Opinion
No. 05-08-00940-CR
Opinion Filed April 20, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA07-15006-L.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE. Opinion By Justice FILLMORE.
OPINION ON MOTION FOR REHEARING
We deny appellant Gary Martin Vodicka's motion for rehearing. On our own motion, we withdraw our opinion of January 14, 2010 and vacate our judgment of that date. This is now the opinion of the court. A jury convicted appellant of misdemeanor assault. The trial court made an affirmative finding of family violence, sentenced appellant to 300 days' confinement in the Dallas County Jail, probated for twenty-four months, and assessed a $1900 fine. In one issue, appellant argues the trial court erred by giving the jury a supplemental instruction during deliberations. We affirm the trial court's judgment.
Background
Appellant was charged by information with causing bodily injury to his ex-wife, Julie Vodicka, by grabbing her arm and wrist with his hand and by forcing her to and against a wall with his hand. After both sides rested, the trial court charged the jury:[I]f you believe from the evidence beyond a reasonable doubt, that the defendant, GARY VODICKA, on or about the 1st day of May, 2007, in the County of Dallas and State of Texas, as alleged in the Information, did unlawfully then and there, intentionally or knowingly, or recklessly cause bodily injury to another, namely: JULIE VODICKA, hereinafter called complainant, by grabbing complainant's arm and wrist with defendant's hand and by forcing complainant to and against a wall with defendant's hand, then you will find the defendant, GARY VODICKA, guilty as charged in the Information. . . .(emphasis added). While the jury was deliberating, it sent a note to the court asking, "Do we have to find that he [appellant] grabbed her [complainant's] wrist and forced complainant against a wall,or is just grabbing the wrist sufficient?" The trial court held a discussion in open court with the prosecutor and defense counsel and stated:
The Court having read the question, and having reviewed Code of Criminal Procedure 36.1.6 [sic] is interpreting this as a question about the Charge. After reviewing the Charge, we notice that in the application paragraphs, the Court did not change the words [sic] to the hands [sic], in the particular application paragraphs, and the Court has drafted a supplemental Charge, when in effect, its just really a one-page correction to the application Charge, which does include what the Court believes to be the corrected language of or(s), instead of and(s).
The Court is just going to submit this one page back to the jury, and it will be included as a part of the Charge, once the jury has reached a verdict, assuming that they do reach a verdict.
Defense counsel objected that argument had concluded, there had been no improper argument by counsel, and the jury had not "requested a supplemental Charge or additional Charge, as construed by or meant by Article 36.16." The trial court overruled the objection and delivered the supplemental charge, which instructed the jurors that they could convict appellant if they found, beyond a reasonable doubt, that appellant grabbed the complainant's arm or wrist with his hand or forced the complainant to and against a wall with his hand. The jury convicted appellant of misdemeanor assault, and this appeal ensued.
Discussion
In his sole issue, appellant contends the trial court's supplemental instruction to the jury violated article 36.16 of the Texas Code of Criminal Procedure. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009); see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006) ("Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial."). If error exists and if the defendant objected to the error at trial, we must reverse if there is some harm to the defendant from the error. Sakal, 287 S.W.3d at 25-26; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If, however, the defendant did not object to the error at trial, we reverse only if the error is so egregious and created such harm that the defendant was denied a fair and impartial trial. Sakil, 287 S.W.3d. at 26; Almanza, 686 S.W.2d at 171. Article 36.16 of the code of criminal procedure governs supplemental jury charges and does not, in all instances, prevent the trial court from submitting a supplemental charge after the jury has begun deliberating. Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 2006); Smith v. State, 898 S.W.2d 838, 854-55 (Tex. Crim. App. 1995); Roberson v. State, 113 S.W.3d 381, 384 (Tex. App.-Fort Worth 2003, pet. ref'd). After argument begins, a trial court may give the jury a supplemental jury charge if it is required by the improper argument of counsel or the request of the jury or if the trial court, in its discretion, permits the introduction of additional testimony. Tex. Code Crim. Proc. Ann. art. 36.16. A trial court may also withdraw and correct its charge if it is convinced the charge is erroneous. Smith, 898 S.W.2d at 854-55; Gaines v. State, 710 S.W.2d 630, 633 (Tex. App.-Dallas 1986, pet. ref'd); Roberson, 113 S.W.3d at 384. Appellant argues the trial court erred by giving the supplemental charge because there was no improper argument by counsel, no additional testimony, and the original charge was not erroneous. The State responds the trial court properly gave the supplemental charge in response to a request by the jury. In Seals v. State, 90 S.W.3d 422 (Tex. App.-Eastland, 2002, pet. ref'd), the defendant was charged with intentionally causing bodily injury by stabbing the victim in the abdomen and the neck with a knife. The trial court instructed the jurors that they should find the defendant guilty if they found he stabbed the victim in the abdomen and the neck. During deliberations, the presiding juror sent a note to the trial court asking how the wording "in the abdomen and the neck" bound the jury. In a discussion with counsel, the trial court noted it had "erroneously charged the jury conjunctively when the Court should have charged the jury disjunctively." Id. at 423. Over defense counsel's objection, the trial court submitted a supplemental instruction to the jury that the charge should read "abdomen or neck" as opposed to "abdomen and neck." Id. The appellate court noted a proper charge would have instructed the jury in the disjunctive:The law is clear that the State can allege "differing methods of committing the offense in the conjunctive" and then submit the charge to the jury "in the disjunctive for the jury to return a general verdict" if the evidence is sufficient to support a finding of guilt under either of the theories submitted to the jury.Id. at 423-24 (quoting Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)). The court concluded the "supplemental instruction was given in response to a request from the jury" and "the trial court did not err when it corrected an erroneous charge during the jury's deliberations." Id. at 424-25; see also Roberson, 113 S.W.3d at 385 (following request from jury for complete definition of burglary, trial court did not err by supplementing charge to include additional definition of burglary). This case is indistinguishable from Seals. The trial court initially charged the jury in the conjunctive, instructing the jurors that they could convict appellant if they found, beyond a reasonable doubt, that appellant grabbed the complainant's arm and wrist and forced her against the wall. However, a proper jury charge would have submitted the alternatives in the disjunctive. Kitchens, 823 S.W.2d 258; Seals, 90 S.W.3d at 424-25; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). During deliberations, the jury requested further instruction on whether, in order to convict, it was required to find appellant both grabbed the complainant and forced her against the wall. In response to the jury's request, the trial court corrected the charge to properly instruct the jury in the disjunctive. The trial court (1) received a request from the jury for additional instruction, and (2) determined it had improperly charged the jury in the conjunctive. See Seals, 90 S.W.3d at 424-25. Accordingly, the supplemental instruction was permissible under article 36.16 of the code of criminal procedure, and the trial court did not err by submitting the supplemental charge. Id.; see Roberson, 113 S.W.3d at 385. We overrule appellant's sole issue and affirm the trial court's judgment.