Opinion issued April 27, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01181-CR
DERWICK EUGENE WILKENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 953645
MEMORANDUM OPINION
Appellant, Derwick Eugene Wilkens, appeals from a conviction for the second-degree felony offense of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02(a) & (c)(2) (Vernon 2003). Appellant pleaded not guilty to an indictment that alleged that, without consent, he entered the habitation of Melvin Williams, the complainant, with the intent to commit theft. A jury found appellant guilty, and the trial court assessed punishment at eight years’ confinement. In his two issues, appellant asserts that the trial court’s response to a question posed by the deliberating jury was harmful error because (1) the trial court failed to follow procedural rules that control a trial court’s communications with a deliberating jury and (2) the trial court’s substantive answer to the jury’s question assumed the truth of the State’s testimonial evidence and conveyed the trial court’s opinion that appellant was guilty. We affirm.
Background
On June 7, 2003, the complainant’s apartment was burglarized when he was not at home. The complainant’s neighbor saw two men knock on the door of the apartment, go to the parking lot, return to the apartment with an unknown object, and attempt to open the door. The men then kicked open the door to the apartment. The men made several trips back and forth from the apartment to a car that was parked in front of the apartment building, loading the car with the complainant’s television, CDs and DVDs. The men ran off when deputy sheriffs arrived. The neighbor who had called the police while the men were in the course of the burglary spoke to the deputies that day about her observations.
When the men ran away, they abandoned their car near the complainant’s apartment. The police officers’ search of the car, which had been reported stolen by appellant’s mother, revealed that property belonging to the complainant was inside the car and a photograph of the co-defendant was inside the glovebox of the car. The investigator placed appellant’s and the co-defendant’s photographs in photographic arrays and showed the arrays to the neighbor, who positively identified appellant and appellant’s co-defendant as the two people whom she had seen entering the complainant’s apartment.
At trial, appellant presented witnesses who testified that appellant was with them all day on the day that the burglary occurred. One of appellant’s witnesses testified that she had to pick him up and to drop him off on the day in question because his car was not working.
At trial, during jury deliberations, the jury sent a note to the trial court that asked, “Which window did [the neighbor] testify she viewed the defendant from?” The trial court replied, “The transcript does not state which window she was looking out of when she saw the kick-in because that testimony was done through demonstration. Therefore, you must recall the demonstration that was done to answer your question.” Appellant asserted no objections to either the procedure used by the trial court to answer the question by the jury or the substantive answer to the question. Appellant did not file a motion for new trial or request a motion-for-new-trial hearing.Trial Court’s Substantive Answer to Jury’s Question
Within his second issue, appellant contends that he is entitled to a new trial because he was egregiously harmed by the trial court’s violation of article 36.14 of the Texas Code of Criminal Procedure.
Article 36.14 of the Code of Criminal Procedure states the requirements for the trial court’s jury charge. Article 36.14 requires that the trial court deliver to the jury
a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.
Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005). A trial court’s substantive answer to a jury question during deliberations is considered an additional or supplemental instruction to the jury that is governed by the requirements of article 36.14 of the Code of Criminal Procedure. Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993). We, therefore, consider the law governing jury charges as the pertinent law for determining the propriety of the trial court’s substantive answer to the jury’s question. See id.
Appellant asserts that the substantive answer to the jury’s question “assumed the truth of testimony of the State’s eyewitness against appellant and conveyed the trial court’s opinion that appellant was guilty of the ‘kick-in.’” Appellant specifically argues that the trial court’s response commented on the weight of the evidence by (1) calling attention to the demonstration, rather than to the testimony about which the jury inquired; (2) stating that the witness “saw the kick-in,” rather than phrasing it in the language used by the jury, “testif[ied] she viewed;” and (3) using the phrase, “kick-in,” which, in association with appellant, is argumentative and could create fear and other emotional responses in the jury.
On appeal, the State acknowledges that the trial court’s response to the jury “obviously could have been better worded” and that “the trial court’s response could be construed as a comment on the weight of the evidence.” Although the State apparently concedes that the trial court’s response to the jury improperly commented on the weight of the evidence in violation of article 36.14 of the Code of Criminal Procedure, the State asserts that appellant waived any error by presumptively agreeing to the charge.
The State, relying on Green v. State, contends that appellant presumptively agreed to the substantive answer by the trial court and, therefore, waived error. 912 S.W.2d 189 (Tex. Crim. App. 1995). A defendant presumptively agrees to a substantive answer by a trial court and waives error when the record is silent concerning the trial court’s response to the jury because an appellate court presumes that the trial court’s response to the question from the jury was in open court, in appellant’s presence, and agreed to by appellant. Id. at 192–93. In Green, as here, (1) the record did not reflect any objection to the trial court’s response to the jury’s question, (2) the defendant asserted that he had no opportunity to object to the trial court’s response to the jury because the record was silent with regard to whether the trial court’s response was in open court and in appellant’s presence, and (3) the defendant asserted a complaint under article 36.14 of the Code of Criminal Procedure that the trial court’s answer improperly gave an instruction on a factual matter and improperly commented on the weight of the evidence. See id. Because appellant’s circumstances here are indistinguishable from those in Green, we must presume that the response to the jury question was read in open court in appellant’s presence, that he had the opportunity to object, and that appellant agreed to the response. See id. Thus, error, if any, is waived. See id.; see also Prystash v. State, 3 S.W.3d 522, 532 (Tex. Crim. App. 1999) (holding that party may not complain on appeal of inclusion or omission of jury charge requested by party).
Despite the holding in Green, appellant contends that his lack of objection at trial to the trial court’s substantive answer to the question requires an Almanza analysis for egregious harm. See Alamanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Almanza provides that when a defendant fails to object at trial to an erroneous jury charge, his conviction may be reversed upon a showing that the error resulted in egregious harm. 686 S.W.2d at 171. Like appellant, Green asserted that the silent record must be interpreted as the defendant’s failure to object at trial to the trial court’s response, entitling him to an egregious-harm analysis under Almanza. Green, 912 S.W.2d at 193. However, the Court of Criminal Appeals rejected the applicability of Almanza because it held that the silent record must be interpreted as the defendant’s presumptive agreement to the trial court’s response. See id. The court explained,
Since we presume the trial court’s response was in open court and in appellant’s presence, we also presume appellant agreed to it. Therefore, appellant waived any error and the Almanza standard is inapplicable.
Green, 912 S.W.2d at 193. Appellant’s presumptive agreement to the trial court’s response to the jury, that is, his presumptive agreement to the jury charge, waives error under Almanza because appellant has no right to assert harm from a jury charge that he agreed to submit to the jury. See id. But see Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004) (holding appellant may still complain of egregious harm in jury charge even though he stated “no objection” to charge before the trial court).
Accordingly, we hold that appellant waived the right to complain about the trial court’s response to the jury’s question. Trial Court’s Procedures in Answering Jury’s Question
Within his second issue, appellant also contends that the trial court violated article 36.16 of the Texas Code of Criminal Procedure because he was not allowed the opportunity to object to the supplemental jury charge. See Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon Supp. 2005). Additionally, in his first issue, appellant contends that the trial court violated article 36.27 because the trial court did not follow the procedure dictated in that article to answer the jury’s question. See id. art. 36.27.
Unlike article 36.14, which, as discussed above, controls the substantive content of the jury charge, articles 36.16 and 36.27 of the Code of Criminal Procedure are procedural rules for the trial court. Article 36.16 provides that if any jury charge is provided after argument begins, the defendant must have the same opportunity to object as with the initial jury charge. Id. art. 36.16. Article 36.27 of the Code of Criminal Procedure governs the procedure that a trial court must follow when answering a question from the jury. Article 36.27 states as follows:
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 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.
Id. art. 36.27.
In the absence of a record that shows that appellant was denied the opportunity to object, error, if any, is waived. See Green, 912 S.W.2d at 192 (stating that in absence of record that shows contrary, appellate court presumes that trial court’s response was in open court and in appellant’s presence, as required by article 36.27, and that appellant had an opportunity to object). As discussed above, the record does not affirmatively show that appellant was denied an opportunity to object; it is silent on the issue. We must, therefore, presume that appellant had an opportunity to object. See Green, 912 S.W.2d at 192. We conclude that appellant has not shown that the trial court committed error under articles 36.16 or 36.27 of the Code of Criminal Procedure.
Appellant contends, however, that his lack of objection at trial to the trial court’s procedures in answering the jury’s question requires an Almanza analysis for egregious harm. See Alamanza, 686 S.W.2d at 171. Almanza applies only to a substantive response by the trial court and not to procedures used by the trial court in relaying a substantive response. See Daniell, 848 S.W.2d at 147–48 nn.3–4 (noting that trial court’s response to jury question constituted charge to jury that is controlled by article 36.19 and Almanza, but procedure is governed by article 36.27); Green, 912 S.W.2d at 192 (holding that failure by defendant to object to trial court’s answer to question waived complaint by defendant that trial court failed to follow requisites of article 36.27 of Code of Criminal Procedure). Almanza is therefore inapplicable to the procedural complaints asserted by appellant.
We conclude that because the record is silent regarding the procedures employed by the trial court in answering the jury’s question and fails to show either an objection by appellant or a denial of the opportunity for appellant to object to the procedures employed by the trial court in answering the jury’s question, we must presume that the trial court followed the procedures required by the Code of Criminal Procedure. See Green, 912 S.W.2d at 192. We hold that appellant waived his complaint concerning the procedures employed by the trial court in answering the jury’s question.
We overrule appellant’s first and second issues.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Alcala.
Do Not Publish. See Tex. R. App. P. 47.2(b).