Moore v. State, 01-92-00077-CR

• Decision Date: 13 May 1993
• Docket Number: No. 01-92-00077-CR,01-92-00077-CR
• Citation: 856 S.W.2d 502
• Parties: Angela Monique MOORE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 502

856 S.W.2d 502

Angela Monique MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00077-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 13, 1993.

Discretionary Review Granted

Sept. 22, 1993.

Kevin Oncken, Oncken & Oncken, P.C., Houston, for appellant.

John B. Holmes, Jr., Scott A. Durfee, Blair Davis, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and O'CONNOR and WILSON, JJ.

OPINION

WILSON, Justice.

A jury found appellant, Angela Monique Moore, guilty of aggravated assault on a peace officer. The trial court assessed punishment at one-year confinement, probated for one year. We reverse.

State's witnesses testified that on November 20, 1990, Deputy Randy Eng was patrolling the lobby of the Harris County jail. During his patrol, Eng met with Sergeant Walter Preuss, who told him he had earlier escorted appellant off the premises after she created a disturbance. Shortly thereafter, Eng heard appellant using vulgar language inside the lobby of the jail. Eng asked appellant to leave, but appellant refused and continued to use vulgar language. Eng then arrested appellant for disorderly conduct, handcuffed her, and took her from the public area into a restricted hallway.

Appellant struggled with Eng as he attempted to take her to the booking area of the jail. Sergeant Debra Schmidt saw the struggle from her office, and went to assist Eng. Schmidt and Eng each took one of appellant's arms, and escorted her to the booking area. When they arrived, two other deputies took appellant to a holding cell, as Schmidt followed behind them. When they reached the holding cell, appellant placed her feet against the door to the cell and pushed herself backwards onto Schmidt. The two fell to the floor, and Schmidt sustained injuries to her lower back and her arm. The officers then placed appellant inside the holding cell.

Appellant testified she came to the jail with her daughter to visit her brother. She was asked who she was there to visit, and then was told she would not be permitted to see anyone and given five seconds to leave. When she approached the information desk to complain, she was arrested. She denies that she used any vulgarities before she was hit in the jaw by one of the officers. Appellant testified she informed the officers she was eight to twelve weeks pregnant, but they nonetheless assaulted her, causing her to miscarry shortly after the incident.

We find appellant's third point of error dispositive. In that point of error, appellant contends the trial court erred in permitting testimony to be re-read to the jury during its deliberations, without first obtaining certification ¹ from the jury that there was a dispute among them regarding some point within that testimony.

During its deliberations, the jury sent three notes to the judge, asking that certain testimony be read back to them. The first note, filed with the trial court at 10:36 a.m. on January 22, 1992, stated:

We would like to hear read 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.

The judge responded that the testimony would not be available until after 1:00 p.m. Appellant's counsel asked the judge to instruct the jury to certify that there was a dispute among them about a particular point in the testimony. The trial court refused.

The second note, filed with the court at 1:45 p.m., stated:

The jury requests to hear the earlier requested testimony of Officer Ing [sic] and then retire for further deliberations. If the other testimony is needed we will request it.

The judge responded that he was still awaiting the arrival of the court reporter. The final note, filed at 3:15 p.m. stated:

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?

Appellant's counsel again objected to the re-reading of testimony without a certification of a dispute, which was overruled. The court reporter then re-read portions of Eng's direct and cross-examination testimony describing what happened from the point appellant was first taken into custody until she was placed in a holding cell.

Article 36.28 of the Code of Criminal Procedure governs the reading of testimony to the jury during its deliberations. It provides, in part 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.P.ANN. art. 36.28 (Vernon 1981).

"When a jury asks that certain disputed testimony be re-read, the court must first determine if the request is proper under article 36.28[.] If it is proper, the court must then interpret the communication; decide, in its discretion what sections of the testimony will best answer the query, and limit the testimony accordingly." Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App.1980) (emphasis added).

The State contends, and we acknowledge, that article 36.28 does not explicitly state that a jury must "certify in writing" that they are in disagreement. However, this section does require that "the jury disagree as to the statement of any witness" before testimony may be re-read to them. It is the responsibility of the trial court to "determine if the request is proper under article 36.28." Iness, 606 S.W.2d at 314. ²

In the present case, the final note from the jury merely stated that they "could not progress any further" without the re-reading of Officer Eng's testimony. Standing alone, or considered cumulatively with the prior notes, the third note does not indicate either that the jury was in disagreement, or specify a particular matter that was the focus of any disagreement. The State asserts that the jury's disagreement was "implicit" in their requests. ³ We acknowledge that disagreement may be reflected in the third note, but not implicitly so. ⁴ Indeed, the jury's request to hear the testimony "from the point Ms. Moore was taken through the doors from the public area" indicates the jury wanted to rehear Officer Eng's testimony regarding the entire incident, save the initial disturbance in the lobby. The portion of the testimony actually read to the jury consisted of some 11 pages of trial testimony covering a variety of different observations of the witness about the incident.

We hold the trial court abused its discretion in causing trial testimony to be re-read to the jury without compliance with article 36.28. We cannot say that the re-reading of the testimony of Officer Eng did not contribute to appellant's conviction. This testimony, heard for a second time by the jury in the midst of their deliberations, effectively bolstered the State's case against appellant. Therefore, we conclude that this error was not harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2) (Vernon 1992). Appellant's third point of error is sustained. The judgment of the trial court is reversed and we remand to the trial court for a new trial.

DUGGAN, Justice, dissenting on refusal to consider en banc.

I respectfully dissent from the majority's refusal to consider en banc the panel's decision to reverse the judgment of conviction based solely on appellant's point of error three. TEX.R.APP.P. 79(d), (e). I believe the trial court did not abuse its discretion in finding that the jurors implicitly disagreed among themselves as to Deputy Eng's testimony, and were therefore entitled to have the testimony read. It appears from the record, including appellant's brief, that appellant did not dispute the existence of this implicit disagreement. The majority has ignored the narrow procedural complaint appellant actually urged, and has granted reversal on its restatement of a complaint that was not asserted.

Appellant's point of error three literally states:

"The trial court erred in having testimony re-read for the jury during its deliberation without certification from the jury that there was a dispute amongst them as to some point within said testimony."

(Emphasis added.)

A plain reading of appellant's point of error shows that he complains that the trial court refused to require the jury to certify their disagreement among themselves as to some point in the testimony, but instead allowed testimony to be read solely on his finding that they disagreed as to some point.

From the time the court received the deliberating jury's first note, appellant's counsel repeatedly requested the trial judge to require the jury to certify their disagreement about the witness' testimony, a procedure to be done in some court-directed manner not spelled out in TEX.CODE CRIM.P.ANN. art. 36.28 (Vernon 1981). Appellant timely objected to the court's refusals. His appellate complaint understandably sought from us a case law decision directly addressing what was previously stated only in dicta by the Court of Criminal Appeals in Iness v. State, 606 S.W.2d 306 (Tex.Crim.App.1980). In Iness, the court stated:

The court properly instructed [the jury] that they must certify their disagreement and request only that part of a witness' testimony which was in dispute.

606 S.W.2d at 314. The Iness trial court's instruction to the jury to "certify their disagreement" was certainly not error, since nothing in article 36.28 prohibits such a procedure in determining jury disagreement; however, as the majority opinion correctly notes, the statute makes no such requirement. Ironically, the court rejects appellant's contention, but rewrites his point of error to grant relief on a basis he did not urge.

In argument in his brief under point of error three, appellant emphasizes that his complaint is about the court's refusal to require certification of a dispute. He first writes that "[o]n several occasions prior to the...