Hubbard v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted by a jury of possession with intent to deliver a controlled substance and sentenced to life imprisonment in the Texas Department of Corrections— Institutional Division. The conviction was affirmed on appeal. Hubbard v. State, 809 S.W.2d 316 (Tex.App.-Fort Worth 1991). We granted appellant’s petition for discretionary review to determine whether the trial court erred in allowing jurors to take the notes they had taken during trial into the jury room during deliberations, and whether the trial court erred in admitting evidence of an unadjudicated attempted murder during the punishment phase of this non-capital offense. We will affirm in part and reverse in part.

I.

Following jury selection but prior to opening statements, the trial court provided notebooks to the jurors and instructed them that they were allowed to take notes if they wished. Appellant lodged no objection at this time. At the close of trial, appellant objected to the jurors being allowed to take the notebooks into the jury room during deliberations. This objection and a second objection, which was lodged by appellant pri- or to the jury’s deliberation on punishment, were both overruled. Appellant brought a motion for new trial, but presented no testimony from jurors regarding the alleged misuse of the jury notes.

In reliance on Hollins v. State, 571 S.W.2d 873, 881 (Tex.Cr.App.1978), the Court of Appeals was unable to find that the trial court abused its discretion in supplying the jurors with note-taking material or in allowing those notes to be taken into the jury room during deliberations. Hubbard, 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. We have recently addressed the issue of juror note-taking in two cases: Johnson v. State, 887 S.W.2d 957 (Tex.Cr.App.1994); and Price v. State, 887 S.W.2d 949 (Tex.Cr.App.1994). In the instant case the trial judge instructed the jury on the nature of the proceedings and the duty of the jury. Hubbard, supra at 320. At the time of trial, the trial court did not err in *911allowing the note-taking or in allowing the jurors to take their notes into the jury room. Hollins, supra.

Although the trial court’s ruling may not have been in full compliance with this Court’s suggested procedures of Price, supra, there was no abuse of discretion on the part of the trial court. Johnson, supra. We believe the Court of Appeals correctly addressed the issue presented under the law extant at that time. Appellant’s first ground of review is overruled.

II.

Next, appellant claims the Court of Appeals erred in holding that the trial court properly admitted evidence of an unadjudi-cated attempted murder at the punishment phase of the trial. The Court of Appeals’ opinion was handed down before our decision in Grunsfeld v. State, 843 S.W.2d 521 (Tex.Cr.App.1993). We, therefore, sustain appellant’s second ground for review, reverse the judgment of the Court of Appeals, and remand the cause to that court for reconsideration based on our opinion in Grunsfeld. Robbins v. State, 843 S.W.2d 570 (Tex.Cr.App.1992).

OVERSTREET, J., dissents. MEYERS, J., not participating.