IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 18, 2003
______________________________JAMES SHAD NEAL,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2001-472,705; HON. RUSTY LADD, PRESIDING _______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
In one issue, appellant James Shad Neal appeals his conviction for driving while intoxicated. In doing so, he contends that the trial court erred in re-reading to the jury more testimony than needed to answer its inquiry via art. 36.28 of the Texas Code of Criminal Procedure. We affirm the judgment of the trial court.
BackgroundAfter each side completed the presentation of their respective cases and during deliberations by the jury, the jury foreman sent the following to the trial judge:
We would like to review the testimony of Ms. Ochoa. Specifically the part regarding whether or not a person could produce a 0.172 and have been a 0.08 [one] hour before and her clarification after defense cross. (1)
In response, the trial judge informed the jury that "[n]o part of a witnesse's [sic] testimony may be read back to you unless you certify . . . that you are in disagreement about a particular portion of the witnesse's [sic] statement." Then, the trial court received the following missive from the jury:
We would like to review the testimony of Ms. Ochoa. We are in disagreement over whether or not she stated a person could blow a 0.172 at the time of the test while having been 0.08 some period of time prior to the test time.
In response, the following excerpt from Ms. Ochoa's testimony was read to the jury:
- Ms. Ochoa, what is extrapolation?
- Extrapolation is trying to determine the alcohol concentration from
a given result at one time and what that would have been - given
specific information what that would have been at a prior time period.
- And that's a specific number at a specific time?
- Right. There is also very specific information needed to do that.
- Is it possible for someone to blow .172 and one hour earlier have
blown under a .08?
* * *
- Yes.
- It is possible?
- Sure.
- How is that possible?
- Okay. A person controls their own absorption by the amount that
is consumed and the time period that . . . is consumed in and the biggest
factor would be empty stomach. Depending on how much a person
drinks, they can absorb a lot within an hour if they drink a lot, and
so you would have to have a lot consumed, but you can - you can
absorb that much in an hour, especially on an empty stomach, to
reach a higher alcohol concentration at a later time.
- So if I were pulled over by an officer and one hour later I blew a
.172, you're saying it's possible for me to have been under .08 while
I was driving?
- But you would have had - - yes, but you would have had to consume
that a lot in a very, very short period of time immediately before that
stop was made. On an empty stomach that short period of time about
15 minutes because then you're looking for complete absorption. So
if you consumed a whole lot right before the stop, then you have a lot
of absorption, but it has to be a lot.
Issue
Appellant argues that the trial court read too much in response to the jury's inquiry. That is, it should have only read the specific answer "yes" to the question about whether Ochoa said someone could have a blood alcohol level of 0.172 while only having one of 0.08 an hour earlier. (2) We overrule the issue.
According to art. 36.28 of the Code of Criminal Procedure, if the jurors disagree about what a witness said, they may have read to them from the reporter's notes that part of the witness' testimony or the particular point in dispute, but "no other." Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 1981). When such a circumstance arises, the trial court must interpret the communication, decide what portion of the testimony best answers the question, and limit the testimony accordingly. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994); Goldstein v. State, 803 S.W.2d 777, 795 (Tex. App.--Dallas 1991, pet. ref'd). Furthermore, the manner and extent of its response cannot be held wrong unless the trial court abused its discretion. Brown v. State, 870 S.W.2d at 55; Megason v. State, 19 S.W.3d 883, 888 (Tex. App.--Texarkana 2000, pet. ref'd).
Here, appellant would have the trial court strictly interpret the query posed by the jury. Furthermore, in construing it, the court would simply be limited to considering the missive in which the jurors indicated that they disagreed, he continues. It purportedly could not consider prior notes from the jury directly relating to the dispute. We disagree for to adopt such a stance would run afoul of precedent. For instance, the appellant, in Fernandez v. State, 915 S.W.2d 572 (Tex. App.-San Antonio 1996, no pet.), argued that the trial court erred in reading testimony to the jury because its written inquiry said nothing about a disagreement. In rejecting the argument, the reviewing court considered not only the message issued by the jury immediately before the trial court read the testimony in question but also the prior notes from those jurors. Id. at 574. According to the court, "it [was] reasonable from the progression of notes and the language used in the second note for the trial court to conclude that members of the jury disagreed about the officer's testimony." Id. (Emphasis added).
Similarly, in Randon v. State, No. 06-01-00183-CR, slip op. at 9, 2003 Tex. App. Lexis 2070 (Tex. App.-Texarkana, March 10, 2003, no pet. h.), the appellate court considered a progression of notes in assessing whether there existed a disagreement for purposes of art. 36.28. Furthermore, it did so since the Court of Criminal Appeals did so in Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162, 115 S. Ct. 2617, 132 L. Ed. 2d 859 (1995) (again involving the issue of whether the jurors disagreed about particular testimony).
Robison is of import since there the Court of Criminal Appeals explained the two competing interests underlying art. 36.28 and expounded upon their balance. One involved the need to avoid commenting upon the evidence while the other entailed the desire to provide the jury with the means to resolve any factual disputes its members may have. Id. at 480. More importantly, in striking the appropriate balance between them, it implicitly recognized that a trial court may consider a progression of notes from the jury when attempting to fulfill the mandate of art. 36.28. Id. at 480-81.
One other noteworthy opinion is that of Brown v. State, 870 S.W.2d 53 (Tex. Crim. App. 1994). There, the issue did not pertain to the existence of a disagreement, as in Robison, but whether the trial court erred by re-reading too much testimony. Moreover, the Court of Criminal Appeals affirmed the trial court's decision even though some of the testimony read did not expressly address the disagreement mentioned by the jury. It did so because the additional testimony served to place in "context" that which was directly on point. Id. at 56.
From Brown, Robison, Randon, and Fernandez, we deduce that the context of the final note cannot be ignored. It must be considered to determine not only if a disagreement exists but also the extent of the disagreement and the appropriate response. Furthermore, that context is comprised of not only the words in the final note but also those appearing in any prior notes giving rise to the final one. That is to say, there must be a logical nexus between the prior and ultimate notes for the former to be properly contextual of the latter. And, all this is done on a case by case manner to avoid commenting upon the evidence and to give the jury that needed to resolve factual disputes.
Here, we have such a nexus between the first and last note. Both sought excerpts of Ochoa's testimony. Additionally, the excerpts pertained to her comment about whether an individual could have a blood alcohol of 0.172 an hour after having one of 0.08. And, while the latter note failed to expressly mention whether the dispute implicated Ochoa's explanation of her one word answer, the former did not; both the answer and her explanation were sought. (3) Thus, in reading the last note in context with the first, we are unable to hold that the trial court abused its discretion in opting to read both the one word answer "yes" as well as Ochoa's explanation of that answer. (4)
Appellant relies on Pugh v. State, 376 S.W.2d 760 (Tex. Crim. App. 1964) to urge otherwise. However, in Pugh, the jury asked only about the date and hour that the defendant had been picked up by a highway patrolman. The parties stipulated to the answer which was then read to the jury. Despite this, the trial court then had other portions of the officer's testimony read to the jury which in no way related to the date and hour in question. That act was found to be an abuse of discretion. Id. at 761-62. Here, by contrast, all the testimony read to the jury related to the question asked, as that question was determined by its context.
As the trial court stated, "the jury is entitled to . . . a full and fair answer." Ochoa's explanatory statements could reasonably be considered part of the information needed by the jury to resolve its disagreement, given the several notes involved. Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
1. Ms. Ochoa was the technical supervisor in breath alcohol testing for the Texas Department of Public
Safety.
2. 3. 4.
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NO. 07-10-00267-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 19, 2010
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., APPELLANT
v.
MARK DISANTI, APPELLEE
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY;
NO. 2009-60324-393; HONORABLE DOUGLAS M. ROBISON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER
On October 4, 2010, appellant Mortgage Electronic Registration Systems, Inc., (MERS) and appellee Mark DiSanti filed a joint motion asking us to set aside the judgment of the trial court in the underlying action, remand the case for a new trial, and dismiss this appeal. Attached to the motion is a document memorializing the intention of the parties to seek the requested relief in this court. According to the motion, DiSanti obtained a default judgment against MERS on December 4, 2009. MERS filed a notice of restricted appeal on June 1, 2010.[1]
MERS and DiSanti do not direct us to a location in the record where they agree we will find reversible error of the trial court, apparent on the face of the record. Indeed, the parties do not mention an act of reversible error by the trial court. Rather, in the motion MERS and DiSanti state their attorneys have conferred regarding MERS (sic) appeal and have agreed that the default judgment should be set aside and the matter remanded to the trial court for a new trial.
As authority for the motion, the parties rely on Rule of Appellate Procedure 42.1(a)(2)(A), which permits us to render judgment effectuating the parties agreement in accordance with an agreement signed by the parties or their attorneys and filed with the clerk. Tex. R. App. P. 42.1(a)(2)(A).
The relief the parties seek by their joint motion is beyond that authorized by Rule 42.1(a)(2). We may not order a new trial merely on the agreement of the parties absent reversible error, or vacate a trial courts judgment absent reversible error or a settlement. Notes and Comments, Tex. R. App. P. 42.1; see In re J.A.B., No. 08-06-0201-CV, 2007 Tex. App. Lexis 6312 (Tex.App.--El Paso Aug. 9, 2007, no pet.) (mem. op.) (agreed motion of appellee to reverse and remand proper since appellee conceded one of appellants points of error and the court of appeals agreed trial court erred). For that reason, the motion of the parties as presented is denied.
It is so ordered.
Per Curiam
[1] To prevail on a restricted appeal, the appealing party must establish: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lyndas Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing Tex. R. App. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)). In the motion, the parties agree on the timeliness of the notice of appeal, that MERS was a party to the underlying lawsuit, and that MERS did not participate in the hearing that resulted in the appealed judgment. No mention is made of a timely postjudgment motion or a request for findings of fact and conclusions of law by MERS.