*1 err, judgments and we affirm the below.3
WOMACK, J., concurred
judgment. WORD, Appellant
Michael Brian of Texas. STATE
No. PD-0834-05.
Court of Criminal of Texas. 14, 2006.
June Therefore, § this com Appellant provides argument he has waived us with no authority plaint, and we will not address it. See Rus that the trial court’s comments vio (Tex.Crim. provision under the seau v. 171 S.W.3d late the due course of law 38.1(h)). App.2005) (citing P. Tex.R.App. Texas Constitution. See Tex. art. Const, *2 family violence.1 finding of
affirmative maxi- appellant to the jury The sentenced and a year jail one mum sentence $4,000 no recommendation fine2 with jail time or the suspend probate or incorpo- court’s fine. The trial family-violence jury’s affirmative rated the that was con- stating appellant by Family A Assault Vio- victed of “Class lence.” alleged that Beatrice
The information family and a house- Brown “a member appel- appellant’s when hold member” of bodily injury by to Brown lant caused his striking the face with hand. her appel- that presented The State evidence had been “dating lant and were and Brown staying appellant came together” in the face home drunk and struck Brown jury charge instructed with his hand. beyond jury to convict it found Abilene, Copeland, appellant. Erika that caused doubt reasonable Dyer, Atty., K. Dist. Abi- Patricia Asst. striking her in bodily injury by to Brown Paul, lene, Attorney, Matthew Aus- State’s hand. the face with his tin, for the State. form, Appendix as The verdict attached A, found reflects OPINION form “guilty charged.” This verdict HERVEY, J., delivered Family Code definitions also contains P.J., KELLER, in which violence,3 and it family dating violence MEYERS, KEASLER, HOLCOMB by prepon- found reflects that the JJ., COCHRAN, joined. the evidence that Brown was derance of “subjected family by” appellant. A violence jury convicted of a Class A originally form asked and made an verdict misdemeanor assault offense assault, Pen.Code, but not include de- or sexual does 22.01(a)(1); § Pen. See Tex 1. Tex Fam.Code, Code, protect 22.01(b); 71.004(1). oneself.... fensive measures § § Tex 71.0021(a), Fam.Code, defines Section Tex. Pen.Code, § 12.21. See Tex. dating to mean: violence "Dating an act an indi- violence" means 71.004(1) family violence to defines Section against individual another vidual mean: person has had a has or with whom family of a or house- act member [A]n relationship dating is intended to and that family against another member of hold harm, bodily injury, physical as- result in or household is intended result sault, is a threat assault or that or sexual harm, assault, bodily injury, physical reasonably places in fear the individual a threat that rea- assault or that is sexual harm, bodily injury, physical of imminent sonably places the in fear of immi- member assault, harm, physical bodily injury, nent to decide whether Brown was “a member claimed for the first time on appellant. household of’ appeal This direct that the trial court violated phrase 36.27, was crossed out and the hand-writ- Article PROC., “when Tex.Code CRIm. phrase, “subjected ten *3 family violence sent out a note for in- further by,” was substituted. Appellant provides: made no struction.” Article 36.27 objection in the trial court to the jury the When wishes to communicate verdict. court, with the it notify shall so sheriff, who shall inform the court there-
The clerk’s record also contains two
Any
of.
communication relative
questions,
B,
attached
Appendix
as
written,
cause must be
prepared by the
jury
sent to the
during
trial court
its
foreman and shall be submitted to punishment-phase
deliberations.
These
court
through the bailiff. The court
questions ask:
shall answer any such
communication
1.
If we sentence [appellant] to a cer-
writing, and
giving
before
such answer
tain amount of time—what is the actual
jury
shall use
diligence
reasonable
time of the sentence will he serve?
to secure
presence
of the defendant
If [appellant]
fine,
pay
cannot
his
counsel,
and his
and shall first submit
will his fíne
paid
jail
be
time served
question
and also submit his answer
consecutively
concurrent[ly][?]
to the same to the defendant or his
The clerk’s record contains the trial
objections
counsel or
exceptions,
answers,
court’s
Appendix
attached as
C.
the same
any
manner as
other written
These answers are:
instructions are submitted to such coun-
The
sel,
time served varies and the decisions
before
gives
the court
such answer
are
by
made
the Sheriffs office rather
jury,
to the
but if he is unable to secure
by
than
the Court.
It can be actual
the presence of the defendant and his
time or
counsel,
the sentence
by
divided
three or
then he
proceed
shall
to answer
anything between those extremes.
the same as
proper.
he deems
The
written instruction or answer to the
[Appellant] has the choice of whether to
open
communication shall be read in
pay the fíne or sit it out.
If he sits it
expressly
court unless
waived
out,
consecutively
it is
served.
defendant.
The record is otherwise silent on the
eases,
All
proceedings
felony
such
procedures that were followed when the
part
shall be a
of the record and record-
trial court responded
to the
questions.
reporter.
ed
the court
The reporter’s record contains no refer-
ence to the trial
responding
Appellant
claimed that
the trial court
jury questions. Nothing in the record re-
him
notify
jury questions
failed to
appellant objected
flects that
he,
to the trial
required by Article 36.27 and that
court’s
jury questions.
therefore,
answers to the
opportunity
object
had no
record is also silent on when appellant
the trial court’s
Appel-
answers to them.
became aware of these communications be-
lant asserted that all of this should have
jury.
tween the trial court and the
been
on a
Appel-
silent record.4
assault,
assault,
regarding
or sexual
but does not in-
Because the record is silent
procedure by
protect
clude defensive
which the court handled the
measures to
oneself.
jury,
notes from the
Mr. Word must assume
Appellant
ap-
claimed in his brief on direct
that the defense was not
allowed
peal:
proposed
ques-
or submit a
answer to the
claim
any
procedurally
court’s an-
defaulted
also
that the trial
lant
claimed
jury questions
to the
trial court’s answers
jury questions
improper
to the
were
swers
nothing in
since
improper
were
egregiously
instructions
which
objected to them.
showed
they
directly
him
harmed
because
“went
7,
2005 WL
See Word
slip op.
issue for
he was on
the heart
which
(TexApp. No. 11-03-0040S-CR—
ultimately
trial” and because the
“sen-
2005).7
Eastland,
April
delivered
fine
to the maximum
tenced [him]
not address whether
Court of
sentence,
eligi-
the fact
he was
despite
jury ques-
to the
the trial court’s answers
felony
probation
prior
and had no
ble
egre-
tions
instructions
were
in another
convictions.”
claimed
*4
appellant. The
of
giously harmed
Court
in
point of error that the trial court erred
the
Appeals also decided that
hand-written
the
incorporating
jury’s
into its
form,
to
“subjected
in
verdict
phrase
the
family
jury’s
the
violence
“when
by,”
not
the
family
“negate
did
violence
by
question propounded
answer to the
the
appel-
to
jury’s
question
answer
the
that
form
not support
on the verdict
did
Court
house-
lant
a member of [Brown’s]
was
finding.”
that
Word,
at 4-5.8
hold.” See
slip op.
in
Relying on this Court’s decisions
discretionary
our
authori-
State,6
We
exercised
Green
Smith v.
and
the
State5
ty
grounds
to
these
The
review
decisions.
of
on the silent
Appeals
Court
granted
upon which we
review state:
complied
that
the trial
court
requirement
Appeals
the
of Article
that
the
86.27
The
of Criminal
decision
Court
],
notify appellant
jury
presumption
court
of the
in
a
[Green
trial
which created
jury
response
on this
the
that
trial court’s
to a
questions.
presumption,
Based
a
open
note
court and
a deten-
appellant
of
decided that
was
Court
Therefore,
tion,
appellant
deprived
trial
Article 36.27.
because the
court
the
tion of
(Citation
right
notifying
by
defense
error.
of
not
Mr.
has not shown reversible
omitted).
Word or
of
in the
his counsel
the notes
first
Word,
place....
slip op.
See
at 7.
189,
(Tex.Cr.App.1995).
5. 912 S.W.2d
Appeals’ opinion states:
8.The Court of
argues
jury
Appellant also
that the
did
(Tex.Cr.App.1974).
S.W.2d
6. 513
to
of
[Brown’s]
find
be a member
wording
on
household because
Appeals’
states:
7. The Court of
changed.
jury’s
was
As
affirmative answer
giving
The
of additional instructions to
noted,
previously
the words “member
jury by
compliance
the trial court without
through
were
household”
marked
requiring
with the statute
such communica-
"subjected
family
were
violence”
words
presence
open
court
tion
be in
and in
question
jury
The
asked of the
inserted.
reversible er-
of
defendant constitutes
the vic-
whether or not the
found
was
omitted). However,
(Citations
ror.
the de-
appellant’s
a member of
house-
tim to be
bring
the error to
trial
fendant must
altered answer still instructs
hold. The
by objection or
court’s attention
formal bill
"yes”
"no” in relation to that
to find
or
(Citation omitted).
exception.
In the
of
language "subject-
question. The corrected
contrary
showing
absence
in the
of
negate
family
does not
ed to
violence”
record,
presume
we
the trial court’s
question
to the
open
appel-
response
and in
was
We
of
household.
[Brown’s]
was a member
presence.
(Citing
lant's
to Green and
legally
both
evidence to be
Smith).
find that
show
record does not
factually
sufficient to show
appellant objected to
re-
the trial court’s
a member
the victim’s household.
sponses
perfected
exception
bill of
con-
Word, slip op. at
cerning
response
See
4-5.
in viola-
the trial court’s
exactly
dant’s presence,
by
as mandated
in Green v.
[Article
what it
36.27], despite
condemned, i.e.,
no evidence on the record
purportedly
decided the
in support
presumption,
of that
is an
speculation
case based
about
matters
unconstitutional
violation
a criminal
shown in
record. The statute
right
defendant’s
a fair trial
and due
requires the record to show all actions
process rights
guaranteed by
regarding
taken
the trial court
United States and Texas Constitutions.
notes.
There were
notes in Mr.
herein,
of Appeals
decision
Green’s case. The record is silent as to
[Green],
which relied on
in derogation
the trial court’s
regarding
actions
36.27,
of the mandates of Article
denied
notes. Had the trial court followed the
Mr.
his fair trial and
process
Word
due
statute,
mandates of the
there would
rights and should be reversed and ren-
have
reflecting
been a record
either the
dered.
fact that the court used reasonable dili-
equal protection
Mr. Word’s
and due
gence
presence
secure
the de-
rights
process
denied
the trial
were
fendant and his counsel in
order
allow
appellate
affirming
court and
courts’
objection
proposed
or comment
its
*5
A
the offense of Class
jury questions
answers to the
and was
Violence,
Family
jury’s
Assault
when the
so;
unable to do
that the defense was
to
question propounded by
the
object
given the opportunity to
to the
the
on
Court
the verdict form
not
proposed
jury,
answers to the
but ex-
support that finding.
or,
pressly
right;
waived that
that the
actually
objection
defense
had some
to
36.27
ARTICLE
proposed
the
answers. Because the rec-
Appellant claims that
this
in
Court
silent,
only logical
ord was
the
conclu-
to
on
presume
Green erred
a silent record
sion, based on the
of the stat-
mandates
compliance with
requirement
the
of Article
case,
ute and
in
the facts
the Green
notify
36.27 that a trial
a
court
defendant
Green, supra,
that
the
court
in
trial
jury questions.
argues:
He
jury’s questions
proceeded to answer the
State,
In
v.
following
Green
the Court of Criminal
without
the mandates of Arti-
Appeals
argument
was faced with the
Any
cle 36.27.
other conclusion involves
opportunity
that an
no
to
very speculation
had
of Crimi-
object
response
to
trial court’s
to a
in its
in
Appeals
nal
denounced
may
note because “trial counsel
not
Green.
have known of
response
the note and
at
(Bold in original).
all, as far as the record
shows.”
held,
Court of Criminal
that it
of Article 36.27
requirement
notify
defendant,
a
specula-
does not decide cases based on
trial court
if
questions
tion
not
in
possible,
about matters
shown
of a
and of the
and,
record;
showing
in the
of a
trial court’s
to them is
proposed
absence
answers
record,
contrary
pre-
to
in
to
with
provide
“we
meant
defendant
an
objec
trial
in
response
opportunity
“urge
sume the
court’s
was
to be heard and
tions,
in
open
Appellant’s presence.”
any,
[answers].”
court and
to
See Ed
such
(Tex.
respectfully
Id. at 192. Mr.
ar-
S.W.2d
454
Word
wards
gues
Cr.App.1977).9
Criminal
understand the federal
Appeals,
Court of
We
Appellant
authority
support
process
right
cites no
to
to be heard before
trial
responded
jury questions.
claim that he had a
due-
to the
Our
federal constitutional
to
claims
any state-law
presented
respect
claim
With
due-process
constitutional
ground for
in
first
presented
appellant’s
be
ground for review to
appellant’s
in
first
that,
it
review,
stating
in
we note
requirements
Article
that “waiver” of
36.27
about matters
speculate
would
a silent record.
may
presumed
not be
record,
relied on for-
in
Green
shown
words,
In other
we understand
Tex.R.App.
50(d),11which ex-
mer
PROC.
Article 36.27 re
to claim that “waiver” of
an
placed
the burden on
pressly
(including “waiver” of a defen
quirements
requir-
showing
a record
error
present
opportunity
a trial
dant’s
Green,
ing reversal. See
S.W.2d
jury questions)
must
court’s answers
that,
in
This Court Green then stated
can
affirmatively appear
the record and
showing
of a
to the con-
the absence
“[i]n
not be
on silent record.
record,
trial
trary
presume
in the
we
court and
response
open
court’s
authority
sup
Appellant cites no
Arti-
required by
appellant’s presence”
this claim. Our research indicates
port
Green,
at 192.
36.27.
912 S.W.2d
cle
See
Court has never decided
Supreme
process
federal constitutional due
that,
essentially claims
prohibit an
from
principles
appellate court
silent, this Court
the record is
should
a silent
a trial court’s
presuming on
trial
presumption
Green’s
abandon
requirements
Article
compliance with
36.27
with Article
re
compliance
court’s
36.27
(including a
defendant’s waiver
forfei
adopt
opposite pre
quirements and
any objections
a trial
ture
court’s
noncompliance
trial
sumption of a
court’s
jury questions).10
response
Appellant’s
requirements.
de
Article 36.27
We
*6
due-process
federal constitutional
claim cline to do so. Green is consistent with
must, therefore, fail
even Green errone
and
of
of
default
rules
procedural
rules
ously
presumption
procedure
usually
created a
of
in
apply
state-law
appellate
usually
is
compliance
requirements
appealing
Article 36.27
like this.
It
with
cases
present
on a silent
to
a record show
party’s
record.
burden
however,
research,
(most
(Tex.Cr.App.1993)
constitutional
non-exhaustive
279
indicates
See,
right.
e.g.,
may
object
that he
have had such a
no
rights
to
forfeited
failure
522,
Gagnon,
record);
United
v.
470 U.S.
526-
States
express
requirement of
waiver in the
27,
1482,
(1985);
506,
Cochran,
105 S.Ct.
pressly legislative indicates a intent We, therefore, reject misdemeanor case.13 appellate courts disregard should usual appellant’s ground first for review. procedural rules of default and rules of THE
appellate procedure presume FAMILY-VIOLENCE FINDING that a had opportunity defendant no Appellant’s federal constitutional due trial court’s questions answers to process ground claims under this are not record is silent. very clear and are somewhat multifarious. For example, appellant’s brief states case, In this the record the “court should not entered have presented to the Court of did not family violence the affir- because show trial court failed to notify mative not ade- questions or that quately requirements track the statutory objected trial court’s an finding.” Appellant appears of that also jury questions. swers to the The record claim that family- affirmative presented to Appeals, the Court of there any violence does not meet fore, required a that appellant decision Family family Code definitions of or dating proeedurally any defaulted claimed viola appears violence. also to claim *7 any objection tion of Article 36.27 and that the is to support evidence insufficient 12. We note question jury. further that this is consis- written from Neither prior tent this applying with Court’s cases question the answer is the record. The nor statutory predecessors and Article 36.27 its presented appellant’s was coun- Legislature before after 1965 when the Nothing it. sel and he did not is paragraph added second of Article 36.27. review.”). presented for Special Commentary See Historical Note and Onion, Jr.; 36.27 Article Hon. John F. preclude appellant 13. Our would decision not State, compare McClellan v. 118 Tex.Crim. (lack due-process raising opportuni from a of 473, 87, (1931) (compliance 40 S.W.2d 89 ty to be heard before the trial court communi presumed with former Article 36.27 in ab- jury) post-conviction cated with the claim ain record) contrary showing sence of in the with during corpus proceeding ap habeas which Smith, ("incumbent upon S.W.2d at 513 829 pellant opportunity would have an to make a easily bring defendant correctable complete claim includ establish this judge's by objection error to the trial attention ing may have of the trial he learned exception or bill of or the formal acts of the jury. court's See communications with are trial court consistent with” Ar- 11.09, Article also see 36.27); State, 883, Proc.; Tex.Code ticle Verret v. 470 S.W.2d Crim. State, (Tex. generally Young v. 137 65 (defendant’s S.W.3d (Tex.Cr.App.1971) "eighth Cr.App.2004) (discussing preservation ground of er complains error of of certain written reply principles). that the Court ror answers made to a unanswered. remains appellant this Family Code of any of these finding is herein response jury’s of the The effect also appears definitions.14 consideration, we, there- ripe family- affirmative claim improvidently ground this fore dismiss finding inconsistent with what is violence granted. charged in information. was Appeals is the Court of The affirmed. larger issue These claims raise find jury’s family-violence of whether PRICE, J., concurred. preponderance evidence ing JOHNSON, J., concurring and filed a of whether proper.15 question dissenting opinion. an finding would sustain
jury’s affirmative WOMACK, J., participating. penalty prosecution in a future increased evidence, consid- she "somewhat” said that [Brown] out in as set opinion, Appeals’ living reflects: appellant with her. to be ered lived Word, testified that [A witness] slip op. at 4. if that she was "unaware” [Brown] but there "full time.” In [Brown's] he lived 42.013, See Article Proc. TexCode Crim. jury, which she read to the statement finding (mandating court deter affirmative "home" [Brown] stated that came violence); family involves mines offense [Brown] drunk. testified 22.01(b)(2), (mandating Pen.Code, § en Tex. apartment he "all the time” and that at her previous conviction hanced sentence based "stays” testified with her. further [Brown] Family Sections offense under Code of an nights appellant spent week at five 71.005); 71.0021(b), 71.003, Hill nights a at his her house and two week (af (Tex.Cr.App.1996) 913 S.W.2d firma appel- mother’s house. stated that [Brown] proved deadly weapon must be tive his mail her resi- lant did not receive doubt). beyond helped pay bills. reasonable dence but that he her *8 A APPENDIX *9 B
APPENDIX
APPENDIX C *11 Article JOHNSON, J., not case While That is the here. concurring proceed- require that the dissenting. does not 36.27 be in this misdemeanor case recorded ings to dis- join I the the Court’s expect would by reporter, a court one position family-violence of of the issue the the a on sheet. least notation docket I the finding. respectfully dissent as to the support does not a that jury of ruling on the issue the Court’s 36.27; it Article complied trial court with note. merely require To a defendant is silent. governing The statute communications object may to action not even be to an he it Arti- deliberating, the while is too To a require of is to ask much. aware 36.27 of the Code Criminal Proce- cle of a record in such defendant refute silent dure, very specifically delineates what is require him to a prove circumstances is to when a a to the happen sends note impossibility. negative logical —a only if trial leeway trial court. The is the information, issue more the critical court, With diligence to se- “us[ing] reasonable diligence the to secure here —reasonable presence the and his cure the defendant ame- counsel,” so; of the defendant —is more presence is it may unable do then If the appropriate resolution. “proceed [jury question] answer as nable the court not the mandated proper.” specifies deems The statute trial did make [it] all and appellant communications must be in the effort to contact (or writing. request present record. The must be not in this was therefore when if) case, be in writing. jury, must The writ- the answers were read the court, open answer must be ten read denied relief is due appellant will be the he i.e., record, expressly on the unless waived he be to have forfeited because will held By the defendant. plain language, object. its he not Of his claim because did must be read even if the course, case, answers if did that is he not absent; defendant is is the defendant he had because know that absent, “expressly he cannot waive[ ]” question. It’s a More asked Catch-22. reading. available; all that is re- information is trial so is remand quired
The record is silent toas what effort may it does set out what the record was made to contact coun- applicant his not reveal. sel, made, ap- whether contact was questions
pellant became aware of the Neither the record re- answers. does actually given
veal
answers, does it nor reveal whether
prosecutor questions knew of or was sum, KNIATT, Appellant, from the In it process.
also excluded Nathan Andrew appears that the dictates of Article 36.27 complied were with. Texas. The STATE of frequently recite that we will as- We No. PD-0323-05. trial proceedings sume that usually find regular, court were but we so Texas. Criminal arguably supports a record that at least 21, 2006. June involuntary position, e.g., claim of plea met a record plea is that includes voluntary. plea
form that recites