                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00095-CR

DOUGLAS LYNN KIRK                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                     ------------

        FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                           DISSENTING OPINION
                                     ------------


      I agree that the evidence sufficiently supports the murder conviction and

that any error in the admission of evidence was harmless. But I disagree with the

majority’s holding that the trial court did not err by supplementing the jury charge

sua sponte after the jury had begun deliberating. This court has noted,

            Article 36.16 of the code of criminal procedure governs
      supplemental jury charges, and it does not, in all instances, prevent
      the trial court from submitting a supplemental charge after
      deliberations have begun. Article 36.16 permits a supplemental
      charge as follows:
              After the argument begins no further charge shall be
              given to the jury unless required by the improper
              argument of counsel or the request of the jury, or unless
              the judge shall, in his discretion, permit the introduction
              of other testimony, and in the event of such further
              charge, the defendant or his counsel shall have the right
              to present objections in the same manner as is
              prescribed in Article 36.15.

      Further, the court of criminal appeals has consistently held that a
      trial court may withdraw and correct its charge if convinced an
      erroneous charge has been given.1

But article 36.16 does not contain the caselaw exception,2 although the

legislature has had ample time to amend the statute since courts created this

exception.3

      In the case now before this court, the jury was deadlocked and could not

reach a verdict as to count one. The jury had not been instructed to consider

succeeding counts if they could not reach agreement on the first count. The jury

did not request any additional instruction. Although the majority relies in part on

Roberson in holding that the trial court properly supplemented the jury charge


      1
        Roberson v. State, 113 S.W.3d 381, 384 (Tex. App.—Fort Worth 2003,
pet. ref’d) (quoting Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006)) (citations,
alterations, and internal quotation marks omitted).
      2
       Tex. Code Crim. Proc. Ann. art. 36.16.
      3
        See Smith v. State, 898 S.W.2d 838, 854–55 (Tex. Crim. App.) (relying on
Bustillos v. State, 464 S.W.2d 118, 125–26 (Tex. Crim. App. 1964), and Nowlin v.
State, 76 Tex. Crim. 480, 175 S.W. 1070, 1072 (1915), for the exception), cert.
denied, 516 U.S. 843 (1995).


                                          2
after the case had been submitted to the jury,4 Roberson is not really sound

authority for that holding. In Roberson, we stated,

            Appellant relies upon Moore v. State, in which the First District
      Court of Appeals reversed and remanded a case involving a
      supplemental charge given to the jury after closing arguments had
      been completed. Moore is distinguishable from Appellant’s case,
      however, because the trial court in Moore violated article 36.16,
      in part, by giving a supplemental charge when there had been
      no request of the jury.5
      Here, unlike in Roberson, the jury did not request an additional charge.

Further, the majority does not indicate that the trial court stated on the record that

the original jury charge was erroneous, nor does the majority hold that the trial

court’s original charge was erroneous. Had Appellant requested the additional

instruction, we would be looking at a question of invited error.6 But Appellant did

not request and did object to the additional instruction.

      As the Texas Court of Criminal Appeals recently reminded us,

             When we interpret statutes, we seek to effectuate the
      collective intent or purpose of the legislators who enacted the
      legislation. In order to do this, we necessarily focus our attention on
      the literal text of the statute in question and attempt to discern the
      fair, objective meaning of that text at the time of its enactment. This
      is because the law is the only thing that is actually enacted through
      compromise and debate, and because it is the only definitive
      evidence of what the legislators had in mind at the time of


      4
       Maj. Op. at 23–24.
      5
       Roberson, 113 S.W.3d at 385 (emphasis added) (citation omitted).
      6
      See Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988), cert.
denied, 492 U.S. 912 (1989).


                                          3
      enactment. Further, under our constitution, the judiciary is supposed
      to faithfully follow and enforce the adopted text.

            For these reasons, if the meaning of the text when read using
      the established canons of construction of such text should have
      been plain to the legislators who voted on it, we ordinarily give effect
      to that plain meaning, unless the plain text would lead to absurd
      consequences that the legislature could not possibly have intended.7

      I would hold that the trial court erred by sua sponte supplementing the jury

charge. Because the majority opinion contravenes the clear wording of article

36.16 to hold that the trial court did not err, I must respectfully dissent.


                                                     /s/ Lee Ann Dauphinot


                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PUBLISH

DELIVERED: January 23, 2014




      7
       State v. Cooper, Nos. PD-0001-13, PD-0202-13, 2013 WL 6081452, at *2
(Tex. Crim. App. Nov. 20, 2013) (citations omitted).


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