IN THE
TENTH COURT OF APPEALS
No. 10-06-00137-CR
Kevin Revell,
Appellant
v.
The State of Texas,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 05-02646-CRF-361
MEMORANDUM Opinion
A jury convicted Kevin Revell of possessing between 4 and 200 grams of methamphetamine with intent to deliver. The jury assessed his punishment at seventy-five years’ imprisonment. Revell contends in two points that: (1) the court erred by failing to comply with article 36.27 of the Code of Criminal Procedure in its handling of three jury notes; and (2) the court reporter failed to make a complete and accurate reporter’s record. We will affirm.
Reporter’s Record
Regarding Revell’s second point, we begin by noting that the reporter’s record was not filed until nine months after its original due date. Revell filed a motion to abate the appeal contemporaneously with his appellant’s brief for a hearing in the trial court to determine the completeness and accuracy of the record. We granted that motion. See Revell v. State, No. 10-06-00137-CR, slip op. at 4-5 (Tex. App.—Waco Sept. 26, 2007, order) (per curiam) (not designated for publication). Revell identified several deficiencies in the reporter’s record which we directed the trial court to review. The trial court conducted the hearing and ordered the court reporter to file a supplemental record correcting eight particular “inaccuracies/deficiencies.”
Revell’s second point focuses on the court reporter’s failure to make a record of the voir dire proceedings. However, after the abatement hearing, the court reporter prepared and filed a supplemental reporter’s record containing a transcription of the voir dire proceedings.[1]
Our abatement order provided Revell additional time to file a supplemental or amended brief raising any additional issues which may have come to light after the filing of the supplemental reporter’s record. He declined to do so.
Accordingly, we overrule Revell’s second point.
Jury Notes
Revell contends in his first point that the court failed to comply with article 36.27 of the Code of Criminal Procedure in its handling of three jury notes.
Article 36.27 provides:
When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. 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.
All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.
Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006).
Here, it is undisputed that the jury sent three notes to the trial court. The first two concerned a deadly weapon special issue during the guilt-innocence deliberations. The third concerned parole law and was sent during the punishment deliberations. These notes are included in the clerk’s record, but the reporter’s record does not include any reference to them or any hearing in which the trial judge advised the parties how he intended to respond to them. And there is nothing in the record to indicate that the jury returned to the courtroom to receive additional instructions from the trial court in response to these notes.
During the abatement hearing, the trial judge explained to the parties that he never had an opportunity to respond to these notes because the jury returned its verdicts in each instance before he could formulate any response.[2] Revell offered no evidence to refute the trial judge’s recollection.
To establish a violation of article 36.27, the record must affirmatively show such violation. See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006). Here, the record establishes that the trial judge did not violate the statute because he never answered the jury’s notes. Accordingly, we overrule Revell’s first point.
We affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed July 30, 2008
Do not publish
[CRPM]
[1] The court reporter did not, however, file a supplemental reporter’s record correcting the other seven “inaccuracies/deficiencies” identified by the trial court, but Revell has not complained of this failure by motion or other pleading.
[2] Revell’s appellate counsel did not represent him at trial and had never tried a case in this particular trial court, so she was not familiar with how the trial judge handled this matter or how he handled jury notes in general.