Williamson v. State, 05-88-00523-CR

• Decision Date: 05 May 1989
• Docket Number: No. 05-88-00523-CR,05-88-00523-CR
• Citation: 771 S.W.2d 601
• Parties: Darryl Jerome WILLIAMSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 601

771 S.W.2d 601

Darryl Jerome WILLIAMSON, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-00523-CR.

Court of Appeals of Texas,

Dallas.

May 5, 1989.

Rehearing Denied June 19, 1989.

Blake Withrow, Dallas, for appellant.

Teresa Tolle, Asst. Dist. Atty., Dallas, for appellee.

Before McCLUNG, BAKER and KINKEADE, JJ.

BAKER, Justice.

A jury convicted Darryl Jerome Williamson of burglary of a building and sentenced him to ten years' confinement and assessed a fine of $250. Because we hold that appellant had ineffective assistance of counsel at trial, we reverse the trial court's judgment and remand the cause for a new trial.

Appellant asserts eight points of error, the first four of which contend that the trial court erred in commenting on the weight of the evidence through an improper written communication with the jury and that the trial court failed to comply with the terms and provisions of articles 36.27 and 36.28 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM.PROC.ANN. arts. 36.27, 36.28 (Vernon 1981).

The evidence showed that around midnight police officers saw appellant and another person carrying a microwave oven down a street. The officers stopped the two and, after some questioning, placed both under arrest for public intoxication. The microwave was removed to the police property room. The officers returned to the area to look for signs of a burglary and located a building which had been entered. The owner of the business verified that property, including a microwave oven, was removed from the building.

While deliberating during the guilt/innocence phase of the trial, the jury sent out a note to the trial judge. This note read, "Was the microwave positively identified as the one taken from the photo lab?" and was signed by the foreman of the jury. The trial court replied to this note as follows:

In reply to your above note you are instructed that the witness Charles Drobena testified that he compared the serial number from his records to the microwave taken by the police and that it was the one removed from his business.

The trial court signed the reply and it was filed in the case.

Appellant argues that the trial court's reply was an improper communication to the jury because the trial court failed to comply with the mandatory provisions of either article 36.27 or 36.28 of the Texas Code of Criminal Procedure. Article 36.27 provides, in pertinent part, that:

Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel [f]or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.

All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.

TEX.CODE CRIM.PROC.ANN. art. 36.27 (Vernon 1981). Article 36.28 of the Texas Code of Criminal Procedure provides 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 1981).

There is nothing transcribed by the court reporter in the record about this jury communication and the court's response. Likewise, there is nothing in the record regarding an express waiver by appellant of the requirement that the trial court's answer to the jury's communication be read in open court. There is also no indication that the defendant or his counsel were afforded the opportunity to object to the court's answer.

Appellant's contention is that not only does the court's action violate the mandatory provisions of the statutes, but that the response made by the trial court constitutes a comment on the weight of the evidence. The giving of additional instructions to a jury by the trial court without compliance with the statutes requiring such communication to be in open court and in the presence of the defendant constitutes reversible error. Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App.1974); see Myles v. State, 170 Tex.Crim. 479, 341 S.W.2d 913, 914 (1960). However, it is incumbent upon a defendant to bring the error to the judge's attention by objection or formal bill of exception or the acts of the trial court are presumed consistent with the statute. Smith, 513 S.W.2d at 829; see Smith v. State, 474 S.W.2d 486, 488 (Tex.Crim.App.1971). There is no showing here by either objection or bill of exception that appellant did not waive the reading of the court's instruction in open court and in his presence. No reversible error is shown. We overrule points one through four.

Despite the foregoing conclusions, we hasten to say that we do not in any way condone or approve of a trial court's failure to follow the statutes, and in our view, it is incumbent upon a trial court to follow what is on its face the simple, clear, and direct mandate of the statute to require the written instruction or answer to a jury's communication to be read in open court in the presence of a defendant or his counsel unless expressly waived by the defendant and to require the court reporter to transcribe such proceedings so that they become a part of the record.

In points five and six appellant contends that the trial court erred: (1) in refusing to give his special requested charge making probable cause to arrest him and seize the microwave a jury issue; and (2) in overruling his timely objection to the failure of the court's charge to include such an instruction as a jury issue. Appellant and his companion were observed by two police officers walking down a street around the hour of midnight, carrying a microwave oven between them. The officers stopped the two and, after finding that both were intoxicated, placed them under arrest and took the microwave to the police property room.

One of the officers testified that the hour, location, and circumstances made her reasonably suspicious. Appellant moved to suppress the microwave as the product of an illegal seizure on the ground that there was no reason for his arrest. The motion was denied. Appellant argues that his objection to the admissibility of the microwave made it clear to the court that the arrest and seizure was a fact issue for the jury. Appellant relies on the provisions of article 38.23 of the Texas Code of Criminal Procedure which provide that evidence obtained in violation of any provision of the constitution or the laws of the state of Texas shall not be admitted into evidence, and, in any criminal case where the evidence raises this issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the article, then the jury shall disregard such evidence. TEX.CODE CRIM.PROC.ANN. art. 38.23(a) (Vernon Supp.1989).

A trial court is required to include a properly worded article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986). The record fails to demonstrate a factual dispute about the seizure of the microwave. No instruction was required and no error is shown. We overrule points five and six.

In his seventh point of error, appellant contends that he received ineffective assistance of counsel at trial. In Texas, a defendant in a criminal case is entitled to reasonably effective assistance of counsel, regardless of whether counsel is appointed or retained. See Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Crim.App.1983). Under the federal standard, a successful claim of ineffective assistance requiring reversal of a conviction has two components. First, a defendant must establish that his counsel's performance was deficient; second, he must show that this deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The required showing of prejudice involves establishing a reasonable probability that, but for counsel's errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. See Moore v. State, 700 S.W.2d 193, 205 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986). Texas constitutional and statutory provisions do not create a standard that is more protective of a defendant's rights than the federal standard. See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).

In applying this standard, the adequacy of counsel's performance is judged by examining the totality of the representation rather than isolated acts or omissions of trial counsel. The test is applied as of the time of trial without the benefits of hindsight. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986). The appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence....