Opinion
PD-1035-20
05-11-2022
VINCENT DEPAUL STREDIC, Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Keel and McClure, JJ., joined. Yeary, J., filed a concurring opinion in which Slaughter, J., joined. Walker, J., filed a dissenting opinion.
OPINION
KELLER, P.J.
In this murder prosecution, the jurors disagreed about certain testimony. By statute, testimony may be read back on a point on which the jurors disagree. But instead of merely reading back the testimony in question, the trial court gave the jury a written transcript of that testimony. The court of appeals concluded that the trial court erred in doing so and that Appellant was harmed by the error. We agree that the trial court erred in giving the jury a written transcript, but we conclude that the error was harmless. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
We granted the State's two grounds for review:
1. The Fourteenth Court erred by holding a trial court cannot grant a jury's request for a transcript of disputed testimony.
2. The Fourteenth Court erred by conducting a harm analysis that did not consider the strength of the State's evidence, the weakness of the defense, or the lack of a logical connection between the supposed error and any legally determinative issue.
Article 36.28 currently reads:
In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other; but if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used at trial.Tex. Code Crim. Proc. art. 36.28.
I. BACKGROUND
A. The Incident
On November 10, 2016, Appellant drove around in his car with three friends- Christopher Barriere, Rodrick Harris, and another man. They stopped at a gas station. At some point after the gas had been pumped, Appellant opened the trunk of his car, retrieved a shotgun, and pointed it at Barriere. It is undisputed that the shotgun fired and that Barriere was shot and killed as a result.
What exactly happened during that sequence of events was disputed at trial. According to Harris, Appellant shot Barriere without any apparent provocation. Harris characterized Appellant's conduct as a "murder." Appellant testified that he caught Harris and Barriere smoking PCP and told them to get out of the car. He testified that they were resistant to this demand, so he pointed the shotgun at them just to scare them. Appellant claimed that he was scared of them because of the effects PCP could have on them. Appellant testified that he did not intend to shoot Barriere, did not intend to fire the shotgun, and did not even have his finger on the trigger. He said, "I don't know how it went off. I mean, been friends for a long time. That I did not -- I did not mean to shoot him or not try to shoot him. I didn't know why the gun went off." On redirect examination, he insisted that the shooting was an accident.
After Barriere was shot, Harris jumped at Appellant. According to Harris, this was in reaction to the shooting, and he said to Appellant, "What is wrong with you." According to Appellant, Harris charged at him because he was under the effects of PCP. Appellant pointed the shotgun at Harris, and Harris ran to the front of the car. Appellant got into the driver's seat of the car and drove off.
Appellant later returned to the scene and shot Harris. According to Harris, the shooting occurred without provocation. According to Appellant, he shot Harris because Harris "came at" him. Appellant admitted that he shot Harris intentionally. He claimed that Harris was a big man, weighing 360 pounds or more, and he was afraid that Harris would hurt him. As a result of being shot, Harris suffered injuries to his face-from which he was still recovering at the time of trial.
Surveillance cameras caught most of the events on video, at two different angles. The events occurred at night, the events depicted are, for the most part, relatively far away, there is some blurring, some of the relevant events are obstructed or not caught on video, and there is no sound. Nevertheless, a significant amount of the encounter involving Appellant, Barriere, and Harris is depicted. The videos show the following events: Appellant's trunk is open. Appellant walks slowly from the driver's side door to the trunk. He then moves suddenly behind the trunk, Harris moves suddenly towards him, and Appellant points the shotgun at Harris. Harris then runs around the passenger side towards the front of Appellant's car. Appellant walks towards the driver's side of the car and points the shotgun at Harris. Harris then runs to the convenience store. Appellant then goes to the back of the car and closes the trunk. Harris stands outside the store, watching. Appellant gets in the car and drives slowly towards the store. He stops and opens the driver's side door. Harris walks towards him. Appellant gets slowly out of the car and appears to be taking something out of it. He then turns around and moves toward Harris with shotgun in hand. Harris backs away. Appellant then raises the shotgun and continues to advance on Harris. Harris runs away from Appellant and back towards the store. Appellant then walks back to his car and drives away. Once Appellant drives away, Barriere's body can be seen lying on the ground. Harris walks back toward the spot where Barriere was shot and looks at Barriere's body. Appellant drives back up to the spot, gets out of the car, walks towards Harris and points the shotgun at him. Harris then runs back to the store. Appellant then gets back in the car and drives away again. Harris later walks back to the location of Barriere's body. Appellant's car returns a second time, and Harris can be seen running back to the store as the car backs away.
B. Closing Arguments
The prosecutor briefly addressed a number of aspects of the charged offense that were essentially uncontested: e.g., that the defendant was the person who shot the victim, that the shooting caused the victim's death, and that the shooting was accomplished with a firearm. The prosecutor then focused on the mental-state element for murder and discussed it at length.
The prosecutor argued that Appellant acted within a short period of time and that his conduct appeared to be purposeful throughout the entire incident. The prosecutor contended that the incident did not involve an argument behind the trunk of the vehicle but involved "the defendant specifically going around behind the trunk of that vehicle with one purpose in mind." And the prosecutor argued that this was not a case of "Harris being aggressive or trying to come at him." The prosecutor emphasized that the jurors "get to watch the video" and that the jury already had. He also argued that the defendant had fled and that, when caught by the police, the defendant failed to explain that the shooting was an accident because he had not figured out his story yet.
Defense counsel started closing argument by saying, "It was an accident. It was a horrible, horrible accident." Later, defense counsel said, "They're being aggressive with him, and he raises the shotgun. The shotgun goes off. It was an accident. He would never intentionally shoot one of his best friends."
In his rebuttal argument, the prosecutor stated, "People point guns at people all the time and guns don't just go off." He continued with this theme for some time and argued that Appellant pulled the trigger on purpose. The prosecutor also argued that the claim that the shooting was an accident was inconsistent with the claim that Barriere and Harris acted aggressively: "Is this a case of self-defense where the defendant had to do it and that's why he got his gun out, or is this a case of it's an accident?" The prosecutor argued that it was neither and that, "The defendant had no reason to raise that firearm but to shoot the complainant, and that's exactly what he did here." The prosecutor also pointed to the video as showing that Barriere was shot in the side of the head, meaning that Barriere was "not looking at the defendant when it happens" but was looking at a store and some girls passing by. Referring to the video, the prosecutor also said that "not once is Rodrick Harris coming at the defendant in any form of an aggressive manner." Later, the prosecutor argued that "it wasn't an accident" and "it wasn't self-defense" and told the jury, "You can see that from the videos." He also pointed to various actions on the video to support the conclusion that the shooting was intentional.
B. The Jury Notes and Response
During deliberations, notes were sent back and forth between the jury and the trial court about the jury's request for Appellant's testimony about feeling threatened by Barriere or Harris. The trial court told the jury that there had to be a disagreement about a statement of the witness before it could have the information. Ultimately, the jury said that it was "in disagreement as to the statement of a witness," and asked, "Can we see the court reporter's notes when Vincent Stredic was the witness, when the State Attorney was questioning him, regarding his statement on if Vincent felt threatened by Christopher Barriere and Rodrick Harris?"
The trial court originally told the jury that a disagreement was a predicate to having the testimony "reproduced" but later told the jury it was a predicate to having the "court reporter's notes read."
As originally enacted, and as it substantively remained until 1953, Article 615 of the Old Code read:
If the Jury disagree as to the statement of any particular witness, they may, upon applying to the Court, have such witness again brought upon the stand, and he shall be directed by the Judge to detail his testimony in respect to the particular point of disagreement, and no other; and he shall be further instructed to make his statement in the language used upon his examination as nearly as he can.Old Code art. 615 (1857).
A transcript of the following testimony was submitted to the jury:
[Defense counsel] Q. Yeah. And so at some point we saw the video, right, the surveillance video - -
A. Yes.
Q. -- from the gas station? And looks like Christopher comes towards you. He takes a couple steps toward you. Is that what happened?
A. Yes.
Q. And then at that point, what did you do?
A. I raised the shotgun up just to scare him, just to back him up.
Q. Were you afraid at that point?
A. Yes.
Q. Why were you afraid?
A . Because, you know, I was assaulted with a bat and I can't see out of my eye . So I'm - - I'm already be paranoid, and then when I know the type of things that can happen when people get on that . So - -
Q. When they get on what?
A. PCP.
[Prosecutor] Q. You were standing by the trunk and they got out of the vehicle and came back to you. Is that what you're saying?
A. Yes.
Q. Okay. And you said that at that point Mr. Harris -- Mr. Rodrick Harris started saying something to the effect of you're not going to leave me here; is that right?
A. Yes.
Q. And you said at that point he also charged at you; is that right?
A. Yes.
Q. And you still had the shotgun in your hand at that point?
A. Yes.
Q. And you said that you raised the shotgun up and pointed it towards Mr. Harris; is that correct?
A. I just raised it up. I didn't point it really at nobody.
Q. Where did you point the gun?
A. I just just pointed it in the air.
[Defense counsel] Q. When Christopher Barriere was coming towards you just before that gun went off, were you scared?
A. Yes.
Q. Did you think he could seriously injure you or even kill you?
A. At a point, yes.
[Prosecutor] Q. Just to be clear, when Rodrick - - when the gun went off the first time, you said Rodrick Harris was walking to get back into the car, correct?
A. Yes.
Q. Okay. So he was not coming at you. He wasn't standing still. He's actually walking away from you; is that correct?
A. Yes.
Q. Okay. So just to be clear, you're not saying you had to shoot the gun, you had no other choice. You're saying this was an accident; is that correct?"
A. Yes.
Q. Okay. So you weren't defending yourself with this firearm or anything like that. The gun just accidentally went off?
A. Yes.
[Defense counsel] Q. Were you trying to defend yourself by just raising the gun and showing them the gun?
A. Yes.
The jurors also asked to see the surveillance video footage, and the trial court provided it to them.
C. Jury Charge and Verdict
The jury charge included instructions on the charged offense of murder and the lesser-included offenses of manslaughter and criminally negligent homicide. All three of these offenses required that Appellant caused Barriere's death. The distinction between the offenses was the culpable mental state Appellant had to have with respect to death. For murder, Appellant had to act intentionally or knowingly, while manslaughter and criminally negligent homicide required, respectively, culpable mental states of recklessness and criminal negligence. Murder could also be proven through a culpable mental state of intent to cause serious bodily injury accompanied by an act clearly dangerous to human life that caused death. The jury charge did not include any instructions on self-defense. The jury convicted Appellant of murder.
See Tex. Penal Code §§ 19.02(b)(1), (2), 19.04(a), 19.05(a).
"[A] court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power to take the action arises from an inherent or implied power." State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991) (emphasis added; internal footnote omitted). In a footnote, the Court contends that I rely upon Gandy to support my position. Majority Opinion at 14, n.32. In fact, I rely first-and-foremost upon the text of the statute itself. Unlike the Court, I observe the statute to plainly afford a range of discretion in determining how to effectuate the jury's statutory right to "have read to them from the court reporter's notes" the testimony in dispute. TEX. CODE CRIM. PROC. art. 36.28. While I do not necessarily endorse Gandy's view that it would be within the "inherent" power of a trial court to act in a way that is contrary to plain statutory dictates, I do regard Gandy to be emblematic of the Court's long history of reading the statute to afford a trial court fairly broad discretion in fashioning an appropriate Article 36.28 response. After all, before discussing the trial court's "inherent" power, the Court in Gandy first declared that the procedure followed in that case was "in substantial accord" with the statute as it read at that time, though it obviously did not follow the statutory procedure to the letter. 97 Tex. Crim. at 336, 261 S.W. at 146.
See id. § 19.02(b)(1).
In making its "structural error" argument, the dissent maintains that, unless the court reporter reads the transcript aloud to the jury in open court, the parties will be unable to correct any errors the court reporter may make in reading it. Dissenting Opinion at 3. This seems a rather circular argument. If the court reporter does not read the transcript aloud, and the jury is instead permitted to read the transcript for itself, then there can be no occasion for the court reporter to misread it in the first place, and nothing for the parties to object to in the courtroom. Moreover, should a transcript delivered to a jury pursuant to Article 36.28 incorrectly reflect the testimony that was given at trial, then that would provide an independent ground upon which to object that would go beyond any concern about the procedure chosen by the judge for effectuating the jury's statutory right under that article.
See id. at §§ 19.04(a), 19.05(a).
See id. at § 19.02(b)(2).
D. Appeal
The court of appeals originally affirmed the trial court's judgment but later granted rehearing and reversed the conviction. The court held that Article 36.28 of the Code of Criminal Procedure allowed the oral readback of the court reporter's notes concerning disputed testimony but did not authorize giving the jury a written transcript. The court further held that Appellant was harmed by the error under the standard for nonconstitutional errors.
Stredic v. State, 609 S.W.3d 257, 259 (Tex. App.-Houston [14th District] 2020) (op. on reh'g).
Id. at 260.
Id.
The court of appeals concluded that the crucial issue in the case was Appellant's mental state at the time of the shooting and that the jury's note showed that it was concerned about that issue.The court believed that reading back the testimony would have properly struck a balance between the trial court commenting on the weight of the evidence and providing the jury with information needed to resolve a factual dispute but that providing transcripts tipped the balance in the State's favor. The court found that to be especially the case because appellant's testimony "indicated he could not maintain a consistent story about what happened and what he felt during the incident, i.e., his culpable mental state." The court further observed that "[w]ithout invading the role of the jury, we can never know for sure what influenced this jury in making its verdict, given the almost impenetrable wall surrounding deliberations." The appellate court concluded that it was not convinced that the trial court's actions did not influence the jury or had but very slight effect.Instead, the court harbored grave doubts about whether the error substantially influenced the jury's decision to find appellant guilty of murder instead of a lesser-included offense.
Id.
Id. at 263.
Id. at 264.
Id.
Id.
Id.
In a supplemental opinion, the court of appeals addressed an argument by the State that Article 36.28 did not prohibit the trial court from submitting a transcript to the jury, and anything not specifically prohibited by the Code of Criminal Procedure was permitted. The court of appeals held that, even if the State's view about the Code of Criminal Procedure was generally correct, "it would require an implausible reading of article 36.28 to apply it here." The court observed that though the statute "does not spell out all of the potential ways the jury is not allowed to review the testimony of a witness, it is not difficult to connect the dots and conclude that procedures not authorized by the plain language of the article are prohibited." The court of appeals concluded that "adopting the State's theory would render article 36.28 a nullity, a toothless provision merely containing two examples of ways in which testimony possibly might be provided to the jury, as opposed to delineating the only two ways the jury is permitted to receive it."
Id. at 270 (supp. op. on reh'g).
Id.
Id.
Id.
II. ANALYSIS
A. Error
Article 36.28 provides:
In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other; but if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial.
This statute authorizes testimony to be read back, or if that is not possible, bringing back the witness to repeat the testimony. The statute does not purport to authorize submitting a transcript to the jury.
The State contends that the trial court still has discretion to submit transcripts to the jury because no statute prohibits such a practice. Relying upon Milton v. State, the State argues that a trial court need not have statutory authorization for its conduct during trial; as long as nothing prohibits the conduct, the trial court may act. In Milton, this Court held that, within certain limitations, a trial court could permit the use of visual aids during closing arguments. The State argues that we allowed this practice despite the absence of any statute authorizing it.
572 S.W.3d 234 (Tex. Crim. App. 2019).
Id. at 241-42.
We agree that a practice at trial is not necessarily prohibited simply because it is not authorized by statute. And it is not necessarily prohibited just because a statute that authorizes certain procedures does not authorize the procedure in question. In Marx v. State, we addressed whether Article 38.071, authorizing testimony by closed-circuit video in certain circumstances, prohibited testimony by closed-circuit video in circumstances not authorized by the statute. In concluding that the statute did not prohibit other procedures, we quoted with approval from a concurring opinion by Judge Benavides in a prior case:
987 S.W.2d 577, 582 (Tex. Crim. App. 1999).
[T]he only permissible interpretation of the statute, no matter how counterintuitive, is that it prescribes a specific alternative testimonial procedure under certain defined circumstances, leaving the courts free to develop different procedures under other circumstances, constrained only by constitutional prohibitions.
Id. at 582-83 (quoting Gonzales v State, 818 S.W.2d 756, 768 (Tex Crim App 1991) (Benavides, J, concurring)).
We have also contrasted the limited and special jurisdiction that a trial court has after conviction with the "general jurisdiction" that a trial court has during trial. Certain statutes expand a trial court's jurisdiction after conviction, "but only to the extent prescribed by the statute." By implication, while the trial court has "general jurisdiction," it has authority to act even when not prescribed by statute.
See Ex parte White, 506 S.W.3d 39, 51 (Tex. Crim. App. 2016) (discussing State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App. 2002)).
Id.
But we conclude that Article 36.28 does prohibit the submission of transcripts to the jury. The statute says that the jury "may" have testimony read back under certain circumstances. This use of "may" here is not to confer discretion but to describe what is permitted. That itself is not conclusive, but other aspects of the statute convince us that the statutory permission here excludes other procedures. The statute provides a precondition for reading back testimony-a jury dispute ("if the jury disagree"). Then it makes exclusive what testimony can be read-only the point in dispute ("that part of such witness testimony or the particular point in dispute, and no other") (emphasis added). Then it prescribes an exclusive alternative to reading back testimony-bring the witness to repeat the testimony if reading it back is not possible ("but if there be no such reporter, or if his notes cannot be read . . ."). All of these restrictions indicate that Article 36.28 provides the exclusive procedure for repeating earlier testimony to the jury.
See May, Black's Law Dictionary (11th ed. 2019) (definition 1) ("To be permitted to").
If Article 36.28 were construed to not provide the exclusive procedure, then one could imagine the trial court causing testimony to be read back even when there is not a dispute, or submitting to the jury testimony that is not in dispute, or causing a witness to repeat testimony even when the court reporter's notes are available to be read back. No one would seriously contend that a trial court is permitted to do these things. Article 36.28 dictates when testimony can be repeated to the jury (if there is a dispute), what testimony can be repeated to the jury (the testimony in dispute), and how testimony can be repeated to a jury (by reading it back, or if that is not possible, by having the witness repeat the testimony). Submitting transcripts violates the "how" restriction in Article 36.28, and consequently, is not permitted.
With respect to jury instructions, we have said, "[e]ven a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention." While reading back testimony under Article 36.28 necessarily draws some special attention to evidence, the statute specifically authorizes that procedure. But supplying a transcript draws even more attention to such evidence, and because it is not authorized by statute, it could potentially constitute an impermissible comment on the weight of the evidence.
Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008).
See Tex. Code Crim. Proc. arts. 38.05, 36.14 (prohibiting comments on the weight of the evidence). The concurring opinion relies on Gandy v. State, 97 Tex. Crim. 334, 336, 261 S.W. 145, 146 (1924), which allowed the court reporter's notes to be read when a witness could not be brought back to repeat testimony. Gandy differs from the present case in at least two ways. First, the statute in Gandy provided only a single method of repeating testimony, without outlining an alternative method. See id. at 335, 261 S.W. at 145; Tex. Code Crim. Proc. art. 755 (1911). The fact that the current statute includes an alternative makes it more obvious that the methods in the current statute are exclusive. Second, the procedure in Gandy allowing the court reporter's notes to be read back did not risk emphasizing the testimony any more than bringing the witness back to repeat it. But submitting a transcript to a jury does risk emphasizing the testimony more than having the court reporter's notes read back.
B. Harm
Because the error at issue is solely a statutory violation, the Rule 44.2(b) standard of harm for nonconstitutional errors governs the analysis. Under that standard, an error that does not affect substantial rights must be disregarded. An error affects substantial rights only if it has a substantial and injurious effect or influence in determining the jury's verdict. Put another way, an error does not affect substantial rights if an appellate court has fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect.
See Tex.R.App.P. 44.2(b). The dissent contends that the statutory error in this case is "structural" and, consequently, reversible without regard to harm. But in Cain v. State, we held that only federal constitutional errors can be structural. 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) ("Except for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis."). We reaffirmed that principle just last year. Do v. State, 634 S.W.3d 883, 896-97 (Tex. Crim. App. 2021) ("If an error is 'structural,' it is exempt from a harm analysis. But only federal constitutional errors can be structural, and most are not."). Following Cain, we have also held that, "when only a statutory violation is claimed, the error must be treated as non-constitutional for the purpose of conducting a harm analysis, and that necessarily means the error cannot be deemed 'structural.'" Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005).
Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
Id.
In Green v. State, we addressed whether a defendant was harmed by a jury instruction that was an accurate statement of the law but was an impermissible comment on the weight of the evidence. There, the trial court included in the jury charge legally accurate definitions of "penetration" and "female sexual organ," but they should not have been included because they were not defined by statute. In the course of concluding that the error was harmless, we pointed out "[b]ecause penetration of the complainant's sexual organ was a critical element of the offense, the jury was already focused on the evidence pertaining to penetration." We also cited an earlier case that found an impermissible comment to be harmless because the advocates "focused the jury's attention quite competently on the disputed issue." We also pointed out that the instructions were "largely redundant of the information that was already before the jury" through witnesses and the State's argument.
476 S.W.3d 440 (Tex. Crim. App. 2015).
Id. at 446-47.
Id. at 447.
Id. at 448.
Id.
The case before us is not on all fours with Green, but the reasoning from that case is relevant here. As the court of appeals observed, the potential harm from submitting transcripts to the jury is the harm that would flow from a comment on the weight of the evidence. To some degree, the mere repetition of testimony to the jury results in emphasizing the evidence-even if that testimony is merely read back. Submitting a transcript increases the emphasis, but we are not comparing a trial in which testimony was emphasized to a hypothetical trial in which it was not. Instead, we are comparing the relative emphasis of providing a transcript versus reading testimony back to the jury, and we are assessing whether the additional emphasis resulted in harm.
The only contested issue at trial was Appellant's mental state. Was the shooting an accident or was it intentional? Part of the State's argument that the shooting was intentional was that Appellant's statements lacked credibility. The State's position was that there was no argument between Appellant and the two men who were shot and that the two men did not act aggressively toward Appellant. The State argued that guns do not just fire on their own and that the video contradicted Appellant's version of events. The State also claimed that Appellant's statement that he was in fear conflicted with his statement that the shooting was an accident.
If some of the jurors were confused about whether Appellant claimed in his testimony to have felt threatened by Barriere and Harris, a read-back of the testimony would have cleared that up. Even if the jurors would not have remembered the specifics of the testimony without a transcript, it would have surely taken from a read-back the answer to its question-that Appellant claimed to have felt threatened by the two men. If Appellant's mere claim that he felt threatened ruined his credibility regarding whether the shooting was an accident, then reading back the testimony would have accomplished that. We see nothing about the jurors having the transcript that would have placed Appellant in a worse position in that regard.
If, on the other hand, the jurors were concerned with whether there was an inconsistency regarding the specifics of Appellant's claims, having the transcript actually benefitted Appellant. We disagree with the court of appeals's conclusion that Appellant's story was inconsistent. Appellant claimed that Barriere and Harris acted aggressively towards him, that their aggressive actions made him feel threatened, that he pointed his shotgun at them as a result, that pointing the shotgun was intended only to scare them, and that the shotgun went off accidentally. This story was completely consistent. With the transcript in hand, the jury could carefully review his testimony and ascertain that Appellant's story was in fact consistent.
Having the transcript also benefitted Appellant by providing the jury with a memorialization of his story. The jury requested and received the surveillance video, which it could play over and over again. The State emphasized the surveillance video in closing arguments while defense counsel never argued that the surveillance video footage supported the defense theory of the case. The video did not capture what was said between Appellant and the other two men, what happened between Appellant and Barriere is obscured by the open trunk, and Harris does move suddenly toward Appellant after Barriere is shot. But on the videos, Appellant appears to act deliberately in approaching and shooting Barriere, and the videos show Appellant acting aggressively several times in advancing on Harris while pointing the shotgun. And Appellant's return to the scene and shooting Harris strongly suggests Appellant was the aggressor during the entire incident. The transcripts served as a counterpoint to the video in the jury room by giving the jury an exculpatory version of the story that the jury could review over and over.
Appellant contends that he was harmed because the transcript indicated that Barriere was walking away from him when the gun was discharged. He claims that this evidence tended to show that he was not in fear at the time of the gun's discharge. He further claims that this strengthened the State's case. Appellant is mistaken about what the submitted portions of the transcript indicated. According to the transcript, Barriere was approaching Appellant when the shotgun fired the first time, hitting Barriere. It was Harris who was backing away. Appellant also testified consistently in the transcript excerpts that Harris was advancing on him when he shot Harris. Again, having the transcript potentially benefitted Appellant. Had the testimony merely been read back, perhaps the jury could have forgotten whether Appellant's testimony had Barriere or Harris backing away when Appellant shot Barriere. But with the transcripts in hand, the jury would have realized that Appellant claimed only that Harris was backing away when Barriere was shot.
Under the circumstances, we have a fair assurance that submission of the transcript, as opposed to merely reading back the testimony, did not influence the jury, or had but a slight effect. We therefore conclude that the error was harmless under the standard for nonconstitutional errors. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Yeary, J., filed a concurring opinion in which Slaughter, J., joined.
I am less sure than the Court that submitting a transcript of the disputed testimony in this case was impermissible under Article 36.28 of the Texas Code of Criminal Procedure. Majority Opinion at 13; Tex. Code Crim. Proc. art. 36.28.1 The Court fails to address the State's substantial argument that the history of the statute favors a construction of the statute different from the Court's. And I cannot agree with the Court's suggestion that submitting a transcript of the disputed testimony constituted an impermissible comment on the weight of the evidence. Because the transcript was both accurate and responsive to the jury's certified dispute, and because the jury expressly requested the transcript, I cannot conclude that it was a comment on the weight of the evidence at all, much less an impermissible comment on the trial court's part. Majority Opinion at 14.
I do agree, however, that any error was harmless in this case, if not for the reasons the Court articulates, Majority Opinion at 14-18, then for a much more fundamental reason. Because the transcript was both accurate and responsive to the dispute, and because the jury expressly asked to have it, submitting it to the jury could not have adversely affected Appellant's substantial rights, in my view, and for that reason alone, any error in submitting it to the jury must be disregarded. Tex.R.App.P. 44.2(b). On these bases, I concur in the result.
I. The Current Statute
Article 36.28 describes what a jury "may" obtain to settle a disagreement about a witness's statement. Tex. Code Crim. Proc. art. 36.28. It does not, at least on its face, even purport to speak to the range of permissible responses to that dispute that a trial court must make. It explains that the jury "may, upon applying to the court, have read to them from the court reporter's notes" the testimony in dispute. Id. The statute simply does not say who must necessarily read to the jury from the court reporter's notes, where the reading of those note must necessarily take place, or even how many times the notes may or may not be read or re-read. Contrary to the view taken by the Court, the statute seems to me to vest quite a bit of discretion in the trial court to determine how to carry out its duty. Does a trial court in fact lack discretion, then, even to send a transcript of the disputed testimony to the jury room and direct the foreperson to read it aloud? Would this really fail to satisfy the statute?
The Court says that Article 38.26 is so explicit about the "when," "what," and "how" of the procedure-the "preconditions" for responding to a jury dispute-that it must be regarded as binding and exclusive. Majority Opinion at 13. The Court expresses concern that, were it otherwise, trial courts would have unfettered discretion to ignore the prerequisites for a jury to obtain a readback of witness testimony, such as that the jurors must actually have a dispute about it. Id. Or a trial court could, with impunity, have the court reporter also read back other testimony not in dispute; or bring the witness back to testify in person even though the court reporter's notes are readily available. Id. These concerns seem utterly unfounded to me.
These "when" and "what" restrictions have always been in the statute, essentially unchanged; whereas, the "how" has undergone revision over the years. And this Court has always regarded various trial court innovations and improvisations with respect to the "how" of the procedure with a high degree of tolerance, mindful of the exigencies of individual cases. This history causes the State to believe-with more than a little justification-that a trial court should not necessarily be bound in its response to a jury dispute to the particular "how" methods that the Court seems now to prefer; that there is, in short, some judicial wiggle room in the language of Article 36.28. And its argument seems to have some support both in the history and in the text of the law.
II. The History of Article 36.28
The starting point for determining statutory meaning is to examine both the literal text and its context; and part of the statutory context includes the history of the statute in question. Timmons v. State, 601 S.W.3d 345, 348, 354 & n.50 (Tex. Crim. App. 2020) (citing Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 256 (2012)). Predecessors to present-day Article 36.28 go all the way back to the so-called "Old Code" of Criminal Procedure of 1857. Article 615 of the Old Code provided that when jurors disagreed about the testimony of a particular witness, they could apply to the trial court to have that witness brought back on the witness stand "to detail" his testimony as to the subject of the disagreement "and no other;" and to do so in the same language as he had testified "as nearly as he can."2This original provision spelled out no other process for revisiting disputed testimony; nor did it address what a trial court should do in case the witness has become unavailable since he testified.
The statute was recodified in subsequent Codes without substantive change, in 1879 (Article 697), 1895 (Article 735), 1911 (Article 755), and 1925 (Article 678). Not until 1953 was then-Article 678 of the 1925 Code of Criminal Procedure amended so that, for the first time, it expressly provided that read-back of the court reporter's notes should be the principal and preferred method for resolving a jury disagreement, and that witness recreation of testimony in open court "as nearly" as possible is now the fallback method. Acts 1953, 53rd Leg., ch. 373, § 1, eff. June 8, 1953.
Up until the 1953 amendment, trial courts often had to improvise, especially when confronted with witnesses about whose testimony the jury disagreed who were no longer available to reproduce their testimony in person. In Clark v. State, 28 Tex.App. 189, 12 S.W. 729 (1889), the witness had actually died before trial, and his deposition testimony was read to the jury. When, during protracted deliberations, the jurors wanted to hear this testimony read again, the trial court permitted it. The Texas Court of Appeals (this Court's predecessor) upheld that ruling, observing:
We have no statute expressly providing for the reading of the written testimony or deposition of a witness when the jury have disagreed as to such testimony. When the witness has testified orally he can be recalled to the stand, and directed to detail his testimony again to the jury as to the particular point of disagreement, and no other. Code Crim. Proc. art. 697. Where the evidence is by deposition in writing, taken on examining trial, we can see no good reason why, if the jury so desire, they cannot have it reread to them when they have disagreed about it. Such written testimony cannot be easily altered, and, at all events, it is to be presumed that it has not been altered until the contrary is shown, and where this is not done we cannot see how its being reread in the same identical language could mislead the jury or unjustly prejudice the defendant. We are unable to see that any error has been committed, or any wrong done the defendant in this regard, as the same appears in the bill of exception.Clark, 28 Tex.App. at 197, 12 S.W. at 731-32. In Clark, the situation was not actually governed by Article 697, since it did not involve the reproduction of oral testimony. See also Orner v. State, 78 Tex. Crim. 415, 421-22, 183 S.W. 1172, 1175 (1916) (in a case also involving the read-back of prior testimony that had been introduced during trial, this Court followed Clark to hold that "no reversible error is shown"). But in the following decades, this Court relied on Clark to approve of the read-back of court reporter's notes even in cases involving jury disputes about oral testimony, notwithstanding the fact that this method of resolving jury disagreement was not then mentioned in the statute.
In Gandy v. State, 97 Tex. Crim. 334, 334-35, 261 S.W. 145, (1924), the jury applied to the trial court to have read back the testimony of a witness who was no longer available to reproduce his testimony from the witness stand, in strict accordance with the statute. Over the appellant's objection, the trial court allowed the court stenographer to read back the testimony in dispute, and the appellant complained about it on appeal. Id. Rejecting this complaint, the Court observed:
[Then-]article 755, providing for the reproduction of the testimony of a witness by letting him repeat his former testimony, was enacted before the use of stenographers became general, and before the court stenographer became an officer of the court. It is believed that the procedure followed was in substantial accord with article 755, C.C.P., supra. If, however, the procedure followed was not within the purview of the statute mentioned, it was within the inherent power of the court to have the court reporter read, in the presence of the court, the appellant, and his counsel, the official record of the testimony in question. Moreover, there is no claim that in the stenographer's reproduction of the testimony there was any inaccuracy or departure from the testimony of the witness, given upon the stand, and which he would have given, had he been called. Under the circumstances, there is an absence of injury, and a reversal should not result from the action taken.Id., 97 Tex. Crim. at 335-36, 261 S.W. at 146.
In the ensuing years, this Court relied on Gandy to deflect similar claims of error in failing to follow the exact dictates of the statute- sometimes somewhat summarily, as in Woods v. State, 10 S.W.2d 90 (Tex. Crim. App. 1928). There, the jury had also expressly requested that the stenographer's notes be read back to them, and the Court simply observed that "[t]he reading of the stenographer of his notes was, under the circumstances, upheld in Gandy's Case[.]" See also Box v. State, 27 S.W.2d 538, 539 (Tex. Crim. App. 1930) ("Under certain circumstances, the reading of the stenographer's notes in open court in the trial of a case has been given sanction by this court.") (citing Gandy as well as a pre-Gandy case, Byrd v. State, 90 Tex. Crim. 418, 423-24, 235 S.W. 891, 893-94 (1921), in which the read-back of the stenographer's notes to settle a jury dispute was treated as, if not routine, then at least unremarkable).
In Moore v. State, 99 S.W.2d 915 (Tex. Crim. App. 1936), the jury sought to rehear testimony from a witness who had been excused and had returned to his home in a nearby county. Rather than try to retrieve the witness, the trial court had the official court reporter read back the disputed testimony from his shorthand notes. Id. at 916. Relying on the statute as well as Gandy's construction of it, this Court simply declared that "Appellant's objection to the procedure in question was properly overruled." Id. And an even greater departure from the literal language of the statute came in Cranfill v. State, 235 S.W.2d 146 (Tex. Crim. App. 1950). There, the Court concluded that, in allowing the jury to resolve its dispute with respect to the testimony of a released witness by listening to a tape recording of the testimony in issue, "[t]he careful trial court seems to have followed the rule laid down in [then-]Art. 678, Vernon's C.C.P." Id. at 147.
And in a pre-1953-amendment case that the State contends is very close on point to the present case, the trial court actually sent a transcript of an absent witness's disputed testimony "into the jury room[.]" Miller v. State, 79 S.W.2d 328, 330 (Tex. Crim. App. 1935). As in Clark, the witness in Miller had not actually testified in person at trial, but a transcript of his testimony from the examining trial was admitted during the State's case. Id. at 329. The jury then requested to see the transcript during its deliberations, over the appellants' objection that "the jury should have been brought into open court and the same should have been given to the jury in open court." Id. at 330. In declining to reverse the conviction for this alleged violation of the statute, this Court observed:
It occurs to us that under [then-]article 678, C.C.P., the jury, if they disagree as to any statement of the witness, could apply to the court to have such witness recalled and have him repeat his testimony on the disputed point, or, in case he was not available, to have his testimony reproduced by the court reporter. While the matter may not have been exactly regular, yet no injury is shown to have resulted to the appellant. If the court had brought the jury into the courtroom and the testimony had been read to them by the reporter, such action would have been in compliance with article 678, C.C.P. The mere fact that the court at the request of the jury permitted the transcript to go into the jury room to be read by the jury themselves would in and of itself not be reversible error, unless the appellants could show some injury to themselves by said action of the court. No injury being shown as a result of such action, it occurs to us that the bill of exception fails to show such error as would require a reversal of this case.Id. Miller differs from the instant case insofar as it involved submitting a transcript to the jury of testimony that had already been presented in written form during the trial itself, rather than submitting a transcript of oral testimony from trial. Most remarkable about the opinion is its assertion that to have read the testimony in open court "would have been in compliance with" the statute, id., even though that procedure for resolving jury disputes does not conform to the literal parameters of the statute as it then existed.
In 1953, the Legislature formally adopted that procedure- reading a transcript of the oral testimony from trial-as the preferred judicial response to a jury certification that it disagrees about a witness's testimony as to a certain matter. The original procedure of recalling the witness to the stand to reconstruct his trial testimony as closely as possible was now made the secondary procedure, to be used only in the event that "there be no [court] reporter, or if his notes cannot be read to the jury[.]" Acts 1953, 53rd Leg., ch. 373, § 1, eff. June 8, 1953. The 1953 amendment to codify the readback procedure shows more than just a legislative tolerance for this Court's past judicial improvisations. It adopted an innovation that this Court had approved as the preferred method for addressing jury disputes, which innovation was then re-codified in the 1965 Code of Criminal Procedure. Acts 1965, 59th Leg., vol. 2, ch. 722, p. 317, eff. Jan. 1, 1966.
III. The State's Argument
From this history, the State argues that it would be inappropriate to suddenly begin to construe the statute to flatly prohibit further innovation, such as submitting an accurate and responsive transcript of the disputed testimony (as was done in Miller-albeit not a transcript of oral testimony, but of examining trial testimony that was submitted to the jury during the course of trial). The State argues at length that the statute's history serves as a context from which it should be apparent that it has never been, and therefore should not now be, construed to bar other methods of responding to a jury disagreement. State's Brief at 24-33. And, indeed, in Gandy, this Court observed that, even if the trial court lacked authority under the statute to have the court reporter read his notes back to the jury to resolve a disagreement, it was nevertheless "within the inherent power of the [trial] court" to do so. Id. at 28 (quoting Gandy, 97 Tex. Crim. at 336, 261 S.W. at 146).3 Given this history, the State argues, we should not interpret the lack of explicit authorizing language in Article 36.28 to prohibit trial courts from pursuing appropriate innovations. The Court does not address this substantial argument.
IV. Did the Trial Court Violate the Law?
I am not as sure as the Court is that the literal terms of the present statute were not followed in this case. Texas Code of Criminal Procedure Article 36.28 explains that a jury "may, upon applying to the court, have read to them from the court reporter's notes" the testimony in dispute. Tex. Code Crim. Proc. art. 36.28. Undoubtedly, by giving the jury a transcript of the court reporter's notes, the trial court ensured that the members of the jury would "have read to them . . . that part of such witness testimony or the particular point in dispute, and no other." Id. Nothing in the statute says: (1) who must do the reading, (2) where the reading must be done, or (3) how many times the jury may have the testimony read to them. Id. Thus, the statute at least arguably does not preclude the circumstances presented in this case at all: the disputed testimony seems to have been read to the jury, by the jurors themselves, in the room in which their deliberations took place, as often and as carefully as they believed was necessary to resolve their dispute.
V. Harmless Error
In any event, also considering the history of the Court's past applications of Article 36.28 and its predecessors, I am convinced that any error in failing to follow the exact letter of the statute in this case did not affect Appellant's substantial rights. Acceding to a jury's express wish for an accurate transcript of only the testimony the jury has indicated it has a dispute about is actually the best possible way to implement the manifest purpose of the statute, and if it is nevertheless error to do so because the statute does not expressly authorize it, that error cannot be thought to affect a defendant's substantial rights.
Violations of Article 36.28 are not constitutional in nature, so this Court has said that Rule 44.2(b) applies, under the terms of which an appellate court must "disregard" any error that cannot be said to affect the substantial rights of the defendant. Thomas v. State, 505 S.W.3d 916, 925 (Tex. Crim. App. 2016). The Court has also said that Article 36.28 "seeks to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have." Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005). As far as I am concerned, when a trial court submits an accurate and responsive transcript of the testimony of a witness-about which the jury has certified a disagreement, and where the jury itself has expressly requested the transcript-the trial court's action does not skew the balance in any way against the defendant.
There can be no greater means for the jury to resolve a disagreement about the testimony of a particular witness than to provide it with an actual transcript of the testimony pertaining to the particular matter it has certified to be in dispute. So long as all parties agree that the transcript accurately reflects what the testimony was, and that it is responsive to the disagreement certified, it offers an optimal means of addressing the jury's need to faithfully revisit the witness's statement.4 It will also, hopefully, have the added benefit of settling the dispute, which is without question the evident purpose of Article 36.28 in the first place. See Tex. Code Crim. Proc. art. 36.28 (providing procedures that the jury or a court "may" employ "if the jury disagree as to the statement of any witness") (emphasis added).
On the other side of the balance, simply providing the jury with a cold transcript of the disputed testimony minimizes any concern about judicial intervention that might tend to suggest some view of the evidence the judge thinks the jury should take. As the prosecutor in this case observed, this is particularly so when it is the jury itself that has explicitly requested to be provided with a transcript. Under these circumstances, the judge has not foisted a selected excerpt upon the jury in such a way as to suggest that the judge has any opinion about the proper resolution of the jury's disagreement. He has simply acceded to the jury's explicit request. Moreover, for the trial court to give the jury exactly what it requested (where it is otherwise appropriate to do so under the conditions of the statute) calls no undue attention to particular testimony the jury has not manifestly focused on anyway, and it cannot (contrary to the Court's suggestion today) constitute a judicial comment on the weight or importance of that evidence.
VI. Conclusion
I would conclude that the trial court's actions in this case have not been shown to be in violation of the statute. I would also conclude that, under these circumstances, submitting an accurate and responsive transcript-even if it did exceed the trial court's authority to do so under the strict language of the statute (and I reject the Court's conclusion that it did)-cannot possibly have compromised the substantial rights of the defendant. It cannot, therefore, be deemed to be reversible error under Rule 44.2(b).
I respectfully concur in the result.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
I agree with the Court that sending a written transcript of disputed testimony to the jury room in response to the jury's request, instead of having the court reporter read the testimony back to the jury as prescribed by article 36.28 of the Code of Criminal Procedure, was error. But I disagree with the Court's conclusion that the error was harmless and that the court of appeals erred in reversing. The error is a structural one that cannot be evaluated for harm and must be reversed. I believe the court of appeals did the right thing, and its judgment should be affirmed. I respectfully dissent.
I - Structural Error
As the United States Supreme Court explained in Weaver v. Massachusetts, "'the general rule [is] that [even] a constitutional error does not automatically require reversal of a conviction.'" 137 S.Ct. 1899, 1907 (2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). "If the government can show 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,' . . . then the error is deemed harmless and the defendant is not entitled to reversal." Id. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). But some errors, known as structural errors, "should not be deemed harmless beyond a reasonable doubt." Id. Structural errors defy analysis by harmless error standards. Id. at 907-08; see also Fulminante, 499 U.S. at 309.
In Weaver, the Supreme Court identified "at least three broad rationales" for "[t]he precise reason why a particular error is not amenable to [harmless error] analysis-and thus the precise reason why the Court has deemed it structural[.]" 137 S.Ct. at 1908. First, an error can be deemed structural "if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest." Id.; see, e.g., McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (right to self representation); Weaver, 137 S.Ct. at 1910 (right to public trial).
Second, an error can be deemed structural "if the effects of the error are simply too hard to measure." Weaver, 137 S.Ct. at 1908. "For example, when a defendant is denied the right to select his or her own attorney, the precise 'effect of the violation cannot be ascertained.'" Id. (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006)). Because it is "almost impossible to show that the error was 'harmless beyond a reasonable doubt,' . . . the efficiency costs of letting the government try to make the showing are unjustified." Id. (quoting Chapman, 386 U.S. at 24). Similarly, "a public-trial violation is structural for [that] reason: because of the 'difficulty of assessing the effect of the error.'" Id. at 1910 (quoting Gonzalez-Lopez, 548 U.S. at 149 n.4).
Third, an error can be deemed structural "if the error always results in fundamental unfairness." Id. at 1908; see, e.g., Gideon v. Wainwright, 372 U.S. 335, 343-345 (1963) (right to an attorney); Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (right to a reasonable-doubt instruction).
These three categories "are not rigid. In a particular case, more than one of these rationales may be part of the explanation for why an error is deemed to be structural." Weaver, 137 S.Ct. at 1908. "For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case." Id. The inability to assess harm can be the reason a structural error occurs. Id.
II - Giving A Transcript Instead Of Reading It Is Structural Error
Although a violation of article 36.28's prescribed method of reading the testimony back to the jury is not a constitutional error, it should be considered a structural error because of the second rationale for categorizing errors as structural identified in Weaver. There is no way to evaluate the harm resulting from the violation.
When the jury informs the trial court that it has a disagreement about the trial testimony, under the process prescribed by article 36.28 in which the court reporter reads the testimony to the jury, we are well-assured that each and every juror hears an accurate rendition of the testimony. The court reporter's reading of the record to the jury occurs in open court in front of the parties and the trial judge. Accordingly, any mistake or impropriety in the reading will also occur in open court where the parties can object, the trial court can correct the problem, and there will be a record for appeal showing any differences between the court reporter's reading to the jury and the original trial testimony that the jury disagreed about. The court of appeals can then assess harm caused by any inaccuracies.
In contrast, when the response is to send a copy of the transcript into the jury room-while the transcript itself could be accurate-we have no assurances that each and every juror hears an accurate rendition of the testimony. Who received the transcript? Was the transcript shared between all of the jurors? Were only some of the jurors able to see the transcript for themselves? Or did the person who received the transcript first have exclusive control over it? If so, did that person read the transcript out loud, verbatim, to the rest of the jury? Or did he read it silently to himself, and then told the jury his understanding of the transcript? If so, how do we know if his understanding was accurate or if he even told the truth?
Even if twelve copies of the transcript go into the jury room, how can we be assured that all twelve jurors were given equal opportunity to read the material? Were the slower readers pressured to stop reading part of the way through? Or were they even given access to the copies? If not, did the person who received the twelve copies simply fail to hand them out to the rest of the jury? Or could he have deliberately withheld the copies and falsely told the other jurors that there was only one copy?
At the heart of the problem-and the reason we cannot assess harm-is the fact that we can never know the answers to these questions, and we certainly cannot correct any improprieties. With two exceptions, any evidence regarding what goes on in the jury room during deliberations is absolutely inadmissible. Texas Rule of Evidence 606(b) provides:
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a
juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify:
(A) about whether an outside influence was improperly brought to bear on any juror; or
(B) to rebut a claim that the juror was not qualified to serve.Tex. R. Evid. 606(b). A copy of the transcript is neither an outside influence nor does it relate to a juror's qualifications to serve. Therefore, we cannot know what happened with the transcript in the jury room or what effect-what harm-any improprieties might have had on the verdict.
The reading of the transcript occurs behind closed doors away from the view of the parties and the trial judge. If there is any mistake or impropriety in the reading, the parties cannot object, the trial court cannot correct the problem, and there will not be any record for appeal showing any differences between the reading of the transcript and the original that the jury disagreed about. The method the Court lets stand today has no assurances, and there is no way for an appellate court to accurately assess harm. The error is structural, even if it did not cause fundamental unfairness in Appellant's case. See Weaver, 137 S.Ct. at 1910.
III - Conclusion
In sum, I agree with the Court that sending a copy of the transcript into the jury room was error. But I disagree with the Court's decision to assess the error for harm. What happened was structural error that is not subject to harm analysis and must be reversed. The court of appeals correctly reversed the error. Respectfully, I dissent.