Willie Arthur Davis v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00699-CR



Willie Arthur Davis, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 18,573, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing less than twenty-eight grams of cocaine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. § 481.115, since amended). The jury assessed punishment at imprisonment for twenty years and a $10,000 fine.

In his only point of error, appellant contends the district court erred by permitting the testimony of a witness to be read back to the jury. The pertinent statute is article 36.28 of the Code of Criminal Procedure, which provides in part: "[I]f 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. Proc. Ann. art. 36.28 (West 1981).

After the jury retired to deliberate appellant's guilt, the court made this statement for the record:

THE COURT: Let the record reflect that present are Counsel and the defendant. The jury is out. They sent a note out that they want Mister, excuse me, Deputy Richloff's testimony read back to them. I sent a written message, signed as part of the record that they need to designate what portion of his testimony there is a dispute about, and then . . . once they put that in writing . . . I will have them brought back in here after Nancy finds that portion that they are interested in and read it back to them. That is what's happening, so as soon as they get that written notice out, we will do that little process.[ ⁽¹⁾]

Later, without further mention of this matter, the jurors were allowed to separate for the night. The following morning, the jury returned to the courtroom and the following proceedings took place:

THE COURT: All right, the Court will come to order. Let the record reflect that all members of the jury are being present in court. Last night the jury requested that Deputy Ted Richloff's testimony be read back to them.

[DEFENSE COUNSEL]: Your Honor, I think that the note that the Court provided earlier is sufficient. I think that, if there is a disagreement on a certain particular piece of the testimony, then I think it should be read and be resolved, however, I think that just reading back the entire testimony of a witness in a case is not warranted. If there is a disagreement, as to what some person said, I think he said this and others think he said that, we can have that portion read back. I would object to the entire testimony being read back.

THE COURT: Mr. Woods, can the jury hone down any more than what the note says, or do you want the entire portion read back?

MR. WOOD: Uh, we would like the entire portion.

THE COURT: All right. The entire testimony of Deputy Richloff.

MR. WOOD: Yes.

THE COURT: Objection noted for the record and overruled.

The testimony of Deputy Ted Richloff, which consumes fourteen pages of the statement of facts, was then read to the jury.

When the jury asks to rehear testimony, the trial court must determine whether the request complies with article 36.28. Innes v. State, 606 S.W.2d 306, 314 (Tex. Crim. App. 1980). A simple request for testimony that does not reflect a disagreement among the jurors does not comply with the statute. Moore v. State, 874 S.W.2d 671, 673-74 (Tex. Crim. App. 1994). The manner by which the trial court determines whether there is a factual dispute among the jurors is left to the court's sound discretion. Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App. 1994). Similarly, the trial court's decision as to which portions of the testimony will best answer the jury's inquiry will not be disturbed on appeal unless a clear abuse of discretion is shown. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994).

Appellant does not contend that no disagreement among the jurors was shown to exist. Rather, appellant urges that the district court erred by having all of Richloff's testimony, not just the disputed portion, read to the jury.

After the jurors asked to rehear Richloff's testimony, the district court instructed them to designate the portion of the witness's testimony about which they had a dispute. Defense counsel stated for the record that he was satisfied with the court's instruction in this regard. Later, upon further inquiry by the court, the foreman of the jury indicated that greater specificity was not possible and again asked to hear all of the witness's testimony. On this record, we cannot say that the court clearly abused its discretion by determining that the jury had a disagreement regarding the content of Richloff's testimony that could be satisfied only by reading that testimony in its entirety.

Even if the court did abuse its discretion, the error was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). The State called three witnesses at the guilt stage. The arresting officer testified that, after stopping appellant for a traffic offense, he found in appellant's possession a plastic container holding what he believed to be rocks of crack cocaine. A chemist testified that the suspect substance was cocaine. Finally, Richloff testified that, based on his training and experience, a person who possesses approximately eighty rocks of crack cocaine, as appellant did, does so with intent to deliver. He also testified to the street value of a rock of crack cocaine.

Richloff's testimony was not cumulative of the other witnesses and was relevant only to prove that appellant possessed the cocaine with intent to deliver, as alleged in the indictment. Despite hearing this testimony twice, the jury convicted appellant of the lesser included offense of simple possession. Thus, we are satisfied that rehearing Richloff's testimony in its entirety did not contribute to the conviction.

The point of error is overruled and the judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed:

Do Not Publish

1. Neither the jury's note nor the court's written reply appear in the record. We find the court's statement adequate to convey the contents of each.