett ).
Even if the State's view of its powers under the Code of Criminal Procedure were correct, it would require an implausible reading of article 36.28 to apply it here. Article 36.28 sets forth the procedure that applies "if the jury disagree as to the statement of any witness." Tex. Code Crim. Proc. Ann. art. 36.28. The statute then provides that, in such circumstances, the jury "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" or, in the absence of such notes, hear from the witness again. Id. While the statute does not spell out all of the potential ways the jury is not allowed to review the testimony of a witness, it is not difficult to connect the dots and conclude that procedures not authorized by the plain language of the article are prohibited. See id. Indeed, adopting the State's theory would render article 36.28 a nullity, a toothless provision merely containing two examples of ways in which testimony possibly might be provided to the jury, as opposed to delineating the only two ways the jury is permitted to receive it. See id. In sum, the State would have us read article 36.28 in such a way as to violate the principal canon of statutory construction: to give effect to the plain meaning of the statute. See Boykin v. State , 818 S.W.2d 782, 786 (Tex. Crim. App. 1991) (describing this interpretive mode as "of ancient origin"). We overrule issue two.
We note that the Code Construction Act does not apply to Code of Criminal Procedure article 36.28. By its terms, the Code Construction Act applies to "each code enacted by the 60th or a subsequent legislature as part of the state's continuing statutory revision program" and "each amendment, repeal, revision, and reenactment of a code or code provision by the 60th or a subsequent legislature." Tex. Gov't Code Ann § 311.002(1), (2). Article 36.28, however, has not been addressed since the 59th Legislature. Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, art. 36.28, [2] 1965 Tex. Gen. Laws 317, 459 (codified at Tex. Code Crim. Proc. Ann. art. 36.28 ). The statutory-construction provision in the Code of Criminal Procedure, article 1.26, does not give any guidance from the legislature applicable to this case: "The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature: The prevention, suppression and punishment of crime." Tex. Code Crim. Proc. Ann. art. 1.26.
Having granted the motion for rehearing and considered and overruled the State's issues, we deny the State's requested relief. The court's previously issued opinions and August 13, 2020 judgment on rehearing remain unchanged.