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Click here for the full text of this decision FACTS:During jury deliberations at Rachelle Howell’s trial, the jurors requested certain testimony be read to them. The judge asked if the jury was in disagreement, and they replied that one or more of them did not clearly hear the testimony. The judge found that this constituted a dispute under the relevant statute. The jury asked for a police officer’s testimony. When told to be more specific, the jury asked for the testimony concerning the “eye movement test.” The judge asked the jury if they were in disagreement, and the jury said that they had an individual, or maybe more, who didn’t clearly hear all of the testimony. The jury found Howell guilty. Howell appealed, arguing in her second point of error that the trial judge erred in allowing testimony to be read back to the jury in the absence of a disagreement. The court of appeals agreed. HOLDING:Reversed and remanded. When the jury asks that certain testimony be reread, the judge must first determine if the request is proper under Texas Code of Criminal Procedure Article 36.28. Iness v. State, 606 S.W.2d 306 (Tex. Crim. App. 1980). A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28. Instead, the request must reflect that the jurors disagree about a specified part of testimony. Moore v. State, 874 S.W.2d 671 (Tex. Crim. App. 1994). The trial judge’s conclusion as to whether there is a factual dispute between the jurors is reviewed for an abuse of discretion. Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994). A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. This case falls somewhere between Moore and Robison, the court believes. Like Robison, in this case there were multiple requests for testimony, each becoming increasingly specific. But unlike Robison, here the judge never told the jury that a disagreement was required. Instead, the judge merely inquired as to whether the jury was in disagreement. The court of appeals, noting this distinction, concluded that this case was more similar to Moore. The court found that the jury never indicated a disagreement in this case, and that the increasingly specific notes were irrelevant because the judge had not told the jury that a disagreement was required. But in reaching this decision, the court of appeals failed to properly apply the standard of review. The judge went to great lengths to examine the notes of the jury and to determine whether a dispute existed. The judge did not rely solely on speculation; instead, he analyzed the notes and believed that they reflected a dispute. This was a reasonable conclusion under the circumstances. The court cannot say the judge abused his discretion in inferring a dispute among the jurors in this case. “Howell argues that,”[w]here some of the jury members do not hear or remember testimony, there can by definition be no”dispute’ about it.’ She seems to say that a jury must use the word”disagree’ or”disagreement’ in its note to the judge in order to satisfy the statute. We reject this hypertechnical interpretation.” OPINION:Keasler, J.; Keller, P.J., Price, Womack, Johnson, Hervey, Holcomb and Cochran, JJ. Meyers, J., did not participate.

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