dissenting.
Because the majority fails to apply the plain language of the controlling statute and this Court’s previous holdings on the issue, I dissent.
Article 36.28 Tex.Code CRiM.PROC.ANN. provides:
In the trial of a criminal ease in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other ....
(emphasis added). Overlooking this article’s unambiguous directive, the majority concludes the trial court did not abuse its discretion in re-reading portions of testimony unrelated to the jury’s inquiry because it would have been impossible to excise those portions without leading to confusion. Brown v. State, 870 S.W.2d at 56 (Tex.Crim.App.1994). I cannot agree. I would first note that article 36.28 does not contain an exception for cases in which it would “confuse the jury” to excise portions of the testimony. Even if such an exception was permissible within the discretion of the trial court, it would not apply in this case because the testimony here could have been limited without leading to confusion.
*57The jury merely requested the names of the persons in the bathroom.1 The testimony relating to whether the persons in the bathtub were clothed and relating to appellant’s shooting of Covington was beyond the scope of the jury’s request. The trial court could have answered the inquiry properly by deleting those portions beyond the scope of the query, leaving the following testimony:
Q. And did Junior, Youngster and Cov-ington come into the restroom?
A Yes, sir.
Q. All five of y’all were in the tub?
A. Yes.
Q. Where was Money Mike when he shot you?
A. He had like one foot out the bathroom and one in the hallway.
Q. So he was halfway in the restroom and halfway out?
A. Yes, sir.
Q. How many boys were in the restroom?
A. Just two.
Q. Two was in there and Money Mike was halfway in and halfway out?
A. Yes.
Q. So three boys were near the restroom?
A. Yes, sir.
Q. Where was the one that you knew as Baby Face, where was he?
A. Standing in front of the bathtub.
Q. Was he near the door too?
A. No, he was standing right in front of the bathtub.
This abbreviated version of Latonya Williams’ testimony clearly reveals that the following persons were present in the bathroom: “Junior” Ray Mahan, “Youngster” Daryl Oudems, Ken Covington, Latonya Williams, “Money Mike,” and “Baby Face” (appellant). The remainder of the questions and answers were unrelated to the jury’s inquiry because they had nothing to do with who was present in the bathroom. Not only did the excessive testimony have nothing to do with the jury’s inquiry, but the repeated references to appellant’s shooting of Coving-ton were particularly prejudicial:
Q. Did this man, the one you call Baby Face, did he say anything to Covington?
A. He made a smart remark, I couldn’t tell you what he said at this moment. And the next thing you know he had shot Ken in the head.
Q. Shot Ken in the head. Did he in fact take his eye out?
A. Yes.
Q. After they shot Ken Covington in the head, what happened then? What’s the next thing you recall?
(emphasis added). While I fail to see how deleting the excessive portions could have confused the jury, it is apparent to me that a re-reading of those portions could well have adversely influenced the jury during its deliberations. Since the objectionable questions could have been easily excised, failure to do so was error. Pugh v. State, 376 S.W.2d 760, 762 (Tex.Crim.App.1964); Tex. Code Crim.Proc.Ann. art. 36.28. The trial court abuses its discretion when it allows portions of testimony which are not related to the jury’s inquiry to be read back. See Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App.1980). For these reasons I dissent.
CLINTON, MILLER and BAIRD, JJ., join this dissent.. I agree with the majority that, contrary to appellant’s contention, the jury did not simply ask whether appellant was in the bathroom, but wanted to know everyone who was in the bathroom. Brown, at 56.