
NO. 07-02-0217-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 18, 2003
______________________________

JAMES SHAD NEAL,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1  OF LUBBOCK COUNTY;

NO. 2001-472,705; HON. RUSTY LADD, PRESIDING
_______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.
	In one issue, appellant James Shad Neal appeals his conviction for driving while
intoxicated.  In doing so, he contends that the trial court erred in re-reading to the jury
more testimony than needed to answer its inquiry via art. 36.28 of the Texas Code of
Criminal Procedure.  We affirm the judgment of the trial court.
Background
	After each side completed the presentation of their respective cases and during
deliberations by the jury, the jury foreman sent the following to the trial judge:
 
	We would like to review the testimony of Ms. Ochoa. Specifically the part
regarding whether or not a person could produce a 0.172 and have been a
0.08 [one] hour before and her clarification after defense cross. (1)

In response, the trial judge informed the jury that "[n]o part of a witnesse's [sic] testimony
may be read back to you unless you certify . . . that you are in disagreement about a
particular portion of the witnesse's [sic] statement."  Then, the trial court received the
following missive from the jury:
	We would like to review the testimony of Ms. Ochoa.  We are in
disagreement over whether or not she stated a person could blow a 0.172
at the time of the test while having been 0.08 some period of time prior to the
test time.

In response, the following excerpt from Ms. Ochoa's testimony was read to the jury:

	Ms. Ochoa, what is extrapolation?

 

	Extrapolation is trying to determine the alcohol concentration from

		a given result at one time and what that would have been - given 
		specific information what that would have been at a prior time period.


	And that's a specific number at a specific time?


	Right.  There is also very specific information needed to do that.


	Is it possible for someone to blow .172 and one hour earlier have 

		blown	under a .08?
*     *     *


	Yes.  


	It is possible?


	Sure.


	How is that possible?



	Okay.  A person controls their own absorption by the amount that 

		is consumed and the time period that . . . is consumed in and the biggest
		factor would be empty stomach.  Depending on how much a person 
		drinks, they can absorb a lot within an hour if they drink a lot, and 
		so you would have to have a lot consumed, but you can - you can 
		absorb that much in an hour, especially on an empty stomach, to 
		reach a higher alcohol concentration at a later time. 


	So if I were pulled over by an officer and one hour later I blew a 

		.172, you're saying it's possible for me to have been under .08 while
		I was driving?


	But you would have had - - yes, but you would have had to consume

		that a lot in a very, very short period of time immediately before that 
		stop was made.  On an empty stomach that short period of time about 
		15 minutes because then you're looking for complete absorption.  So
		if you consumed a whole lot right before the stop, then you have a lot
		of absorption, but it has to be a lot.  
Issue

	Appellant argues that the trial court read too much in response to the jury's inquiry.
That is, it should have only read the specific answer "yes" to the question about whether
Ochoa said someone could have a blood alcohol level of 0.172 while only having one of
0.08 an hour earlier. (2)  We overrule the issue.  
	According to art. 36.28 of the Code of Criminal Procedure, if the jurors disagree
about what a witness said, they may have read to them from the reporter's notes that part
of the witness' testimony or the particular point in dispute, but "no other."  Tex. Code Crim.
Proc. Ann. art. 36.28 (Vernon 1981).  When such a circumstance arises, the trial court
must interpret the communication, decide what portion of the testimony best answers the
question, and limit the testimony accordingly.  Brown v. State, 870 S.W.2d 53,  55 (Tex.
Crim. App. 1994); Goldstein v. State, 803 S.W.2d 777, 795 (Tex. App.--Dallas 1991, pet.
ref'd).  Furthermore, the manner and extent of its response cannot be held wrong unless
the trial court abused its discretion.  Brown v. State, 870 S.W.2d at 55; Megason v. State,
19 S.W.3d 883, 888 (Tex. App.--Texarkana 2000, pet. ref'd).
	Here, appellant would have the trial court strictly interpret the query posed by the
jury.  Furthermore, in construing it, the court would simply be limited to considering the
missive in which the jurors indicated that they disagreed, he continues.  It purportedly
could not consider prior notes from the jury directly relating to the dispute.  We disagree
for to adopt such a stance would run afoul of precedent.  For instance, the appellant, in
Fernandez v. State, 915 S.W.2d 572 (Tex. App.-San Antonio 1996, no pet.), argued that
the trial court erred in reading testimony to the jury because its written inquiry said nothing
about a disagreement.  In rejecting the argument, the reviewing court considered not only
the message issued by the jury immediately before the trial court read the testimony in
question but also the prior notes from those jurors.  Id. at 574.  According to the court, "it
[was] reasonable from the progression of notes and the language used in the second note
for the trial court to conclude that members of the jury disagreed about the officer's
testimony."  Id.  (Emphasis added).  
	Similarly, in Randon v. State, No. 06-01-00183-CR, slip op. at 9, 2003 Tex. App.
Lexis 2070 (Tex. App.-Texarkana, March 10, 2003, no pet. h.), the appellate court
considered a progression of notes in assessing whether there existed a disagreement for
purposes of art. 36.28.  Furthermore, it did so since the Court of Criminal Appeals did so
in Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162,
115 S.Ct. 2617, 132 L.Ed.2d 859 (1995) (again involving the issue of whether the jurors
disagreed about particular testimony).  
	Robison is of import since there the Court of Criminal Appeals explained the two
competing interests underlying art. 36.28 and expounded upon their balance.  One
involved the need to avoid commenting upon the evidence while the other entailed the
desire to provide the jury with the means to resolve any factual disputes its members may
have.  Id. at 480.  More importantly, in striking the appropriate balance between them, it
implicitly recognized that a trial court may consider a progression of notes from the jury
when attempting to fulfill the mandate of art. 36.28.  Id. at 480-81. 
 One other noteworthy opinion is that of Brown v. State, 870 S.W.2d 53 (Tex. Crim.
App. 1994).  There, the issue did not pertain to the existence of a disagreement, as in
Robison, but whether the trial court erred by re-reading too much testimony.  Moreover,
the Court of Criminal Appeals affirmed the trial court's decision even though some of the
testimony read did not expressly address the disagreement mentioned by the jury.  It did
so because the additional testimony served to place in "context" that which was directly
on point.  Id. at 56.
	From Brown, Robison, Randon, and Fernandez, we deduce that the context of the
final note cannot be ignored.  It must be considered to determine not only if a
disagreement exists but also the extent of the disagreement and the appropriate response. 
Furthermore, that context is comprised of not only the words in the final note but also those
appearing in any prior notes giving rise to the final one.  That is to say, there must be a
logical nexus between the prior and ultimate notes for the former to be properly contextual
of the latter.  And, all this is done on a case by case manner to avoid commenting upon
the evidence and to give the jury that needed to resolve factual disputes.
	Here, we have such a nexus between the first and last note.  Both sought excerpts
of Ochoa's testimony.  Additionally, the excerpts pertained to her comment about whether
an individual could have a blood alcohol of 0.172 an hour after having one of 0.08.  And,
while the latter note failed to expressly mention whether the dispute implicated Ochoa's
explanation of her one word answer, the former did not; both the answer and her
explanation were sought. (3)  Thus, in reading the last note in context with the first, we are
unable to hold that the trial court abused its discretion in opting to read both the one word
answer "yes" as well as Ochoa's explanation of that answer. (4) 
	Appellant relies on Pugh v. State, 376 S.W.2d 760 (Tex. Crim. App. 1964) to urge
otherwise.  However, in Pugh, the jury asked only about the date and hour that the
defendant had been picked up by a highway patrolman.  The parties stipulated to the
answer which was then read to the jury.  Despite this, the trial court then had other portions
of the officer's testimony read to the jury which in no way related to the date and hour in
question.  That act was found to be an abuse of discretion.  Id. at 761-62.  Here, by
contrast, all the testimony read to the jury related to the question asked, as that question
was determined by its context.
	As the trial court stated, "the jury is entitled to . . . a full and fair answer."  Ochoa's
explanatory statements could reasonably be considered part of the information needed by
the jury to resolve its disagreement, given the several notes involved. Accordingly, the
judgment of the trial court is affirmed. 

							Brian Quinn
							   Justice

Publish.
1. Ms. Ochoa was the technical supervisor in breath alcohol testing for the Texas Department of Public
Safety. 
2. Appellant also contends that reading the additional testimony was prejudicial and bolstered the
State's case.  However, before the trial court, he only objected on the ground that the matter the court
proposed to read exceeded the scope of the certification.  Because the objections about the prejudicial
nature of the testimony and bolstering were not raised below, they are waived.  See Tex. R. App. P.
33.1(a)(1) (requiring that a complaint be made to the trial court by stating the grounds for the ruling sought
with sufficient specificity to make the trial court aware of the complaint unless the grounds are apparent from
the context); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171, 117
S.Ct. 1438, 137 L.Ed.2d 545 (1997) (holding that if trial objections do not comport with arguments on appeal,
error has not been preserved).   
3. Common sense suggests that an explanation of an answer is just as much a part of the answer as
the answer is itself.  Indeed, snippets of testimony cannot be pulled from context in a way that engenders
confusion.  At least that is what the Court of Criminal Appeals indicated in Brown. 
4. This is not to say that the answer would be the same had the jury expressly evinced that it did not
care to hear the explanation.  Simply stating that they had a disagreement about whether she said individuals
could have different blood alcohol contents at different times does not evince such. 


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NO. 07-10-00267-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

OCTOBER
19, 2010
 

 
MORTGAGE ELECTRONIC REGISTRATION
 SYSTEMS, INC., APPELLANT
 
v.
 
MARK DISANTI, APPELLEE 

 

 
 FROM THE 393RD DISTRICT COURT OF DENTON
COUNTY;
 
NO. 2009-60324-393; HONORABLE DOUGLAS M. ROBISON, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
ORDER
 
On October 4, 2010, appellant
Mortgage Electronic Registration Systems, Inc., (MERS) and appellee
Mark DiSanti filed a joint motion asking us to set
aside the judgment of the trial court in the underlying action, remand the case
for a new trial, and dismiss this appeal. 
Attached to the motion is a document memorializing the intention of the
parties to seek the requested relief in this court.  According to the motion, DiSanti
obtained a default judgment against MERS on December 4, 2009.  MERS filed a notice of restricted appeal on
June 1, 2010.[1]  
MERS and DiSanti
do not direct us to a location in the record where they agree we will find
reversible error of the trial court, apparent on the face of the record.  Indeed, the parties do not mention an act of
reversible error by the trial court. 
Rather, in the motion MERS and DiSanti state
their attorneys have conferred regarding MERS (sic) appeal and have agreed
that the default judgment should be set aside and the matter remanded to the
trial court for a new trial.  
            As
authority for the motion, the parties rely on Rule of Appellate Procedure
42.1(a)(2)(A), which permits us to render judgment
effectuating the parties agreement in accordance with an agreement signed by
the parties or their attorneys and filed with the clerk. Tex. R. App. P. 42.1(a)(2)(A).  
            The
relief the parties seek by their joint motion is beyond that authorized by Rule
42.1(a)(2).  We
may not order a new trial merely on the agreement of the parties absent
reversible error, or vacate a trial courts judgment absent reversible error or
a settlement.  Notes and Comments, Tex.
R. App. P. 42.1; see In re J.A.B., No. 08-06-0201-CV, 2007
Tex. App. Lexis 6312 (Tex.App.--El Paso Aug. 9, 2007,
no pet.) (mem. op.) (agreed motion of appellee to
reverse and remand proper since appellee conceded one
of appellants points of error and the court of appeals agreed trial court
erred).  For that reason, the motion of
the parties as presented is denied.
It is so ordered.
Per Curiam
 
 
            




 




[1]
To prevail on a restricted
appeal, the appealing party must establish: (1) it filed notice of the
restricted appeal within six months after the judgment was signed; (2) it was a
party to the underlying lawsuit; (3) it did not participate in the hearing that
resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and
conclusions of law; and (4) error is apparent on the face of the record.  Alexander v. Lyndas Boutique, 134 S.W.3d 845, 848 (Tex. 2004)
(citing Tex. R. App. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227
(Tex. 1999)).  In the motion, the
parties agree on the timeliness of the notice of appeal, that MERS was a party
to the underlying lawsuit, and that MERS did not participate in the hearing
that resulted in the appealed judgment. 
No mention is made of a timely postjudgment
motion or a request for findings of fact and conclusions of law by MERS.

 


