stating that it was unnecessary for court to address whether court's instructions placed undue duress and pressure on jury, but calling attention to coercive jury instruction given in Duke
How later courts described this case
- stating that it was unnecessary for court to address whether court's instructions placed undue duress and pressure on jury, but calling attention to coercive jury instruction given in Duke
- the purpose of Article 36.27 is to afford a defendant and his attorney an opportunity to examine the questions and to urge objections, if any, to the additional instructions or answers to be given to the jury
- jury note stating "We are hung"
Written by the judges who cited it.
The opinion
ODOM, Judge,
concurring.
I join the majority opinion, and take this opportunity to distinguish the four primary cases relied on in the dissent: Brown v. State, Tex.Cr.App., 505 S.W.2d 850 ; Arrevalo v. State, Tex.Cr.App., 489 S.W.2d 569 ; Romero v. State, Tex.Cr.App., 458 S.W.2d 464 ; and Allaben v. State, Tex.Cr.App., 418 S.W.2d 517, 520 .
First, the statutory provision here applicable (Art. 36.27, V.A.C.C.P.), provides in part: “Any communication [from the jury to the court] relative to the cause must be written . . .,” and, “The court shall answer any such communication in writing, . ” (Emphasis added.) Timely objection was raised to the court’s failure to follow this mandatory statute. As was pointed out and discussed in Allaben v. State, supra, the first case decided under Article 36.27 of the 1965 Code of Criminal Procedure, this new statutory provision changed the law from what it was under the 1925 Code of Criminal Procedure.
*455 The cases of Brown and Romero, supra,, are not in point because the communications from the court there admonished the jurors about overnight accommodations, not to discuss the case, or to avoid news accounts of the case. Such matters are not within the scope of Art. 36.27, supra, because they are not “communication relative to the cause.” The communication here was relative to the cause and within the scope of the statute.
Arrevalo and Allaben, supra, are not in point because in those cases no objection was voiced to the failure to follow the statute and answer in writing. Allaben v. State, supra, the landmark case, specifically stated, “A careful compliance with Article 36.27, supra, would have required the answer in the case at bar to have been in writing.” (Emphasis added.) Although there follows in that opinion some statements that appear to be based on the 1925 Code provisions, the applicability of the new provision’s mandatory feature was expressly stated. In the case at bar, unlike Arre-valo and Allaben , timely objection was raised to the failure to follow that mandatory requirement of a written answer to the jury’s communication. The need for objection pointed out in Calicult v. State, Tex.Cr. App., 503 S.W.2d 574 , was here satisfied.
PHILLIPS, J., joins this opinion.