Moore v. State

• Decision Date: 23 March 1994
• Docket Number: No. 746-93,746-93
• Citation: 874 S.W.2d 671
• Parties: Angela Monique MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 671

874 S.W.2d 671

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

No. 746-93.

Court of Criminal Appeals of Texas.

March 23, 1994.

J. Kevin Oncken, Austin, for appellant.

John B. Holmes, Jr., Dist. Atty., and Scott A. Durfee, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

A jury found Appellant guilty of aggravated assault. The trial court assessed punishment at confinement for one year, probated. The Court of Appeals reversed the conviction after finding the trial court had violated Article 36.28, V.A.C.C.P., ¹ and finding the error was not harmless under Tex.R.App.Pro. 81(b)(2). Moore v. State, 856 S.W.2d 502 (Tex.App.--Houston [1st] 1993). We granted the State's petition for discretionary review to decide whether the Court of Appeals erred by holding the trial court abused its discretion under Art. 36.28 by having testimony read to the jury without determining that the jury disagreed about some part of that testimony.

Appellant was tried for assaulting a peace officer at the Harris County Jail. Deputy Randy Eng and Sergeant Debra Schmidt, members of the Harris County Sheriff's Department, testified regarding Appellant's assault on Schmidt. Appellant also testified.

During its deliberations the jury sent out a note stating, "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." Appellant requested that the trial court inform the jurors they must certify there was a dispute among them as to a particular point in the testimony. The court denied the request and informed the jury that the court reporter had to retrieve her notes so the testimony would not be available until 1:00 p.m. At 1:45 p.m. the jury sent out another 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." The judge informed the jury that he was still waiting for the court reporter to return. At 3:15 p.m. the jury sent out the following 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?" The court reporter had returned by this time and Appellant objected to reading any testimony "because the jury has not certified that there is a dispute among themselves--". The trial court overruled the objection and the court reporter read portions of Eng's testimony to the jury.

The Court of Appeals held that under Art. 36.28 the jury must disagree as to the statement of any witness before testimony may be read, although such disagreement need not be certified in writing. The court stated that the last note from the jury, considered by itself or in conjunction with the prior notes, did not indicate the jury was in disagreement or specify a particular matter that was the focus of disagreement. In response to the State's claim that the last note reflected implicit disagreement, the Court of Appeals stated that the note may have indicated the jury decided Eng's testimony was most important and the jury simply wanted to hear Eng's testimony about the entire incident except the initial disturbance in the lobby. If this was the reason, the request and reading would not be proper under Art. 36.28. We agree with the holding of the Court of Appeals.

The State contends the instant case conflicts with Flores v. State, 827 S.W.2d 529 (Tex.App.--Austin 1992, no pet.), and argues that the Court of Appeals' interpretation of the language of Art. 36.28 is too narrow. Finally, the State claims, as urged in the dissenting opinion, that implicit disagreement was shown.

In Flores the jury sent a note to the court requesting a transcript of testimony of a named witness about a particular topic. The defendant requested that the court answer the note by informing the jury that the testimony would be read if it reported a disagreement about the testimony. The trial court refused to so inform the jury, stating, " 'You know they disagree or they wouldn't ask.' " Flores, supra at 530. The Austin Court of Appeals found no error, holding that the jury's request reflected implicit disagreement and was not contrary to Art. 36.28.

We agree with the State that Flores is indistinguishable. However, we also believe it was wrongly decided under the language of Art. 36.28 and established case law, as our analysis will show.

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...." (emphasis added). The statute is clear. The jury must disagree about a specified part of testimony before the statement of a witness may be read to them. This disagreement must be made known to the trial judge by the jury so that it is proper to read the testimony and so that the judge will know what testimony is in dispute. That is how a trial court determines a request is proper. See Iness v. State, 606 S.W.2d 306, 314 (Tex.Cr.App.1980). A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28. Jones v. State, 706 S.W.2d 664, 667 (Tex.Cr.App.1986); Iness, supra at 314; Brooks v. State, 499 S.W.2d 99, 101 (Tex.Cr.App.1973) (trial court properly denied jury foreman's request to hear testimony already reproduced once because request did not show jury was still in dispute); Swindell v. State, 491 S.W.2d 400, 401 (Tex.Cr.App.1973) (trial court properly refused jury's request for all of the testimony of two witnesses unless the jury specified what portions of the testimony, if any, were in dispute); Thrash v. State, 482 S.W.2d 213, 214 (Tex.Cr.App.1972) (trial court properly responded to a request for testimony of a defense witness in terms of Art. 36.28, which provides for repetition of testimony on points of disagreement); Cherry v. State, 447...