Howell v. State

• Decision Date: 14 September 2005
• Docket Number: No. PD-887-04.,PD-887-04.
• Citation: 175 S.W.3d 786
• Parties: Rachelle L. HOWELL, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

175 S.W.3d 786

Rachelle L. HOWELL, Appellant, v. The STATE of Texas.

No. PD-887-04.

Court of Criminal Appeals of Texas.

September 14, 2005.

Terrence W. Kirk, Austin, for Appellant.

Jeffrey L. Van Horn, First Asst. S.A., Matthew Paul, State's Attorney, Austin, for the State.

OPINION

KEASLER, J., delivered the opinion of the Court joined by KELLER, P.J., and PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ.

During jury deliberations at Rachelle Howell's trial, the jurors requested certain testimony be read to them. The judge asked if the jury was in disagreement, and they replied that one or more of them did not clearly hear the testimony. The judge found that this constituted a dispute under the relevant statute. We conclude that the judge did not abuse his discretion in reaching this conclusion, and the Court of Appeals erred in holding otherwise.

Facts

The State charged Howell with DWI. She pleaded not guilty, and the case went to trial. During deliberations, at about 2:45 p.m., the jury sent out a note saying, "We would like a copy of the police officer's testimony — specifically, whether he believes the defendant was intoxicated at the time of arrest."

The judge sent to the jury the following excerpt from the reporter's record:

Q: What was your conclusion?

A: Based on what I saw on the field sobriety and what I noticed in her eyes, I believed that she was intoxicated to the point where she didn't have normal use of her normal mental or physical faculties at that point.

At 3:40, the jury sent out another note saying, "We are currently deadlocked 3-3 and are making no progress toward resolution. Can the court offer guidance?" The judge responded, "Keep deliberating."

At about 3:45, the jury sent out the following note:

1. We want the record of the police officer's testimony when being questioned by the Prosecutor (not the Defense). Initial and redirect.

2. We want the chart pad summary that the Prosecutor used in closing argument.

At this point, defense counsel pointed out that "there has to be a specific point of disagreement." The judge responded that he "had to answer, `Be more specific.' The following discussion ensued:

THE COURT: That is normally what I respond is be more specific, and then go from there.

DEFENSE COUNSEL: Maybe, be more specific about the point of your dispute.

PROSECUTOR: No, I don't think we can inquire as to their deliberation.

THE COURT: You are right. She is correct. The thing I get from this is they want the whole record.

PROSECUTOR: Right.

THE COURT: I am not going to give them the whole record, so I have got to tie it down by saying, "Be more specific," and two, "Not in evidence." Very simple.

The court responded to the jury's note with "1. Be more specific. 2. Not in evidence."

At 4:00, the judge received another note from the jury saying, "We want the officer's testimony, when being questioned by the Prosecutor, concerning the eye movement test (1st test performed) on the defendant." The following discussion occurred:

DEFENSE COUNSEL: The first one — they have to explicitly, have to have a disagreement as to the testimony of the witness.

THE COURT: All right. I'll go ahead and write, do you have a disagreement as to that testimony. Do you like that response?

PROSECUTOR: I don't want to ask what is it.

DEFENSE COUNSEL: Okay, yeah. I see, I see.

THE COURT: I will ask them if they are in disagreement. If you start looking for —

PROSECUTOR: Judge, is that what they are asking in the first question?

THE COURT: Let me make the response, okay? "Are you in disagreement as to the testimony?"

PROSECUTOR: How about "as to this testimony"?

THE COURT: "Are you in disagreement as to this testimony?" Okay.

The judge sent that question to the jury. The jury responded, "We have an individual (or maybe more) who didn't clearly hear all of the testimony and wants to review it." The parties discussed this response:

DEFENSE COUNSEL: No, actually, I don't believe this — I don't think this is something we can answer under 36.28.

THE COURT: Let me see it again.

PROSECUTOR: Well, in disagreement. It's defined as a disagreement. I don't think they agree on the testimony; some people think it says one thing, and —

THE COURT: I'm sorry, I beg your pardon. I beg your pardon. They have a disagreement. The question was "Are you in disagreement as to this testimony?" "We have an individual (or maybe more) who didn't clearly hear all of the testimony and wants to review it."

DEFENSE COUNSEL: They have a disagreement? They have an individual or maybe more who didn't clearly hear all of the testimony and wants to review it. I don't think that matches 36.28.

After a recess, the following discussion ensued:

THE COURT: Well, all right. Let's see what you came up with in response to the original question, the officer's testimony when being questioned by the prosecutor concerning the eye movement test, first test performed, on the defendant. That is the question.

DEFENSE COUNSEL: I think the rule contemplates a specific disagreement about a specific point. I think the —

THE COURT: Let me read it. "We have an individual (or maybe more) who didn't clearly hear all the testimony and wants" —

I've got to go back, first of all, to the question, okay, because it is in response to my question, on disagreement as to testimony. First of all, I guess we've really got to go back. "We want the record of the police officer's testimony when being questioned by the prosecutor (not the defense)." Okay. And in response I said, "Be more specific," and they come back with this: "We want the officer's testimony when being questioned" — I'm sorry. Isn't it at the bottom of that page?

Yeah, here is the one I just got done reading. And my response, okay — oh, I'm sorry — "Are you in disagreement as to the testimony?"

And this is where they came back with that response. But they were specific in the first question, We want the record of the police officer's testimony when being questioned by the prosecutor. And I said, "Be more specific." So they come down and say, we want the part about the question by the prosecutor, concerning the eye movement, the first, the first test. All right.

The court reporter read back to counsel and the judge a portion of the record. Then:

THE COURT: Now the Court proposes to send back these portions of the record in response to the question.

DEFENSE COUNSEL: I am going to object to providing this information. I don't believe this request for testimony reflects disagreement; and, therefore, I believe it is not a proper request under 36.28. On that basis, I object.

THE COURT: Objection overruled.

The court then sent back the testimony.¹

The jury ultimately returned and found Howell guilty. The judge sentenced her to 180 days in jail, probated for two years, and a $2000 fine.

On Appeal

Howell appealed, arguing in her second point of error that the trial judge erred in allowing testimony to be read back to the jury in the absence of a disagreement. The Court of Appeals agreed,² relying on Moore v. State³ and distinguishing Robison v. State.⁴ The appellate court found the error harmful and reversed Howell's conviction.⁵

We granted the State's petition for discretionary review to decide whether the trial judge abused his discretion by inferring a dispute when, in response to the judge's inquiry about whether a disagreement existed, the jury responded that some members of the jury did not hear the testimony.

Analysis

Article 36.28 provides that "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...."⁶ This statute seeks 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.⁷

When the jury asks that certain testimony be re-read, the judge must first determine if the request is proper under Article 36.28.⁸ A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28.⁹ Instead, the request must reflect that the jurors disagree about a specified part of testimony.¹⁰ The trial judge's conclusion as to whether there is a factual dispute between the jurors is reviewed for an abuse of discretion.¹¹ A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree.¹²

As the Court of Appeals recognized, our leading cases in this area are Moore and Robison. In Moore, the jury sent out a note during deliberations stating that it would like "the testimony of Moore, Ing sic and Schmidt describing what happened from the point where Ms. Moore was taken through the doors from the public area."¹³ The defendant requested that the judge tell the jurors that they must certify there was a dispute among them as to that testimony. The judge denied that request and told the jury that the court reporter had to retrieve her notes so the testimony would not be available until 1:00 p.m.¹⁴ At 1:45 p.m. the jury sent out a second note: "The jury requests to hear the earlier requested testimony of officer Ing sic and then retire for further deliberation. If the other testimony is needed we will request it."¹⁵ The judge told the jury that he was still waiting for the court reporter to return. At 3:15 p.m. the jury sent out a third note: "We cannot progress any further until Officer Ing's sic testimony is read for us. Is the court reporter here so she can read that portion of the testimony?"¹⁶ The court reporter had returned by this time, and the defendant objected to reading any testimony "because the jury has not certified that there is a dispute among themselves."¹⁷ The judge overruled the objection, and the court reporter read portions of the witness's testimony to...