DeGraff v. State

932 S.W.2d 668, 1996 WL 414001

• Court: Court of Appeals of Texas
• Decided: November 20, 1996
• Docket: 14-94-00793-CR
• Status: Published

Opinions

OPINION

AMIDEI, Justice.

Ronald John DeGraff appeals his conviction by a jury for misdemeanor assault. The trial court assessed his punishment at thirty days in the county jail and a $300.00 fine probated for two years. In five points of error appellant claims (1) the trial court abused its discretion in having testimony reread to the jury, and (2) the trial court erred in denying appellant’s motion for mistrial. We reverse and remand.

On February 1, 1994, Patricia Royer and appellant drove their cars to Arnold Junior High in northern Harris County to pick up their respective children. It was dark and appellant pulled out of a side road in front of Ms. Royer and stopped suddenly for a car in front of appellant. Ms. Royer had to swerve to avoid a rear-end collision with appellant. Both appellant and Ms. Royer then drove to Arnold Junior High, parked their cars and walked towards the front of the school. The evidence is conflicting, but indicates an altercation in front of the school between the parties broke up and then started up again inside the school building. Appellant claims that Ms. Royer hit him in the back as he was pushing her away trying to stop her. Ms. Royer testified that she pushed him aside trying to get in the front door and that appellant hit her. Ms. Royer suffered a black eye and some scratches to her chest. Mr. DeGraff suffered a cut on his nose.

During the jury deliberations, the jury presented to the trial court a note, which read as follows:

Did Officer Keener testify that Mr. De-Graff told him that he hit Ms. Royer?

The trial court called the jury back in the courtroom to read Officer Keener’s testimony to them. Appellant objected to the re-reading of Officer Keener’s testimony to the jury and was overruled. In points of error one, two, three and five, appellant complains that reading the testimony back to the jury violated Article 36.28, Texas Code of Criminal Procedure. We agree.

Article 36.28 of the Texas Code of Criminal Procedure provides, in pertinent 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_(emphasis added).

After receiving the note from the jury, the trial court did not inform the jurors that they must be in disagreement before the testimony of a witness could be re-read to them. The trial judge did not attempt to determine if the jury was in actual disagreement over the testimony. The trial judge heard and overruled appellant’s objection to having the testimony re-read and informed the jury, in pertinent part:

Members of the jury, I have received your last note. And the note asks the Court a question about testimony. The law does not allow me to comment on the testimony or to give you my views on what was said or not said. I have taken your note as meaning that you are in disagreement, possibly over some portion of the testimony. Therefore, I have instructed the Court Reporter to review her notes regarding what I feel like is the testimony you are in conflict over. She has reviewed them, and I am going to have her now read back to you certain items of testimony which I am deducing from the note.

The jury must disagree about a specified part of testimony before the statement of a witness may be read to them. Moore v. State, 874 S.W.2d 671, 673 (Tex.Crim.App.1994). The jury must tell the trial judge that it disagrees about a particular portion of testimony before the trial judge can read the testimony to them. Moore, 874 S.W.2d at 673. A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Article 36.28 of the Texas Code of Criminal Procedure. Id. at 673.

In this case, the note from the jury does not indicate any disagreement. It is a simple request for testimony, without more, and it is not an indication of implicit disagreement. The manner in which the trial judge determines whether there is a factual dispute between the jurors is left to his sound discretion. Robison v. State, 888 S.W.2d 473, 480 (Tex.CrimApp.1994), cert. denied, — U.S. —, 115 S.Ct. 2617, 132 L.Ed.2d 859 (1995). In this case, the trial judge made no effort to determine if there was a dispute about the requested testimony. Accordingly, the trial court abused its discretion in reading the testimony of Officer Keener without determining if a disagreement existed. Moore, 874 S.W.2d at 674. To hold otherwise permits speculation in every case as to the possibility of disagreement. Id. at 674. Appellant’s points of error one, two, three and five are sustained.

Having sustained appellant’s points of error one, two, three and five, we find it unnecessary to rule on appellant’s point of error number four.

The judgment of the trial court is reversed and remanded for a new trial.