Johnson v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted of the offense of murder and sentenced to forty years imprisonment. Appellant appealed the conviction, and in an unpublished opinion, the conviction was affirmed. Johnson v. State, No. B14-91-00659-CR, 1992 WL 258927 (Tex.App.—Houston [14th Dist.] Oct. 8,1992). Appellant petitioned this Court, and we granted review to consider appellant’s second ground for review: whether jurors were improperly allowed to take notes during trial and to take these notes into the jury deliberation room. We will affirm the decision of the court below.

In his second ground for review, appellant argues that the Court of Appeals erred in holding that it was proper for the jurors to take notes during the trial, and in holding there was no error in allowing jurors to take notes into deliberation with them over appellant’s objection. Appellant further contends that the taking of notes by jurors per se injects additional evidence outside the record.

In the instant case, immediately after the jurors were sworn in by the clerk of the court, the trial court instructed the jurors as follows:

TRIAL COURT: “Members of the jury, I know that one or two have a notepad and a pencil. I presume you intend to take notes.
“Let me tell you what the law is in Texas regarding that matter. The law says very strictly — you must follow it very strictly. You may take notes only for your own exclusive use. At no time must you reveal the contents of your notes to any other juror. You may use it for whatever pur*958pose you wish to refresh your memory but only to refresh your memory; not to reveal your notes to any other jurors.
“If at anytime during the trial or deliberation if any juror who has taken his or her notes and revealed it to you the other jurors or juror is to instruct that juror immediately not to do that because each of you must rely upon your own remembrance [sic] and not what somebody else is telling you. So, on that condition you may take notes provided you use it for your own use and benefit.
“Okay? Thank you.” Johnson v. State, slip op. at 7.

Before the jurors retired for deliberations, the judge reminded the jurors of his instructions:

“Let me remind you jurors that took notes that you’re not to reveal the contents of your notes to anyone else in the jury room. If that instruction is forgotten by those persons then the rest of the jurors will remind those who have notes and plan to reveal their notes that that is forbodden [sic] they cannot tell you what the notes contain. The jurors who took notes may use those notes only to refresh your memory, if it will.” Johnson, slip op. at 7.

The issue of juror note-taking has been widely discussed throughout state and federal jurisdictions, and there is a split of authority. Hubbard v. State, 809 S.W.2d 316, 320 (Tex.App.—Fort Worth 1991). In Hollins v. State, 571 S.W.2d 873, 881 (Tex.Cr.App.1978) this Court, after conducting a survey of several jurisdictions, found that “[i]t clearly appears that in the absence of statute the majority view in this country is that the matter of note-taking by jurors and their subsequent use during deliberations is left to the sound discretion of the trial court.”1 Furthermore, in Hubbard v. State, 809 S.W.2d at 321, the Court of Appeals held that even in the absence of a full instruction by the trial court that the notes taken by the jurors are not to be considered as evidence and that the jurors should pay full attention to the evidence as it is being delivered in court, a trial court does not abuse its discretion in supplying the jurors with note-taking material and in allowing the notes to be taken into the jury room during deliberations, (emphasis added)

Appellant cites no statutory prohibition preventing jurors from taking notes, or from using such notes during deliberations. Furthermore, appellant has failed to show that juror note-taking caused him to suffer any harm, unfairness, or prejudice. The record neither indicates the note-taking amounted to juror misconduct, Tex.R.App.P. 30(b)(8), nor that any additional evidence outside the record was injected. Tex.R.App.P. 30(b)(7). In the instant case, we believe the decision to allow jurors to take notes and consult them during deliberation was within the sound discretion of the trial court.

Based on the aforementioned reasons, we affirm the judgment of the Fourteenth Court of Appeals.

. In Hollins, this Court noted that in "twenty-six American state jurisdictions and in the federal courts," note-taking by jurors was permissible. Hollins, 571 S.W.2d at 878. Today, that number has grown to thirty-two state jurisdictions. The federal courts still permit the practice. R.M. Weddle, Annotation, Taking and Use of Trial Notes By Jury, 14 A.L.R.3rd 831 (1993 Supp.). At the same time, the number of jurisdictions prohibiting juror note-taking has only grown from four to five.

Though the rules of law in these jurisdictions are not controlling (the rules are, at best, advisory), the growing trend is to permit the practice of jury note-taking, controlled by the discretion of the trial court.

However, if notes are not allowed at the discretion of the trial judge it would certainly eliminate the matter on appeal and probably save many hours of court time both at trial and at the appellate level.