AFFIRM; and Opinion Filed July 21, 2015.




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                     No. 05-13-01258-CR

                                            JOEL DANIEL, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                              On Appeal from the 292nd Judicial District Court
                                           Dallas County, Texas
                                   Trial Court Cause No. F-1155664-V

                                        MEMORANDUM OPINION
                                 Before Justices Lang-Miers, Brown, and Schenck 1
                                             Opinion by Justice Brown
          Appellant Joel Daniel appeals his jury conviction for manslaughter.                                        After finding

appellant guilty, the jury assessed punishment at twenty years’ confinement, and a $10,000 fine.

In a single issue, appellant contends the trial court violated his statutory and constitutional rights

when it replayed his videotaped statement to the jury outside of his presence. For the following

reasons, we affirm the trial court’s judgment.

          On the evening of May 20, 2011, appellant shot fifteen-year-old Cristiyan Martinez in the

head. At the time of the shooting, Martinez was inside an apartment with some older friends.

Appellant was also at the apartment giving Martinez’s friends tattoos and haircuts.




     1
        The Honorable David Schenck succeeded the Honorable Michael O'Neill, a member of the original panel. Justice Schenck has reviewed
the briefs and record before the Court.
       While appellant was cutting someone’s hair, Martinez told appellant he wanted to get a

tattoo. When Martinez did so, appellant pulled out a gun, and pointed it at Martinez’s head.

Martinez responded jokingly that he would “eat them holes,” meaning he would “take a bullet.”

Appellant then pulled the trigger twice, but it only clicked. Appellant pulled the trigger a third

time, shooting Martinez in the head. Martinez died of the gunshot wound.

       After he shot Martinez, appellant fled, but he was apprehended by police soon thereafter.

Appellant gave police a videotaped statement. In his statement, appellant admitting shooting

Martinez, but claimed he did not intend to hurt him, but was only joking around with the gun.

The grand jury indicted appellant for murder.

       At trial, appellant’s videotaped statement was admitted into evidence after the parties

agreed to mute certain portions of the tape. After the jury retired for deliberations, it requested

to view the videotape again. In response, the trial court addressed the jury in the courtroom as

follows:

      [THE COURT]: Be seated, please. Ladies and gentlemen, this conversation is
      going to be on the record. The defendant is not present. I’m going to honor your
      request to have the videotape replayed, but this room is now going to become an
      extension of the jury room.

              [The prosecutor] will operate the machine as he did before. There are
      certain portions of the tape I have ruled inadmissible, so, as before, he will mute
      those sections on the tape. Other than this conversation, I cannot talk to you and
      you can’t talk to me, certainly not about deliberations, and the same goes for the
      lawyers. They have to be present to make sure everything is done properly with the
      machine and I am sure it will be.

              Feel free to move around the courtroom if you want to stand closer to a
      speaker to hear better but you cannot say, stop, I want to hear that again. You
      cannot give us any direction because that might tell us something about your
      deliberations which must be secret. I will give you a 15-minute break to get
      everything set up in here. When you reassemble in the jury room, you will be
      brought in as a group again and [the prosecutor] will start the tape right at the same
      point he did at the trial and it will play continuously. Again, you can move around
      the courtroom, if you want to come up to the screen to look at it more closely, just
      like you could do in the jury room. You just can’t say anything to us or give us any
      directions. We’re in recess for 15 minutes. One second. One of the jurors raised
                                                –2–
      her hand. I can’t talk to you about anything about deliberations, about playing the
      tape, the rules, anything like that. If you are going to tell me it’s hot in the jury
      room, I understand. Is it better with the fans by the way?

       [JURY PANEL]: Yes.

       [THE COURT]: We are now in recess for 15 minutes. When you reassemble the
       tape will be played to you in its entirety. That concludes these proceedings. You
       may separate, just don’t talk about the case.

       After the short recess, the tape was replayed for the jury. Appellant did not lodge any

objections at trial concerning his absence or the manner in which the videotape was provided to

the jury.   The jury subsequently found appellant guilty of the lesser-included offense of

manslaughter.

       On appeal, appellant asserts his absence from the courtroom while the videotape was

replayed violated his statutory and constitutional rights to be present at trial.    Appellant first

asserts the trial court violated articles 33.03 and 36.27 of the Code of Criminal Procedure. See

TEX. CODE CRIM. PROC. ANN. arts. 33.03 & 36.27 (West 2006).                Under Article 33.03, a

defendant has a right to be present at every stage of his trial.     TEX. CODE CRIM. PRO. 33.03

(West 2006). Article 36.27 requires a trial court to make reasonable efforts to secure the

presence of the defendant before responding to a jury’s request to communicate with the trial

court about the case. TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2006). Appellant also

asserts the trial court violated his constitutional rights to be present. The Due Process Clause and

the Confrontation Clause of the United States Constitution guarantee a criminal defendant the

“right to be present at all stages of the trial where his absence might frustrate the fairness of the

proceedings.” Faretta v. California, 422 U.S. 806, 819, n. 15 (1975); Tennessee v. Lane, 541

U.S. 509, 523 (2004). Due process requires a defendant be given the right to be present in any

proceeding in which his presence has a “reasonably substantial” relationship to the opportunity

to defend himself.   United States v. Gagnon, 470 U.S. 522, 526 (1985). On the other hand, a

                                                –3–
defendant has no statutory or constitutional right to be present during jury deliberations. 2 To the

contrary, jury deliberations must be secret. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 202

(Tex. Crim. App. 2003) (jury deliberations shall be secret); see also TEX. CODE CRIM. PROC.

ANN. art. 36.22 (West 2006).

           Here, after the jury retired to deliberate, it requested to view a video that had been

admitted into evidence. Because the video was a trial exhibit, the jury was entitled to review it

on request. TEX. CODE CRIM. PRO. ANN. 36.25 (West 2006) (jury shall be furnished on request

any exhibits admitted as evidence); Dyba v. State, 549 S.W.2d 178, 181 (Tex. Crim. App. 1977);

Chennault v. State, 667 S.W.2d 299, 302 (Tex. App.—Dallas 1984, pet. ref’d). Instead of

providing the videotape to the jury in the jury room, the videotape was replayed in the courtroom

in the presence of the trial judge and the attorneys.                                   At that time, the trial judge neither

considered nor made any judicial determinations, did not communicate with the jury about the

case other than to explain the manner in which the videotape was being replayed, and did not

permit the attorneys to communicate with either the jury or the court.

           We conclude appellant was not excluded from trial or any trial proceeding, but from a

portion of jury deliberations. Although the trial court and the attorneys were present at that time,

appellant does not complain this constituted error. See TEX. CRIM. PROC. CODE ANN. art. 36.22

(West 2006) (no person shall be permitted to be with a jury while it is deliberating). We

nevertheless note the trial court took certain precautions to protect both the secrecy of jury

deliberations and to ensure that the exhibit that was admitted into evidence was properly

replayed. Because appellant did not have a right to be present while the jury reviewed evidence




     2
       We also note that appellant was required to object at trial to preserve his statutory complaints. Routier, 112 S.W.3d at 575; see also TEX.
R. APP. P. 33.1(a). Because appellant did not, any error based on the statutes has been waived. See id.



                                                                      –4–
admitted at trial after it retired to deliberate, we resolve the sole issue against appellant. We

affirm the trial court’s judgment.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

131258F.U05




                                              –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JOEL DANIEL, Appellant                                On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-01258-CR         V.                         Trial Court Cause No. F-1155664-V.
                                                      Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee                          Lang-Miers and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of July, 2015.




                                                –6–
