Opinion
No. 04-07-00608-CR
Delivered and Filed: June 4, 2008. DO NOT PUBLISH
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2007-CR-4616, Honorable Mary Roman, Judge Presiding. AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Jeff Diehl, also known as Jeffrey Diehl, appeals his conviction for felony driving while intoxicated, complaining that the trial court failed to comply with the procedural requirements of Article 36.27 of the Texas Code of Criminal Procedure when it responded to a note from the jury, and that the court's response amounted to an erroneous supplemental instruction. Finding no error, we affirm the judgment of the trial court.
Analysis
The facts relevant to this appeal are relatively straight-forward. According to the trial court's criminal docket sheet, the jury began deliberating as to Diehl's guilt or innocence at 11:50 a.m. The clerk's record indicates that at 3:43 p.m., the jury sent a note to the trial court which asked two questions:Why was the police report not admitted as evidence?
What determines a unanimous verdict?
-Is it a verbal 12-0 vote[?]
-Can it be a secret ballet [sic] w/aggrement [sic] that the outcome will be the final verdict?The trial court's reply, which is included in the clerk's record, but not time-stamped, read:
SUPPLEMENTAL CHARGE NO. 1
MEMBERS OF THE JURY:In regards to your questions:
1. With reference to the police report, please refer to the Court's Charge, page 6, first paragraph.
2. All 12 jurors must agree that: The defendant is not guilty OR guilty.The foreperson must sign the appropriate verdict form. Please continue your deliberations.
At 4:28 p.m., the jury returned a guilty verdict, as reflected by the docket sheet. The reporter's record contains no reference to the jury's questions or the trial court's response to the jury note, and is silent on whether Diehl was aware of, and present for, these communications. Nothing in the record reflects that Diehl objected to the trial court's answers to the jury's questions. The reporter's record does reflect that after the jury left the courtroom to deliberate, and before the jury's note, the trial court stated to the parties, "If you leave the courthouse, let these deputies know where you are just in case the jury has a question."
For the first time, Diehl claims on appeal that the trial court failed to comply with the mandates of Article 36.27 by (1) not reading the jury's note and the trial court's response in open court in the presence of the defendant and giving him an opportunity to object or except to the content of the court's answer to the jury's questions, and (2) failing to have the proceedings recorded by the court reporter. Article 36.27 contains specific requirements regarding the procedure to be followed in answering jury questions. It reads:
When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. 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 2006). The requirements of Article 36.27 are mandatory and a violation of the statute constitutes reversible error. See Edwards v. State, 558 S.W.2d 452, 454 (Tex.Crim.App. 1977); Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App. 1974). However, as Diehl acknowledges, to preserve error the appellant is required to object to the trial court's failure to comply with Article 36.27. See Word v. State, 206 S.W.3d 646, 651-52 (Tex.Crim.App. 2006) (holding that absent an affirmative indication in the record establishing that defendant raised Article 36.27 violation at trial, the objection is procedurally barred). Even when the record is silent as to whether the appellant was aware of the communication between the trial court and the jury, as it is here, in the absence of an objection on the record, we must presume that the proceedings were regular and that the appellant received the proper protections afforded by Article 36.27. Id.; Green v. State, 912 S.W.2d 189, 192-93 (Tex.Crim.App. 1995) (where record is silent as to whether defendant was notified of jury communication, appellate court presumes trial court's response was in open court and in defendant's presence, and presumes defendant agreed to trial court's response). The record here does not demonstrate that Diehl objected to the trial court's answers to the jury questions; therefore, he failed to preserve error. Diehl also argues that Article 36.27 was violated because the court reporter failed to transcribe the proceedings as required by the second paragraph of Article 36.27. Tex. Code Crim. Proc. Ann. art. 36.27 ("All such proceedings in felony cases shall be a part of the record and recorded by the court reporter."). He maintains that the complete absence of a reference to the jury note or the trial court's response within the reporter's record establishes that the proceedings in his trial did not comply with Article 36.27. Again, we note that an objection to the failure to record the proceeding is required to preserve error on appeal. Word, 206 S.W.3d at 652. Diehl urges us to distinguish Word from the present situation because this is a felony case. See id. (rejecting appellant's ground for review in part because "the second paragraph of Article 36.27 applies only to felony cases and this is a misdemeanor case"). The Word court, however, first and foremost based its rejection of the appellant's complaint that the proceeding was not recorded on the fact that the appellant had not preserved error with a timely objection. See id. Thus, we are not persuaded that Word is inapplicable to the instant case. Because the record does not contain any objection by Diehl to the trial court's response to the jury note, or to the court reporter's failure to transcribe the proceeding, we hold that Diehl has procedurally defaulted any claimed violation of Article 36.27. Next, Diehl argues that the trial court erred when, in response to the jury's question asking "what determines a unanimous verdict," it defined unanimity in a way that indicated the jurors must reach a verdict, and instructed them to do so. Diehl states that the trial court's instruction misinformed the jurors that all twelve of them "must agree" either that he was not guilty, or all twelve of them "must agree" that he was guilty. Diehl suggests that although the instruction was "technically correct," it was legally erroneous because it told the jurors they were required to reach a unanimous verdict and there is no such legal requirement. See Griffith v. State, 686 S.W.2d 331, 333 (Tex.App.-Houston [1st Dist.] 1985, order) ("Texas jurors swear to render a true verdict, not a unanimous verdict.") (citing Tex. Code Crim. Proc. Ann. art. 35.22 (Vernon 2006) (juror's oath)). Diehl further maintains that the jury was not limited to only the two outcomes given by the trial court because, had the jury deliberated to a point where the trial court felt the jury could not reach a verdict, the trial court could have, sua sponte if necessary, declared a mistrial. See Tex. Code Crim. Proc. Ann. art. 37.07 § 2(a) (Vernon Supp. 2007) (" . . . If the jury fails to agree on the issue of guilt or innocence, the judge shall declare a mistrial and discharge the jury . . ."). We disagree that the trial court's supplemental instruction was either erroneous, coercive, or misleading. The trial court was not required to give the jury a third option of failing to reach a verdict. See Soria v. State, 933 S.W.2d 46, 66 (Tex.Crim.App. 1996) (holding trial court did not abuse its discretion in failing to inform jury that it is an option for them to fail to agree in answering special issues). "Nonagreement" or "abstention" is not a statutorily recognized option for the jury to select; rather, it is merely a consequence of the jury's inability to exercise its available options by reaching a verdict. See Draughon v. State, 831 S.W.2d 331, 337-38 (Tex.Crim.App. 1992); Broussard v. State, 163 S.W.3d 312, 316-17 (Tex.App.-Beaumont 2005, no pet.) (rejecting appellant's argument that trial court's instructions erroneously "presupposed" that the jury would reach a unanimous verdict). "There is no option for the jury not to reach a verdict. While that may be an eventuality, it isn't a course for the jury to choose." Moreno v. State, 858 S.W.2d 453, 460 (Tex.Crim.App. 1993) (citing Draughon, 831 S.W.2d at 337). Thus, the trial court's response to the jury's question was legally correct because the jury is required to reach a unanimous verdict in a felony case. Stuhler v. State, 218 S.W.3d 706, 716 (Tex.Crim.App. 2007) (citing Tex. Const., art. V, § 13); Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2007). Nor do we conclude that the supplemental instruction was coercive or misleading, as the instruction did not prohibit jurors from voting as their conscience dictated. Accordingly, we hold the trial court did not err in giving the supplemental instruction. Based on the foregoing reasons, the judgment of the trial court is affirmed.