Judgment of November 26, 2019 Withdrawn; Motion for Rehearing Granted,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


                 CONCURRING OPINION ON REHEARING

      I join the new majority in full and write separately to address the effect of the
error on appellant’s substantial rights that may not be disregarded pursuant to Texas
Rule of Appellate Procedure 44.2(b).
        It is difficult to imagine how a convicted individual’s own words being used
against them in a court of law is ever harmful. After all, it is the role of the advocate
to call out the inconsistencies of the accused to prove their guilt. But this is not the
role of the trial court. The court must ensure impartiality in the proceedings and
follow the laws as given. This includes compliance with Article 36.28 of the Code
of Criminal Procedure. Because I conclude this error affected appellant’s substantial
rights, I now join the new majority opinion, and also write separately.

                                    BACKGROUND

        This case is back on reconsideration; the facts sufficiently described in the
original opinion and again in the new majority and dissent. I shall not repeat them
here.

                                       ANALYSIS

        The majority and dissent both cite Thomas v. State, which states, “[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.’” 505 S.W.3d 916, 923 (Tex. Crim. App. 2016)
(quoting Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005)).

        The dissent suggests, “the trial court did not unduly emphasize the evidence”
that “the majority fails to consider the entire record in conducting its harm analysis,”
and there is no “authority holding that the method of communicating evidence to the
jury during deliberations—written transcript rather than oral readback—amount[s]
to undue emphasis of the testimony sufficient to undermine the jury’s verdict.”




                                           2
Violations of Article 36.28 as Undue Influence

      The Court of Criminal Appeals in Garrett v. State addressed the danger of
undue influence when a transcript of testimony is allowed to go back with the jury
during deliberations. 658 S.W.2d 592, 594 (Tex. Crim. App. 1983). In addressing
the difference between a permitted use of a written transcript being reviewed by a
jury during trial playback of poor audio recordings, and comparing that to the same
transcript going back to the jury during deliberations the court expressed concerns
of the “danger” of the jury having the testimony before them during deliberations as
both a violation of article 36.28 and the jury being, presumably, “unduly influenced”
by it. See id. “Since the transcript was not introduced and not available during jury
deliberations, there was no danger of the jury having the evidence before them
during deliberations in violation of Art. 36.28, V.A.C.C.P., and thereby being unduly
influenced by it.” Id.

Transcript as Bolstering

      The Court of Criminal Appeals was clear in a similar case in which it
considered a written transcript as bolstering of testimony. In Lewis, the court stated,
“We do not approve the State’s offer of its transcribed version of the taped
conversation. After all, the tape itself was simply corroborative of [the witness’s]
testimony. Technical imperfections in the reproduction of the conversation did not
authorize the State to submit its version in written form and thereby make the written
transcript available to the jury during its deliberations. Art. 36.25, V.A.C.C.P. This
was, in essence, bolstering [the witness’s] version of the conversation.” Lewis v.
State, 529 S.W.2d 533, 535 n.1 (Tex. Crim. App. 1975).




                                          3
Harm Analysis

      As pointed out by the dissent, there remains a question of harm. In a 1935
case, a transcript of appellant’s testimony given during the examining trial was
permitted to go back to a jury. The Court of Criminal Appeals held, “While the
matter may not have been exactly regular, yet no injury is shown to have resulted to
the appellant.” Miller v. State, 79 S.W.2d 328, 330 (Tex. Crim. App. 1935).

      “The proper inquiry is ‘whether the error itself had substantial influence. If
so, or if one is left in grave doubt, the conviction cannot stand.’” Thomas, 506
S.W.3d at 926 (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)). “On
the other hand, if the error did not influence the jury, or had but very slight effect,
the verdict and the judgment should stand.” Id. at 926.

      In Thomas, the question was between what was read and not read to the jury
in response to the jury asking for the transcript. The court did not focus on the
variance to determine harm. “[T]he harm analysis should not hinge solely on the lack
of contradiction[.]” Id. at 927. Rather “a proper harm analysis requires a review of
the entire record, including the weight of the evidence of [the defendant’s] guilt, in
order to determine whether the trial court’s [error] affected the defendant’s
substantial rights.” Id. at 927. “In assessing the likelihood that the jury’s decision
was adversely affected by the error, the reviewing court should consider all of the
testimony and physical evidence admitted for the jury’s consideration, the nature of
the evidence supporting the verdict, the character of the alleged error and how it
might be considered in connection with other evidence in the case, and closing
arguments.” Id. at 927. “If, after a review of the record as a whole, the appellate
court can say that it ‘has fair assurance that the error did not influence the jury, or
had but a slight effect,’ then the error is harmless.” Id. at 927.


                                            4
                                    CONCLUSION

      It is easy for anyone who has ever argued with a close friend or spouse to
recall the hurt when one’s own words were selectively recalled, yet this is exactly
what the trial court did in this case; bolstering selective portions of appellant’s
testimony sent back during jury deliberation. The specific testimony not only related
directly to a variance of appellant’s prior testimony, but it appears to be the critical
testimony upon which the appellant was convicted of the aggravating factor.
      Under the system of analysis described by the Court of Criminal Appeals, I
conclude the “weight of the evidence” against appellant was established by this
testimony, and that the “nature of the evidence” was the “principle support” of the
verdict. Accordingly, this appellate court cannot say that it has “fair assurance the
error did not influence the jury, or had but a slight effect.” See Thomas, 506 S.W.3d
at 926. Taken in conjunction with the fact the trial court acted without due regard
for the law, even in light of direct objection, gives great pause for the apparent lack
of guiding principles upon which our system of jurisprudence relies. For these
reasons I join the majority opinion and concur with the judgment to remand for a
new trial.



                                        /s/       Jerry Zimmerer
                                                  Justice



Panel consists of Justices Wise, Zimmerer, and Spain (Spain, J., Majority).
Publish — Tex. R. App. P. 47.2(b).




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