Word, Michael Brian

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0834-05

MICHAEL BRIAN WORD, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Hervey, J., delivered the opinion of the Court in which Keller, PJ.,

Meyers, Keasler, Holcomb and Cochran, JJ., joined. Price, J., concurred. Johnson,

J., filed a concurring and dissenting opinion . Womack, J., not participating .

O P I N I O N

A jury convicted appellant of a Class A misdemeanor assault offense and made an affirmative

finding of family violence. (1) The jury sentenced appellant to the maximum sentence of one year in

jail and a $4,000 fine (2) with no recommendation to probate or suspend the jail time or the fine. The

trial court's judgment incorporated the jury's affirmative family-violence finding by stating that

appellant was convicted of "Class A Assault Family Violence."

The information alleged that Beatrice Brown was "a family member and a household

member" of appellant's when appellant caused bodily injury to Brown by striking her in the face

with his hand . The State presented evidence that appellant and Brown were "dating and had been

staying together" when appellant came home drunk and struck Brown in the face with his hand. The

jury charge instructed the jury to convict if it found beyond a reasonable doubt that appellant caused

bodily injury to Brown by striking her in the face with his hand.

The verdict form, attached as Appendix A, reflects that the jury found appellant "guilty as

charged." This verdict form also contains Family Code definitions of family violence and dating

violence, (3) and it reflects that the jury found by a preponderance of the evidence that Brown was

"subjected to family violence by" appellant. The verdict form originally asked the jury to decide

whether Brown was "a member of the household of" appellant. This phrase was crossed out and the

hand-written phrase, "subjected to family violence by," was substituted. Appellant made no

objection in the trial court to the jury's verdict.

The clerk's record also contains two questions, attached as Appendix B, that the jury sent to

the trial court during its punishment-phase deliberations. These questions ask:

1. If we sentence [appellant] to a certain amount of time-what is the actual time of

the sentence will he serve?

2. If [appellant] cannot pay his fine, will his fine be paid with jail time served

consecutively or concurrent[ly][?]

The clerk's record contains the trial court's answers, attached as Appendix C. These answers

are:

The time served varies and the decisions are made by the Sheriff's office rather than

by the Court. It can be actual time or the sentence divided by three or anything

between those extremes.

[Appellant] has the choice of whether to pay the fine or sit it out. If he sits it out, it

is consecutively served.

The record is otherwise silent on the procedures that were followed when the trial court

responded to the jury questions. The reporter's record contains no reference to the trial court

responding to the jury questions. Nothing in the record reflects that appellant objected to the trial

court's answers to the jury questions. The record is also silent on when appellant became aware of

these communications between the trial court and the jury.

Appellant claimed for the first time on direct appeal that the trial court violated Article 36.27,

Tex. Code Crim. Proc., "when the jury sent out a note for further instruction." 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.

Appellant claimed that the trial court failed to notify him of the jury questions as required

by Article 36.27 and that he, therefore, had no opportunity to object to the trial court's answers to

them. Appellant asserted that all of this should have been presumed on a silent record. (4) Appellant

also claimed that the trial court's answers to the jury questions were improper jury instructions which

egregiously harmed him because they "went directly to the heart of the issue for which he was on

trial" and because the jury ultimately "sentenced [him] to the maximum fine and sentence, despite

the fact that he was eligible for probation and had no prior felony convictions." Appellant claimed

in another point of error that the trial court erred in incorporating into its judgment the jury's family

violence finding "when the jury's answer to the question propounded by the Court on the verdict

form did not support that finding."

Relying on this Court's decisions in Green v. State (5) and Smith v. State , (6) the Court of Appeals

presumed on the silent record that the trial court complied with the requirement of Article 36.27 that

the trial court notify appellant of the jury questions. Based on this presumption, the Court of

Appeals decided that appellant procedurally defaulted any claim that the trial court's answers to the

jury questions were improper since nothing in the record showed that appellant objected to them.

See Word v. State , slip op. at 7 (Tex.App. No. 11-03-00403-CR-Eastland, delivered April 28, 2005). (7)

The Court of Appeals did not address whether the trial court's answers to the jury questions were

jury instructions that egregiously harmed appellant. The Court of Appeals also decided that the

hand-written phrase in the verdict form, "subjected to family violence by," did not "negate the jury's

answer to the question that appellant was a member of [Brown's] household." See Word , slip op.

at 4-5. (8)

We exercised our discretionary authority to review these decisions. The grounds upon which

we granted review state:

The Court of Criminal Appeals decision in [G reen ], which created a presumption that

a trial court's response to a jury note was in open court and in a defendant's presence,

as mandated by [Article 36.27], despite no evidence on the record in support of that

presumption, is an unconstitutional violation of a criminal defendant's right to a fair

trial and due process rights as guaranteed by the United States and Texas

Constitutions. The Court of Appeals decision herein, which relied on [ Green ], in

derogation of the mandates of Article 36.27, denied Mr. Word his fair trial and due

process rights and should be reversed and rendered.

Mr. Word's equal protection and due process rights were denied by the trial court and

appellate courts' affirming a judgment for the offense of Class A Assault Family

Violence, when the jury's answer to the question propounded by the Court on the

verdict form did not support that finding.

ARTICLE 36.27

Appellant claims that this Court in Green erred to presume on a silent record compliance

with the requirement of Article 36.27 that a trial court notify a defendant of jury questions. He

argues:

In Green v. State, the Court of Criminal Appeals was faced with the argument that

an appellant had no opportunity to object to the trial court's response to a jury note

because "trial counsel may not have known of the note and response at all, as far as

the record shows." The Court of Criminal Appeals held, that it does not decide cases

based on speculation about matters not shown in the record; and, in the absence of

a showing to the contrary in the record, "we presume the trial court's response was

in open court and in Appellant's presence." Id. at 192. Mr. Word respectfully argues

that the Court of Criminal Appeals, in Green v. State , did exactly what it purportedly

condemned, i.e. ., decided the case based on speculation about matters not shown in

the record. The statute requires the record to show all actions taken by the trial court

regarding jury notes. There were jury notes in Mr. Green's case. The record is silent

as to the trial court's actions regarding the notes. Had the trial court followed the

mandates of the statute, there would have been a record reflecting either the fact that

the court used reasonable diligence to secure the presence of the defendant and his

counsel in order to allow for objection or comment to its proposed answers to the

jury questions and was unable to do so; that the defense was given the opportunity

to object to the proposed answers to the jury, but expressly waived that right; or, that

the defense actually had some objection to the proposed answers. Because the record

was silent, the only logical conclusion, based on the mandates of the statute and the

facts in the Green case, is that the trial court in Green, supra , proceeded to answer

the jury's questions without following the mandates of Article 36.27 . Any other

conclusion involves the very speculation the Court of Criminal Appeals denounced

in its opinion in Green .

( Bold in original).

The requirement of Article 36.27 that a trial court notify a defendant, if possible, of a jury's

questions and of the trial court's proposed answers to them is meant to provide the defendant with

an opportunity to be heard and "urge objections, if any, to such [answers]." See Edwards v. State ,

558 S.W.2d 452, 454 (Tex.Cr.App. 1977). (9) We understand the federal constitutional due-process

claim presented in appellant's first ground for review to be that "waiver" of Article 36.27

requirements may not be presumed on a silent record. In other words, we understand appellant to

claim that "waiver" of Article 36.27 requirements (including "waiver" of a defendant's opportunity

to object to a trial court's answers to jury questions) must affirmatively appear in the record and

cannot be presumed on a silent record.

Appellant cites no authority to support this claim. Our research indicates that the Supreme

Court has never decided that federal constitutional due process principles prohibit an appellate court

from presuming on a silent record a trial court's compliance with Article 36.27 requirements

(including a defendant's waiver or forfeiture of any objections to a trial court's response to jury

questions). (10) Appellant's federal constitutional due-process claim must, therefore, fail even if Green

erroneously created a state-law presumption of compliance with Article 36.27 requirements on a

silent record.

With respect to any state-law claims presented in appellant's first ground for review, we note

that, in stating that it would not speculate about matters not shown in the record, Green relied on

former Tex. R. App. Proc. 50(d), (11) which expressly placed the burden on an appellant to present a

record showing error requiring reversal. See Green , 912 S.W.2d at 192. This Court in Green then

stated that, "[i]n the absence of a showing to the contrary in the record, we presume the trial court's

response was in open court and in appellant's presence" as required by Article 36.27. See Green ,

912 S.W.2d at 192.

Appellant essentially claims that, when the record is silent, this Court should abandon

Green's presumption of a trial court's compliance with Article 36.27 requirements and adopt the

opposite presumption of a trial court's noncompliance with Article 36.27 requirements. We decline

to do so. Green is consistent with rules of procedural default and rules of appellate procedure that

usually apply in cases like this. It is usually the appealing party's burden to present a record showing

properly preserved, reversible error. Even with the repeal of former Rule 50(d), this is entirely

consistent with our decision in Rowell , which did not presume error from a silent record. See

Rowell , 66 S.W.3d at 280-81. Consistent with former Rule 50(d), the partial record presented by the

defendant in Rowell showed properly preserved, reversible error. See Rowell , 66 S.W.3d at 280-81.

Nothing in Article 36.27 (including its second paragraph) expressly indicates a legislative intent that

appellate courts should disregard usual rules of procedural default and rules of appellate procedure

and presume that a defendant had no opportunity to object to a trial court's answers to jury questions

when the record is silent.

In this case, the record appellant presented to the Court of Appeals did not show that the trial

court failed to notify appellant of the jury questions or that appellant objected to the trial court's

answers to the jury questions. The record presented to the Court of Appeals, therefore, required a

decision that appellant procedurally defaulted any claimed violation of Article 36.27 and any

objection to the trial court's answers to the jury questions.

With regard to the second paragraph of Article 36.27, which, as a matter of state law, requires

that all Article 36.27 proceedings in felony cases "be a part of the record and recorded by the court

reporter," appellant has not preserved error with a timely objection. (12) We further note that the

second paragraph of Article 36.27 applies only to felony cases and this is a misdemeanor case. (13) We,

therefore, reject appellant's first ground for review.

THE FAMILY - VIOLENCE FINDING

Appellant's federal constitutional due process claims under this ground are not very clear and

are somewhat multifarious. For example, appellant's brief states that the "court should not have

entered the family violence judgment because the affirmative answer of the jury did not adequately

track the statutory requirements of that finding." Appellant also appears to claim that the jury's

affirmative family-violence finding does not meet any of the Family Code definitions of family or

dating violence. Appellant also appears to claim that the evidence is insufficient to support a finding

of any of these Family Code definitions. (14) Appellant also appears to claim that the jury's affirmative

family-violence finding is inconsistent with what was charged in the information.

These claims raise the larger issue of whether the jury's family-violence finding by a

preponderance of the evidence is proper. (15) The question of whether the jury's affirmative finding

would sustain an increased penalty in a future prosecution of this appellant remains unanswered.

The effect of the jury's response herein is not ripe for consideration, and we, therefore dismiss this

ground as improvidently granted.

The judgment of the Court of Appeals is affirmed.

Hervey, J.

Delivered: June 14, 2006.

Publish

1. See Tex. Pen. Code, § 22.01(a)(1); Tex. Pen. Code, § 22.01(b); Tex. Fam. Code, §

71.004(1).

2. See Tex. Pen. Code, § 12.21.

3. Section 71.004(1) defines family violence to mean:

[A]n act by a member of a family or household against another member of the family

or household that is intended to result in physical harm, bodily injury, assault, or

sexual assault or that is a threat that reasonably places the member in fear of

imminent physical harm, bodily injury, assault, or sexual assault, but does not include

defensive measures to protect oneself . . . .

Section 71.0021(a), Tex. Fam. Code, defines dating violence to mean:

"Dating violence" means an act by an individual that is against another individual

with whom that person has or has had a dating relationship and that is intended to

result in physical harm, bodily injury, assault, or sexual assault or that is a threat that

reasonably places the individual in fear of imminent physical harm, bodily injury,

assault, or sexual assault, but does not include defensive measures to protect oneself.

4. Appellant claimed in his brief on direct appeal:

Because the record is silent regarding the procedure by which the court handled the

notes from the jury, Mr. Word must assume that the defense was not allowed to

object or submit a proposed answer to the question, because the trial court deprived

the defense of that right by not notifying Mr. Word or his counsel of the notes in the

first place . . . .

5. 912 S.W.2d 189, 192 (Tex.Cr.App. 1995).

6. 513 S.W.2d 823, 829 (Tex.Cr.App. 1974).

7. The Court of Appeals' opinion states:

The giving of additional instructions to a jury by the trial court without compliance

with the statute requiring such communication to be in open court and in the presence

of the defendant constitutes reversible error. (Citations omitted). However, the

defendant must bring the error to the trial court's attention by objection or formal bill

of exception. (Citation omitted). In the absence of a showing to the contrary in the

record, we presume that the trial court's response was in open court and in

appellant's presence. ( Citing to Green and Smith ). The record does not show that

appellant objected to the trial court's responses or perfected a bill of exception

concerning the trial court's response in violation of Article 36.27. Therefore,

appellant has not shown reversible error. (Citation omitted).

See Word , slip op. at 7.

8. The Court of Appeals' opinion states:

Appellant also argues that the jury did not find appellant to be a member of

[Brown's] household because the wording on the jury's affirmative answer was

changed. As previously noted, the words "member of the household" were marked

through and the words "subjected to family violence" were inserted. The question

asked of the jury was whether or not the jury found the victim to be a member of

appellant's household. The altered answer still instructs the jury to find "yes" or

"no" in relation to that question. The corrected language "subjected to family

violence" does not negate the jury's answer to the question that appellant was a

member of [Brown's] household. We find that evidence to be both legally and

factually sufficient to show that appellant was a member of the victim's household.

See Word , slip op. at 4-5.

9. Appellant cites no authority to support a claim that he had a federal constitutional due-process right to be heard before the trial court responded to the jury questions. Our non-exhaustive

research, however, indicates that he may have had such a right. See, e.g., United States v. Gagnon ,

470 U.S. 522, 526-27 (1985); Illinois v. Allen , 397 U.S. 337, 338 (1970); Lewis v. United States , 146

U.S. 370, 371-79 (1892); Larson v. Tansy , 911 F.2d 392, 394-96 (10 th Cir. 1990); United States v.

Brown , 571 F.2d 980, 984-87 , 986 n.5 (6 th Cir. 1978); United States v. Alper , 449 F.2d 1223, 1230-34 (3 rd Cir. 1971).

10. See Gagnon , 470 U.S. at 527-28 (trial court not required to obtain defendant's express waiver

of right to be present at every trial conference of which a defendant was aware and had a right to

attend); Estelle v. Williams , 425 U.S. 501, 512 (1976) (most constitutional rights forfeited by a

failure to object); Saldano v. State , 70 S.W.3d 873, 888-89 (Tex.Cr.App. 2002); Marin v. State , 851

S.W.2d 275, 279 (Tex.Cr.App. 1993) (most constitutional rights forfeited by a failure to object with

no requirement of express waiver in the record); compare Carnley v. Cochran , 369 U.S. 506, 515-16

(1962) (waiver of right to counsel cannot be presumed on a silent record); also compare Estelle , 425

U.S. at 512 (once a defendant has the assistance of counsel the vast array of trial decisions, strategic

and tactical, which must be made before and during trial rests with the accused and his attorney);

Boykin v. Alabama , 395 U.S. 238, 243 (1969) (when guilty plea is entered, waiver of privilege

against compelled self-incrimination, of right to trial by jury, and right to confrontation cannot be

presumed on a silent record).

11. Rule 50(d) was repealed in 1997. See Rowell v. State , 66 S.W.3d 279 , 281 n. 5 (Tex.Cr.App.

2001).

12. We further note that this opinion is consistent with this Court's prior cases applying Article

36.27 and its statutory predecessors before and after 1965 when the Legislature added the second

paragraph of Article 36.27. See Historical Note and Special Commentary to Article 36.27 by Hon.

John F. Onion, Jr. ; compare McClellan v. State , 40 S.W.2d 87, 89 (Tex.Cr.App. 1931) (compliance

with former Article 36.27 presumed in absence of contrary showing in the record) with Smith , 513

S.W.2d at 829 ("incumbent upon a defendant to bring the easily correctable error to the trial judge's

attention by objection or formal bill of exception or the acts of the trial court are presumed consistent

with" Article 36.27); Verrret v. State , 470 S.W.2d 883, 887 (Tex.Cr.App. 1971) (defendant's "eighth

ground of error complains of certain written answers that the Court made in reply to a written

question from the jury. Neither the question nor the answer is in the record. The answer was

presented to the appellant's counsel and he did not object to it. Nothing is presented for review.").

13. Our decision would not preclude appellant from raising a due-process (lack of opportunity

to be heard before the trial court communicated with the jury) claim in a post-conviction habeas

corpus proceeding during which appellant would have an opportunity to make a complete record to

establish this claim including when he may have learned of the trial court's communications with

the jury. See Article 11.09, Tex. Code Crim. Proc.; also see generally Young v. State , 137 S.W.3d

65 (Tex.Cr.App. 2004) (discussing preservation of error principles).

14. The evidence, as set out in the Court of Appeals' opinion, reflects:

[A witness] testified that appellant lived with [Brown] but that she was "unaware"

if he lived there "full time." In [Brown's] statement which she read to the jury,

[Brown] stated that appellant came "home" drunk. [Brown] testified that appellant

was at her apartment "all the time" and that he "stays" with her. [Brown] further

testified that appellant spent five nights a week at her house and two nights a week

at his mother's house. [Brown] stated that appellant did not receive his mail at her

residence but that he helped her pay the bills. [Brown] said that she "somewhat"

considered appellant to be living with her.

Word , slip op. at 4.

15. See Article 42.013, Tex. Code Crim. Proc. (mandating affirmative finding if court

determines that offense involves family violence); Tex. Pen. Code, § 22.01 (b)(2), (mandating

enhanced sentence based on previous conviction of an offense under Family Code Sections

71.0021(b), 71.003, or 71.005); Hill v. State , 913 S.W.2d 581, 583 (Tex.Cr.App. 1996) (affirmative

deadly weapon finding must be proved beyond reasonable doubt).