X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:A jury convicted the defendant of a Class A misdemeanor assault offense, made an affirmative finding of family violence, and sentenced him to the maximum sentence of one year in jail and a $4,000 fine with no recommendation to probate or suspend the jail time or the fine. The trial court’s judgment incorporated the jury’s affirmative family-violence finding by stating that appellant was convicted of “Class A Assault Family Violence.” The information alleged that Beatrice Brown was “a family member and a household member” of appellant’s when appellant caused bodily injury to Brown by striking her in the face with his hand. The state presented evidence that appellant and Brown were “dating and had been staying together” when appellant came home drunk and struck Brown in the face with his hand. The jury charge instructed the jury to convict if it found beyond a reasonable doubt that appellant caused bodily injury to Brown by striking her in the face with his hand. The verdict form reflects that the jury found appellant “guilty as charged.” This verdict form also contains Family Code definitions of family violence and dating violence, and it reflects that the jury found by a preponderance of the evidence that Brown was “subjected to family violence by” appellant. The verdict form originally asked the jury to decide whether Brown was “a member of the household of” appellant. This phrase was crossed out and the hand-written phrase, “subjected to family violence by,” was substituted. Appellant made no objection in the trial court to the jury’s verdict. The clerk’s record also contains two questions that the jury sent to the trial court during its punishment-phase deliberations: “If we sentence [appellant] to a certain amount of time-what is the actual time of the sentence will he serve?” and “If [appellant] cannot pay his fine, will his fine be paid with jail time served consecutively or concurrent[ly][?]“ The clerk’s record contains the trial court’s answers: “The time served varies and the decisions are made by the Sheriff’s office rather than by the Court. It can be actual time or the sentence divided by three or anything between those extremes” and “[Appellant] has the choice of whether to pay the fine or sit it out. If he sits it out, it is consecutively served.” The record is otherwise silent on the procedures followed when the trial court responded to the jury questions. Appellant claimed for the first time on direct appeal that the trial court violated Article 36.27 of the Texas Code of Criminal Procedure “when the jury sent out a note for further instruction.” Article 36.27 requires the court to “submit the question and also submit his answer to the same to the defendant or his 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.” Appellant claimed that the trial court failed to notify him of the jury questions as required by Article 36.27 and that he, therefore, had no opportunity to object to the trial court’s answers to them. Appellant asserted that all of this should have been presumed, because the record was silent. Appellant also claimed that the trial court’s answers to the jury questions were improper jury instructions which egregiously harmed him because they “went directly to the heart of the issue for which he was on trial” and because the jury ultimately “sentenced [him] to the maximum fine and sentence, despite the fact that he was eligible for probation and had no prior felony convictions.” Appellant claimed in another point of error that the trial court erred in incorporating into its judgment the jury’s family violence finding “when the jury’s answer to the question propounded by the Court on the verdict form did not support that finding.” Relying on this Court’s decisions in Green v. State and Smith v. State, the court of appeals presumed on the silent record that the trial court complied with the requirement of Article 36.27 that the trial court notify appellant of the jury questions. Based on this presumption, the court of appeals decided that appellant procedurally defaulted any claim that the trial court’s answers to the jury questions were improper since nothing in the record showed that appellant objected to them. The court of appeals did not address whether the trial court’s answers to the jury questions were jury instructions that egregiously harmed appellant. It further decided that the hand-written phrase in the verdict form, “subjected to family violence by,” did not “negate the jury’s answer to the question that appellant was a member of [Brown's] household.” HOLDING:Affirmed. The defendant claims that the CCA in Green erred in presuming on a silent record that the trial court complied with the requirement of Article 36.27 that a trial court notify a defendant of jury questions. The requirement of Article 36.27 that a trial court notify a defendant, if possible, of a jury’s questions and of the trial court’s proposed answers to them is meant to provide the defendant with an opportunity to be heard and “urge objections, if any, to such [answers].” See Edwards v. State, 558 S.W.2d 452, 454 (Tex.Cr.App. 1977). The court says it understands the federal constitutional due-process claim presented in appellant’s first ground for review to be that “waiver” of Article 36.27 requirements may not be presumed on a silent record. Appellant cites no authority to support this claim. The CCA states that its research indicates that the Supreme Court has never decided that federal constitutional due process principles prohibit an appellate court from presuming on a silent record a trial court’s compliance with Article 36.27 requirements. Appellant’s federal constitutional due-process claim fails even if Green erroneously created a state-law presumption of compliance with Article 36.27 requirements on a silent record. With respect to any state-law claims presented in appellant’s first ground for review, the CCA says the defendant essentially claims that, when the record is silent, the CCA should abandon Green’s presumption of a trial court’s compliance with Article 36.27 requirements and instead adopt the opposite presumption of a trial court’s noncompliance with Article 36.27 requirements. It declines to do so, saying that Green is consistent with rules of procedural default and rules of appellate procedure that usually apply in cases like this. In this case, the record appellant presented to the court of appeals did not show that the trial court failed to notify appellant of the jury questions or that appellant objected to the trial court’s answers to the jury questions. The record presented to the court of appeals, therefore, required a decision that appellant procedurally defaulted any claimed violation of Article 36.27 and any objection to the trial court’s answers to the jury questions. With regard to the second paragraph of Article 36.27, which, as a matter of state law, requires that all Article 36.27 proceedings in felony cases “be a part of the record and recorded by the court reporter,” appellant has not preserved error with a timely objection. We further note that the second paragraph of Article 36.27 applies only to felony cases and this is a misdemeanor case. The CCA rejects appellant’s first ground for review. Appellant’s federal constitutional due process claims on the family-violence-finding ground are not very clear and are somewhat multifarious, writes the CCA. The question of whether the jury’s affirmative finding would sustain an increased penalty in a future prosecution of this appellant remains unanswered. The effect of the jury’s response herein is not ripe for consideration, and the CCA dismisses this ground as improvidently granted. OPINION:Hervey, J.; Keller, P.J., Meyers, Keasler, Holcomb, Hervey and Cochran, J.J. Price, J., concurred. Johnson, J., filed a concurring and dissenting opinion. Womack, J., not participating.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.