Andrews v. State

794 S.W.2d 46, 1990 Tex. App. LEXIS 1473, 1990 WL 84581
CourtCourt of Appeals of Texas
DecidedJune 20, 1990
DocketNo. 6-89-038-CR
StatusPublished
Cited by4 cases

This text of 794 S.W.2d 46 (Andrews v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. State, 794 S.W.2d 46, 1990 Tex. App. LEXIS 1473, 1990 WL 84581 (Tex. Ct. App. 1990).

Opinion

OPINION

GRANT, Justice.

James Andrews appeals his murder conviction. He was found guilty by a jury, and his punishment was assessed at sixty years’ confinement in the penitentiary.

Andrews contends that the trial court erred by giving the jury an additional written instruction without reading it in open court in the presence of the defendant and his counsel. He further contends that the trial court erred because this additional instruction coerced the members of the jury to reach a verdict without a full deliberation because the instruction informed them that they would be locked up together for four nights. Andrews also contends that the trial court erred by failing to admit evidence of a prior inconsistent video statement made by a witness and by admitting into evidence without a proper predicate certain photographs introduced by the State. Finally, Andrews contends that the cumulative errors warrant a new trial in the interest of justice.

Lawanda Dowd and Andrews had a stormy marriage marked by incidents of violence. On August 11, 1988, Dowd met Andrews at the Nip n’ Sip Bar in Texar-kana, Arkansas. According to the owner of the bar, they left together. Geraldine McKinney joined them later, and the three of them rode in Andrews’ car to West 6th Street in Texarkana, Texas. There Dowd and Andrews had a short disagreement, and Dowd was killed.

Andrews contends the trial court committed reversible error by submitting the following written communication to the jury:

MEMBERS OF THE JURY:
The law of Texas provides that once the Court’s Charge has been presented to the jury, the jury can no longer separate [48]*48until it has been discharged. Unfortunately, Bowie County does not have acco-modations (sic) for jurors to remain overnight. Since it is now 5:00 o’clock P.M., we must make arrangements for you to stay overnight.
The Bailiff will give each of you a pad upon which you will please list the one you wish to contact and any articles you may want the Sheriff to secure for you at your homes.
Again, unfortunately, I have trials scheduled for tomorrow and we may not be able to resume until Monday. So, in completing your list, please take this into consideration so that the Sheriff can take care of your needs in one trip, if possible.
(Signed)_
Guy Jones, Presiding Judge
202nd Judicial District Court

Article 36.27 of the Texas Code of Criminal Procedure sets up a procedure for a jury to communicate with the court after it has begun deliberations. It also provides that the court shall answer such communications in writing after allowing the defendant or his counsel to make objections to the answer. This article is the only statute dealing with the required method for the trial judge to communicate with the jury during deliberations. It specifically provides that “the written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.” A trial court commits reversible error if it gives an additional instruction to a jury without the provision in the communication being in open court and in the presence of the defendant, as required by Article 36.27. Allaben v. State, 418 S.W.2d 517 (Tex.Crim.App.1967).

In the present case, the communication was not in response to any communication from the jury, and it was not read in open court. However, communication between the court and the jury, although not made in compliance with Article 36.27, which does not amount to an additional instruction by the court on the law or some phase of the case does not constitute reversible error. McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App.1984); Brown v. State, 505 S.W.2d 850 (Tex.Crim.App.1974). A communication concerning an administrative matter, even though the procedure is set by law, does not amount to an additional instruction. See Leger v. State, 688 S.W.2d 130 (Tex.App.-Beaumont 1985, no pet.); Martin v. State, 654 S.W.2d 855 (Tex.App.-Dallas 1983, no pet.); Phillips v. State, 654 S.W.2d 846 (Tex.App.-Dallas 1983, no pet.); Rodriguez v. State, 625 S.W.2d 101 (Tex.App.-San Antonio 1981, pet. ref'd).

Although the type of communication used in the instant case was not a proper method of communicating with the jury, it did not amount to an additional instruction upon the law or some phase of the case and thus does not constitute reversible error.

Next, we must look at the communication to determine if it coerced the jury into reaching a verdict without due deliberation. Article 35.23 of the Code of Criminal Procedure (the version which was in effect at the time of the trial)1 prohibited the jurors from separating until a verdict had been rendered or the jury finally discharged unless the court, with the consent of each party, gave permission. Informing the jurors that they will not be allowed to separate until the jury was discharged was not in itself an erroneous instruction nor was it coercive. The portion of the note indicating that the jury would be held together over a period of four nights and suggesting that there would not be an opportunity to deliberate during that time seems unusually burdensome on the jurors.

Andrews emphasizes the fact that the jury reached a verdict shortly after receiving the communication from the trial judge. However, the jury had not communicated to the judge that they were deadlocked, and thus we. cannot infer that the communication compelled the verdict rather than the verdict having resulted from the jurors’ completing their deliberations. In the case [49]*49of Potter v. State, 481 S.W.2d 101 (Tex.Crim.App.1972), the jury had twice sent out a note stating that they were unable to agree. The trial court instructed the jurors that they would be kept together for such time as necessary to render it improbable that they could reach a verdict. A verdict was returned forty minutes after the instruction was given. The court held that the instruction did not amount to a coercion of the jury. In the present case, viewing the circumstances in their entirety, we do not find that the communication amounted to coercion.2 The point of error is overruled.

Next, Andrews contends that the trial court committed reversible error by allowing photographs of the deceased to be introduced into evidence over Andrews’ objection that “there has not been a proper basis for the introduction of those pictures.” On appeal, Andrews contends that it was not shown that the person testifying had personal knowledge of the contents of the photographs. To preserve an error in the admission of evidence, timely objection must be made at the trial stating the specific ground for the objection, if the specific ground is not apparent from the context. TEX.R.CRIM.EVID.

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Cite This Page — Counsel Stack

Bluebook (online)
794 S.W.2d 46, 1990 Tex. App. LEXIS 1473, 1990 WL 84581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-state-texapp-1990.