Opinion issued January 24, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-11-00730-CR
                           ———————————
                  TROY ANTHONY CONWAY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1255787



                         MEMORANDUM OPINION

      A jury convicted appellant, Troy Anthony Conway, of the first-degree

felony offense of aggravated sexual assault of a child under the age of fourteen1


1
      See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2012).
and assessed his punishment at fifteen years’ confinement. In his single issue on

appeal, he argues that the trial court’s response to and handling of a jury question

during the punishment-phase deliberation constitutes reversible error because the

trial court did not comply with Texas Code of Criminal Procedure article 36.27 and

misstated the law.

      We affirm.

                                    Background

      Appellant was convicted of aggravated sexual assault of his stepdaughter.

During its deliberation in the punishment phase of trial, the jury sent a note to the

trial court asking, “What happens if the jury [cannot] decide on a unanimous

sentence?” The trial court responded, “A mistrial would be declared and the case

would have to be retried.”

      Sometime after this response was given to the jury, the trial court questioned

the jury foreperson in open court regarding its deliberations. The trial court asked

about the jury’s “last note sent—that you sent to the Court indicated that you might

be having trouble reaching a verdict. Are you still at that stage?” The foreperson

responded that the jury was still deliberating but it was possible that it could reach

a verdict that afternoon. The trial court then asked, “So . . . you don’t believe

you’re wasting your time; is that correct?” The foreperson agreed, and the trial

court instructed the jury to continue deliberating.


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                                      Analysis

      Texas Code of Criminal Procedure article 36.27 governs the procedure that a

trial court must follow when answering a question from the jury. It provides:

      The court shall answer any such communication in writing, and before
      giving such answer to the jury shall use reasonable diligence to secure
      the presence of the defendant and his counsel, and shall first submit
      the question and also submit his answer to the same to the defendant
      or his counsel or objections and exceptions, in the same manner as
      any other written instructions are submitted to such counsel, before
      the court gives such answer to the jury, but if he is unable to secure
      the presence of the defendant and his counsel, then he shall proceed to
      answer the same as he deems proper. The written instruction or
      answer to the communication shall be read in open court unless
      expressly waived by the defendant.

      All such proceedings in felony cases shall be a part of the record and
      recorded by the court reporter.

TEX. CODE CRIM. PROC. ANN. art. 36.27 (Vernon 2006).

      The State argues that, by presenting a record that is silent regarding the

procedures used in responding to the jury question and that does not reflect that he

objected to the procedure or answers, appellant “procedurally defaulted” any claim

of an article 36.27 violation and any objection to the trial court’s answer to the jury

question. We agree.

      In Green v. State, the Texas Court of Criminal Appeals considered Green’s

complaint regarding the trial court’s response to a jury question. 912 S.W.2d 189,

192 (Tex. Crim. App. 1995). In Green, as in the present case, the record was silent

regarding the procedure followed by the trial court in responding to the jury
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question, and it did not reflect that Green objected to the trial court’s response. Id.

at 192. Thus, the Court of Criminal Appeals concluded that Green had presented

nothing for review. Id.

      In response to Green’s argument that “he had no opportunity to object,” the

court stated, “This Court does not decide cases based on speculation about matters

not shown in the record. In the absence of a showing to the contrary in the record,

we presume the trial court’s response was in open court and in appellant’s

presence.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 36.27). Green also argued

that the “trial court’s response ‘egregiously harmed’ him under the standard set out

in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).”2 Id. (citing

Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (holding that when

trial court responds substantively to jury question during deliberations, that

communication     essentially amounts       to   additional   or supplemental       jury

instruction)). The Court of Criminal Appeals likewise rejected this argument,

stating, “Since we presume the trial court’s response was in open court and in

appellant’s presence, we also presume appellant agreed to it. Therefore, appellant

waived any error, and the Almanza standard is inapplicable.” Id. at 193 (citing

Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)). The court went on

2
      Almanza v. State provides that when there is no objection to the jury charge at the
      trial level, the defendant must establish on appeal that the error caused him
      egregious harm in order to obtain a reversal. 686 S.W.2d 157, 171 (Tex. Crim.
      App. 1984).
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to state that, even assuming the applicability of Almanza, it found no “egregious

harm.” Id. at 193.

      More recently, in Word v. State, the Court of Criminal Appeals reaffirmed

its holding in Green. 206 S.W.3d 646, 651 (Tex. Crim. App. 2006). It again held

that “[i]t is usually the appealing party’s burden to present a record showing

properly preserved, reversible error,” and it stated that “[n]othing in Article 36.27

(including its second paragraph) expressly indicates a legislative intent that

appellate courts should disregard usual rules of procedural default and rules of

appellate procedure and presume that a defendant had no opportunity to object to

the trial court’s answers to jury questions when the record is silent.” Id. 651–52. It

observed that the record Word presented to the court did not show that the trial

court failed to notify him of the jury questions or that he objected to the trial

court’s answers to the jury questions and concluded, “The record presented to the

Court of Appeals, therefore, required a decision that [Word] procedurally defaulted

any claimed violation of Article 36.27 and any objection to the trial court’s

answers to the jury questions.” Id. at 652.

      Here, as in Green and Word, the record is silent regarding the procedures the

trial court used in responding to the jury question. The record does not reflect that

appellant objected to the trial court’s handling of the jury question. Thus, “[i]n the

absence of a showing to the contrary in the record, we presume the trial court’s

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response was in open court and in appellant’s presence” as required by article

36.27.     See Green, 912 S.W.2d at 192; see also Word, 206 S.W.3d at 651

(declining to abandon Green’s presumption of trial court’s compliance with article

36.27 when record is silent). Furthermore, “[s]ince we presume the trial court’s

response was in open court and in appellant’s presence, we also presume appellant

agreed to it.” See Green, 912 S.W.2d at 193. Therefore, we conclude, as did the

Court of Criminal Appeals in Green, that appellant waived any error and that the

Almanza standard is inapplicable. See id.; see also Word, 206 S.W.3d at 652

(holding that record that “did not show that the trial court failed to notify appellant

of the jury questions or that appellant objected to the trial court’s answers to the

jury questions . . . required a decision that appellant procedurally defaulted any

claimed violation of Article 36.27 and any objection to the trial court’s answers to

the jury questions”).

         Appellant argues that the trial court’s answer to the jury question was a

supplemental instruction subject to analysis under Almanza.           We agree with

appellant that “[w]hen the trial court responds substantively to a question the jury

asks during deliberations, that communication essentially amounts to a

supplemental jury instruction, and the trial court must follow the same rules for

impartiality and neutrality that generally govern jury instructions.” See Lucio v.

State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011) (citing Daniell, 848 S.W.2d at

                                          6
147). However, the Court of Criminal Appeals has rejected the argument that the

Almanza egregious harm analysis applies when the record is silent regarding the

trial court’s handling of a jury question.    See Green, 912 S.W.2d at 192–93

(presuming that trial court’s response was in open court and in appellant’s presence

and that appellant agreed to it, and concluding that “appellant waived any error,

and the Almanza standard is inapplicable”); see also Word, 206 S.W.3d at 651–52

(concluding that silent record required decision that appellant “procedurally

defaulted any claimed violation of Article 36.27 and any objection to the trial

court’s answers” without applying Almanza).

      Furthermore, even assuming the applicability of Almanza and error in the

trial court’s response to the jury question, appellant has not suffered “egregious

harm.”   See Green, 912 S.W.2d at 193 (“Assuming the applicability of the

Almanza standard, we find no ‘egregious harm.’”); see also Almanza, 686 S.W.2d

at 171 (holding that, in determining whether egregious harm occurred, we review

error in light of entire jury charge, state of evidence, argument of counsel, and

other relevant information). Here, appellant argues that he was harmed because

the trial court’s answer failed to inform the jury that a mistrial on the issue of

punishment would lead to a retrial of the punishment phase only and that it would

be dismissed and a new jury impanelled to decide appellant’s punishment should a

mistrial be declared. Thus, “[t]he jury was left to labor under either an incomplete

                                         7
or incorrect understanding of the law” and was possibly coerced into agreeing on a

punishment verdict.

      Here, the trial court’s answer, although possibly incomplete, did not

affirmatively misstate the law. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(c)

(Vernon Supp. 2012) (“In the event the jury shall fail to agree on the issue of

punishment, a mistrial shall be declared only in the punishment phase of the trial,

the jury shall be discharged, and no jeopardy shall attach. The court shall impanel

another jury as soon as practicable to determine the issue of punishment.”);

Howard v. State, 941 S.W.2d 102, 124–25 (Tex. Crim. App. 1996) (rejecting

appellant’s argument that supplemental charge was coercive in its context because

jury might erroneously assume that failure to agree would result in entirely new

trial); Draper v. State, 335 S.W.3d 412, 417–18 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d) (rejecting contention that trial court’s answer to similar jury

question at punishment phase was erroneous because it failed to inform jury that

mistrial would result only in retrial as to punishment). Furthermore, in the initial

charge on punishment, the jury was instructed, “Having found [appellant] guilty of

aggravated sexual assault of a child, it now becomes your duty to assess the

punishment in this case.” Thus, in the context of the entire charge, the jury was

properly informed that the question of punishment was the only issue confronting




                                         8
it at that time, and nothing in the record suggests that the jury disregarded or was

confused by these instructions. See Draper, 335 S.W.3d at 417.

      Nor did the trial court’s answer to the jury’s question affect the basis of

appellant’s case, deprive him of a valuable right, or vitally affect a defensive

theory. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (“Errors

that result in egregious harm are those that affect ‘the very basis of the case,’

‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’”).

      Appellant did not receive a particularly harsh sentence, given the severity of

his crime. See TEX. PENAL CODE ANN. § 12.32(a) (providing that punishment

range for first degree felony is imprisonment “for life or for any term not more 99

years or less than 5 years”). And, the record does not otherwise indicate possible

coercion by the trial court’s answer. The trial court responded to a straightforward

question with an answer that addressed the question posed.            See Green, 912

S.W.2d at 193. Furthermore, the trial court’s subsequent discussion with the jury

foreperson contains no indication of coercion or confusion—the foreperson

indicated that the jury was still deliberating, but she believed that it could reach a

verdict that afternoon, and she did not believe that the jury was “wasting” time by

continuing deliberations.

      We overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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