Judgment of November 26, 2019 Withdrawn; Motion for Rehearing Granted,
Motion for En Banc Reconsideration Denied as Moot; Reversed, Remanded,
and Majority, Concurring, and Dissenting Opinions on Rehearing filed August
13, 2020.




                                       In the

                       Fourteenth Court of Appeals

                               NO. 14-18-00162-CR

                   VINCENT DEPAUL STREDIC, Appellant
                                         v.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1530454

                  DISSENTING OPINION ON REHEARING

      Without question the trial court made a very basic error, but I disagree with
the majority’s conclusion that the error in this murder case was harmful. Appellant
does not contend that the transcript of testimony provided to the jury was erroneous,
incomplete, or otherwise improper. The trial court did not unduly emphasize the
evidence by simply giving the jury what it asked for. The majority fails to consider
the entire record in conducting its harm analysis. For these reasons, I respectfully
dissent.

                                      ANALYSIS
      “[T]he purpose of Article 36.28 is ‘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.’” Thomas v. State, 505 S.W.3d 916, 923
(Tex. Crim. App. 2016) (quoting Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim.
App. 2005)). “An appellate court should not disturb a trial court judge’s decision
under Article 36.28 unless a clear abuse of discretion and harm are shown.” Id.

      Error under Article 36.28 is non-constitutional and subject to a harm analysis
under Rule 44.2(b). Id. at 924–25; see Tex. R. App. P. 44.2(b). Therefore, we must
disregard the error if it does not affect appellant’s substantial rights. See Tex. R.
App. P. 44.2(b). “A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” Thomas, 505 S.W.3d
at 926 (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). Thus,
we must ask whether the error itself had a substantial influence on the verdict. See
id. A proper harm analysis requires a review of the entire record, including the
weight of the evidence of the defendant’s guilt. Id. at 927. And, we must consider
the character of the error. Id.

      Appellant does not contest that Article 36.28 applied or that the jury disagreed
about the testimony. Appellant does not contend that the jury required additional or
less testimony to resolve its disagreement. Nor does appellant dispute the content or
accuracy of the transcripts. Indeed, appellant had “[n]o objection to the content that
will be provided in response to the jury’s question.” Rather, appellant argues that the
jury’s review of the testimony in written form “may have substantially swayed the
jury to believe that Mr. Stredic’s shooting of Mr. Barriere was intentional or

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knowing.” Appellant contends, “If not for the emphasis on this testimony, the jury
may quite possibly have found Mr. Stredic guilty of only manslaughter or criminally
negligent homicide.”

       Here, it was the jury—not the trial court—that emphasized the importance of
the disputed testimony by requesting the court reporter’s notes. It was the jury that
faced disagreement regarding what appellant’s testimony revealed about his intent.
Judging the facts, believing or disbelieving witness testimony, and resolving
conflicts in the evidence all fall squarely and exclusively within the role of the jury
as fact finder. Jackson v. State, 105 S.W.3d 321, 327 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d). Accordingly, the jury properly asked the trial court to help it
resolve a factual dispute. See Tex. Code Crim. Proc. art. 36.28; Thomas, 505 S.W.3d
at 923.

       The jury received the same excerpts of appellant’s testimony that properly
would have been read aloud. The majority cites no authority holding that the method
of communicating evidence to the jury during deliberations—written transcript
rather than oral readback—amounted to undue emphasis of the testimony sufficient
to undermine the jury’s verdict. The only Texas authority is to the contrary. See
Miller v. State, 79 S.W.2d 328, 330 (Tex. Crim. App. 1935) (regarding predecessor
statute, “The mere fact that the court at the request of the jury permitted the [trial]
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.”); Higdon v. State, 764 S.W.2d 308, 310 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d) (holding that the appellant was not
harmed when the trial court sent a particular witness’s testimony to the jury in the
form of a transcript in light of the fact that the trial court also sent transcripts of other
witness testimony to the jury); cf. Jones v. State, 402 S.W.2d 191, 193–94 (Tex.
Crim. App. 1966) (noting that the trial court answered the jury’s questions about
                                             3
how the witnesses testified in written form rather than reading aloud testimony in
open court; reasoning that the court’s action was “nothing more than furnishing the
jury with certain testimony,” that the trial court’s memoranda were accurate, and
“[w]hile the testimony was not read to the jury in open court, as provided by the
statutes, there is no showing of injury to appellant as a result of such failure”).

      Even if providing the testimony in written form emphasized it more than
orally reading it to the jury, the emphasis reached all of appellant’s testimony about
whether he felt threatened. The transcripts included appellant’s testimony as elicited
by both his trial counsel and the State. Thus, any emphasis was not one-sided such
that the trial court would have been unduly emphasizing the State’s evidence. See
Higdon, 764 S.W.2d at 310 (“Because the trial court treated testimony both
beneficial and adverse to the appellant in a similar manner, we cannot find, as
appellant suggests, that the trial court’s unorthodox methods [of giving trial
transcripts to the jury during deliberations] constituted unfair bolstering of testimony
prejudicial to him.”). Again, appellant conceded that he had no objection to the
content of the transcripts.

      Moreover, the transcripts did not comprise all of the evidence from which the
jury could have reasonably inferred that appellant’s shooting Barriere was
intentional or knowing. In addition to testimony from appellant, the jury heard from
six State’s witnesses, including the officer dispatched to the scene, the assigned
crime scene investigator, a forensic multimedia analyst, the assigned homicide
detective, the assigned medical examiner, and an eyewitness regarding appellant’s
words, acts, and conduct before, during, and after his shooting Barriere. The jury
also saw surveillance video and still shots from the gas station, an audio recording
of the 9-1-1 call, appellant’s video statement, and the autopsy report and
photographs.

                                           4
         During closing, the State did not unduly highlight appellant’s trial testimony
regarding his intent. Instead, the State focused on appellant’s actions:

                So that leaves us with that last element. Did unlawfully,
         intentionally and knowingly. We talked about during voir dire how we
         prove intent in a case, and it’s not the defendant’s sitting there
         professing exactly what he intended or what he knew was going to
         happen.
               We talked about how you can form—you can infer it from a
         person’s words, their actions, the circumstances surrounding the event.
         That’s the sort of thing that we use to make a determination on what a
         person’s intent is. And I think the defendant’s actions in this case, his
         actions both before, during and after the incident show exactly what he
         intended on that night.
         In sum, the majority does not properly consider the character of the error—a
procedural irregularity—in connection with the entire record and other evidence of
guilt.
                                      CONCLUSION
         After reviewing the record as whole, I am fairly assured that any error from
providing the jury with written transcripts—rather than reading the transcripts
aloud—did not influence the jury or had but a slight effect in this case, and that
appellant’s substantial rights were not affected. See Thomas, 505 S.W.3d at 927.
Because the majority holds otherwise, I dissent to the majority’s reversal of this
murder conviction.


                                          /s/       Ken Wise
                                                    Justice

Panel consists of Justices Wise, Zimmerer, and Spain. (Spain, J., Majority;
Zimmerer, J., Concurring).

Publish—Tex. R. App. P. 47.2(b).

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