Judgment of November 26, 2019 Withdrawn; Motion for Rehearing Granted,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

                   MAJORITY OPINION ON REHEARING

      As a society, we accord high deference to the jury system. We respect the
jury’s role, indeed its duty, to judge the facts, believe or disbelieve witness
testimony, and resolve conflicts in the evidence. However, the jury’s ability to fulfill
its duty cannot be separated from, and indeed depends on, the trial court’s duty to
properly apply procedural rules to ensure the jury can fairly and impartially
deliberate and render a verdict based on the law and the evidence. This evidence is
supposed to consist of the testimony that the jury hears and the exhibits that the jury
sees. In this case—over appellant’s objection—the trial court violated Code of
Criminal Procedure article 36.28 by providing28 the deliberating jury with written
excerpts of appellant’s trial testimony. In this case, the error affected appellant’s
substantial rights and cannot be disregarded as a mere procedural irregularity.

      The court initially affirmed the trial court’s judgment, in which appellant
Vincent Depaul Stredic was convicted of murder and sentenced to imprisonment for
30 years. Stredic v. State, No. 14-18-00162-CR, 2019 WL 6320220, at *1–6 (Tex.
App.—Houston [14th Dist.] Nov. 26, 2019, no pet. h.); id. at *6–13 (Spain, J.,
dissenting); see Tex. Penal Code Ann. §§ 12.42(d), 19.02.

      Appellant timely filed a motion for rehearing, which only argued the
unconstitutionality of section 133.058(a) of the Local Government Code, which
authorizes a ten-percent service fee for the collection of the consolidated court cost
by counties such as Harris County. See Tex. Loc. Gov’t Code Ann. § 133.058; Tex.
R. App P. 49.1. The State filed a response. See Tex. R. App. P. 49.2. The court denied
the motion for rehearing. Appellant also timely filed a motion for en banc
reconsideration, which argued the trial court committed reversible error by violating
article 36.38 of the Code of Criminal Procedure, as well as the unconstitutionality of
the section-133.058(a) service fee for collecting the consolidated court cost. See Tex.
R. App P. 49.7. The State again filed a response. The court grants rehearing on its
own motion on the article-36.38 issue raised in the motion for en banc
reconsideration. See Tex. R. App P. 49.3.

      For clarity, we summarize the new holdings. In his first issue, appellant argues
that Code of Criminal Procedure article 36.28 does not allow for a written transcript
of disputed testimony to be provided to the jury during deliberations. See Tex. Code

                                          2
Crim. Proc. Ann. art. 36.28. Appellant also contends that he was harmed by the trial
court’s error. We agree.

      Statutory construction is a question of law we review de novo. Williams v.
State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). When interpreting statutory
language, we focus on the collective intent or purpose of the legislators who enacted
the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We
construe a statute according to its plain meaning without considering extratextual
factors unless the statutory language is ambiguous or imposing the plain meaning
would cause an absurd result. See id. at 785–86. Applying the canons of construction
to determine the meaning of a statute, we presume that (1) compliance with the
constitutions of this state and the United States is intended, (2) the entire statute is
intended to be effective, (3) a just and reasonable result is intended, (4) a result
feasible of execution is intended, and (5) public interest is favored over any private
interest. Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011); see Code
Construction Act, Tex. Gov’t Code Ann. § 311.021.

      Article 36.28 provides:

      In the trial of a criminal case in a court of record, if the jury disagree as
      to the statement of any witness they may, upon applying to the court,
      have read to them from the court reporter’s notes that part of such
      witness testimony or the particular point in dispute, and no other; but if
      there be no such reporter, or if his notes cannot be read to the jury, the
      court may cause such witness to be again brought upon the stand and
      the judge shall direct him to repeat his testimony as to the point in
      dispute, and no other, as nearly as he can in the language used on the
      trial.
Tex. Code Crim. Proc. Ann. art. 36.28. Article 36.28 is not ambiguous, nor does
imposing its plain meaning impose an absurd result. Instead, the plain meaning of
the statute is clear. The statute only expressly authorizes oral readback of the court’s


                                           3
reporter’s notes concerning the particular disputed testimony, or when there is no
reporter or the reporter’s notes cannot be read, for the witness to repeat such
testimony on the stand. See id. The statute does not authorize the trial court to
provide the jury with a written transcript of the court reporter’s notes, as was done
here. See id.1 Therefore, we conclude that the trial court violated article 36.28 and
clearly abused its discretion by supplying—over appellant’s objection—disputed
testimony to the deliberating jury in a manner not authorized by statute. See id.;
Thomas v. State, 505 S.W.3d 916, 923 (Tex. Crim. App. 2016).

       Even assuming without deciding that a violation of the nondiscretionary
portion2 of article 36.28 is purely statutory and not constitutional error,3 and even
assuming without deciding that such an error lends itself to a traditional harm
analysis under rule 44.2, we conclude that the error affected appellant’s substantial


       1
          The parties do not provide, and we have not located, any statute otherwise permitting the
trial court to provide a deliberating jury with a written transcript of a witness’s testimony. Nor do
the parties point us to, and we have not located, any controlling case. Most cases involving article
36.28 concern whether there was sufficient indication the jury disagreed such that the trial court
should even have provided readback of witness testimony or whether the trial court properly
ascertained the scope of the disputed witness testimony to be provided by readback to the jury. But
this case does not present such issues. See infra note 2.
       2
           The discretionary portions of the statute are not at issue because appellant did not object
in the trial court and does not challenge on appeal that the jury disagreed as to his testimony or the
content of his testimony provided.
       3
           The Court of Criminal Appeals has not substantively addressed a violation of the
nondiscretionary portion of article 36.28. The court has not yet categorized a litigant's right to only
have the jury hear oral readback of the court reporter’s notes of disputed witness testimony or
disputed testimony repeated “verbatim” by the witness on the stand. In other words, it is not settled
under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), whether such an error needs to be
preserved at trial (as it was here) to be raised on appeal. Nor has the Court of Criminal Appeals
considered whether such error is purely statutory or perhaps may have some constitutional
dimension that affects whether it should be subject to harmless-error analysis under rule 44.2(a).
See Tex. R. App. P. 44.2(a) (“If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.”).

                                                  4
rights. See Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”); Thomas, 505 S.W.3d
at 925 (applying rule 44.2(b)). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.” King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Kotteakos v. United
States, 328 U.S. 750, 776 (1946). “[A]n error had a substantial and injurious effect
or influence if it substantially swayed the jury’s judgment.” Thomas, 505 S.W.3d at
926. 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.” Kotteakos, 328 U.S. at
765. But if “the error did not influence the jury, or had but very slight effect, the
verdict and the judgment should stand.” Id. at 764.

      Appellant argues that seeing the testimony in written form “may have
substantially swayed the jury to believe that [appellant]’s shooting of . . .
[complainant Christopher Joel] Barriere was intentional or knowing.” Appellant
contends that “[i]f not for the emphasis on this testimony, the jury may quite possibly
have found [appellant] guilty of only manslaughter or criminally negligent
homicide.”

      A person commits murder “if he . . . intentionally or knowingly causes the
death of an individual [or] intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual.” Tex. Penal
Code. Ann. § 19.02(b). “A person acts intentionally, or with intent, with respect . . .
to a result of his conduct when it is his conscious objective or desire to . . . cause the
result.” Tex. Penal Code. Ann. § 6.03(a). “A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result.” Tex. Penal Code. Ann. § 6.03(b).

      A person commits manslaughter “if he recklessly causes the death of an

                                            5
individual.” Tex. Penal Code. Ann. § 19.04(a). “A person acts recklessly, or is
reckless, with respect to . . . the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that . . . the result will
occur.” Tex. Penal Code. Ann. § 6.03(c).

      A person commits criminally-negligent homicide “if he causes the death of an
individual by criminal negligence.” Tex. Penal Code. Ann.§ 19.05(a). “A person acts
with criminal negligence, or is criminally negligent, with respect to . . . the result of
his conduct when he ought to be aware of a substantial and unjustifiable risk that . . .
the result will occur.” Tex. Penal Code. Ann. § 6.03(d).

      Lesser-included offenses, such as manslaughter and criminally-negligent
homicide, are properly submitted to the jury if the record contains some evidence
which would permit a jury to rationally find that if the defendant is guilty, he is guilty
of only the lesser offense. See Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App.
1984). This is so regardless of whether the evidence is weak, impeached, or
contradicted. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). A
defendant’s own testimony, though contradicted, is sufficient to require an
instruction on a lesser-included offense. Hunter v. State, 647 S.W.2d 657, 658 (Tex.
Crim. App. 1983). In appellant’s charge, the jury was provided with both
manslaughter and criminally-negligent homicide as lesser-included offenses to
murder. The State did not object to the inclusion of manslaughter and
criminally-negligent homicide.

      Implicit in the definitions of manslaughter and criminally-negligent homicide
is the concept that the actor must not have acted intentionally or knowingly; the actor
must not have intended the resulting death or been aware that a death was reasonably
certain to occur. See Tex. Penal Code Ann. § 6.03(a–b). Accordingly, both offenses
are lesser felonies. See Tex. Penal Code. Ann. §§ 19.02(c) (murder is first-degree

                                            6
felony),   19.04(b)     (manslaughter      is   second-degree      felony),      19.05(b)
(criminally-negligent homicide is state jail felony). Having found appellant guilty of
murder, the jury assessed his punishment at 30-years imprisonment. If the jury
instead had returned a guilty verdict on manslaughter, it may have assessed fewer
than thirty years, down to the minimum sentence of 25-years imprisonment for
appellant as a habitual felon. See Tex. Penal Code. Ann. § 12.42(d) (punishment
range for habitual felony offender is 25 to 99 years). More significantly, if the jury
had returned a guilty verdict on criminally-negligent homicide instead of on murder
or manslaughter, appellant would not have even been subject to punishment as a
habitual felon and could not have received 30-years imprisonment. See Tex. Penal
Code. Ann. §§ 12.35(a) (punishment range for state jail felony is 180 days to two
years), 12.42(d) (habitual-felon statute does not apply to state jail felony).

      As for the evidence, certainly, there was no real dispute that appellant shot
and caused the death of Barriere. Essentially, “the sole issue at trial concerned
appellant’s intent.” See Lugo, 667 S.W.2d at 149. During closing, the State certainly
focused the jury on this contested element, stating that it had to prove “what’s in
[appellant’s] mind. Did he intend that this happen?” Defense counsel also informed
the jury that appellant’s intent was the key element:

      So when you deliberate about your independent verdict, if you do not
      believe the State has proven that Vincent Stredic intentionally caused
      the death of Christopher Barriere, you have found him not guilty of
      murder; and you then must decide whether this accident was
      manslaughter or criminally negligent homicide. And I would submit to
      you that that’s where your focus is going to be during your deliberation.
The State discussed various evidence in its effort to prove appellant’s intent,
including the surveillance video from the gas station, testimony from Rodrick Harris,
and appellant’s video statement. In addition, however, the State specifically
highlighted appellant’s testimony on the stand for the jury, comparing it to what he
                                           7
said and did not say in his video statement and arguing that his trial testimony was
concocted:

      Basically the testimony that he gave to you on the stand that he’s had a
      year to think about now, he had that opportunity to tell them at that
      time; but he doesn’t. I can tell you exactly why he doesn’t. Because at
      that point he hasn’t had a chance to really formulate his story.
      Here, appellant’s disputed testimony provided to the jury by transcript
concerned whether appellant “felt threatened” by Barriere and Harris. The trial court
provided approximately four pages of transcript excerpts to the jury. In relevant part,
appellant’s testimony on direct indicated that Barriere took a couple of steps toward
appellant, appellant was afraid, and appellant raised the shotgun “just to scare” and
“back [Barriere] up.” Appellant’s testimony on cross indicated that Harris told
appellant “you’re not going to leave me here” and charged appellant; appellant was
holding the gun but pointed it up in the air, not at Harris. Appellant’s testimony on
re-direct indicated he was scared when Barriere was coming towards appellant and
he thought Barriere could seriously injure or even kill him. Appellant’s testimony
on re-cross indicated that when the “gun went off the first time,” Harris was actually
walking away from appellant; appellant was not trying to defend himself with the
gun, and it “just accidentally went off.” Appellant’s testimony on further re-direct
indicated he was trying to defend himself by raising the gun and showing it to
Barriere and Harris.

      Ordinarily, the jury is not allowed to rehear or reconsider any testimonial
evidence. Cf. Tex. Code Crim. Proc. Ann. art. 36.25. However, as here, the jury may
properly ask the trial court for a readback of witness testimony to help it resolve its
factual dispute. See Tex. Code of Crim. Proc. Ann. art. 36.28; Thomas, 505 S.W.3d
at 923. There is no question that the jury faced disagreement regarding what
appellant’s trial testimony revealed about his intent, which is a question of fact. See

                                          8
Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). There is no question
that the jury requested the trial court’s help in resolving its dispute. There is also no
question that, if the jury was going to return a verdict of guilty, determining
appellant’s culpable mental state at the time of the shooting was critical to the jury’s
finding him guilty of murder versus a lesser-included offense of manslaughter or
criminally-negligent homicide.

      The particular question we face is whether the trial court’s answering the
jury’s disagreement about witness testimony by providing a written transcript that
the jury was able to read during deliberations commented on the weight of the
evidence and harmed appellant. We acknowledge that we would not be facing this
question if the trial court had complied with article 36.28 by providing oral readback
of appellant’s disputed testimony. But the trial court here violated article 36.28 by
sending excerpts of the court reporter’s notes back to the jury room and in doing so
clearly abused its discretion.

      Instead of providing the jury with it once by oral readback in the courtroom,
the trial court treated appellant’s disputed trial testimony as an admitted written
exhibit so that it was available to be passed among the jury in the jury room, and to
be read and considered without time or other restraint. See Tex. Code Crim. Proc.
Ann. art. 36.25 (“There shall be furnished to the jury upon its request any exhibits
admitted as evidence in the case.”). Although bringing out the jury and providing it
with one-time oral readback of disputed testimonial evidence properly strikes a
balance between the trial court’s commenting on the weight of the evidence with the
need to provide the jury with the means to resolve any factual disputes, Thomas, 505
S.W.3d at 923, we conclude that the provision of excerpts from the court reporter’s
notes in transcript form concerning an essential element of the alleged offenses to
be accessed and considered as written evidence in the jury room, over objection,

                                           9
amounted to an impermissible comment on its importance by the trial court and
unfairly tipped that balance in favor of the State (and the highest degree of offense,
murder) in appellant’s case. See Tex. Code Crim. Proc. Ann. art. 38.05 (“In ruling
upon the admissibility of evidence, the judge shall not discuss or comment upon the
weight of the same or its bearing in the case, but shall simply decide whether or not
it is admissible; nor shall he, at any stage of the proceeding previous to the return of
the verdict, make any remark calculated to convey to the jury his opinion of the
case.”).4

       This is especially the case when appellant’s testimony indicated he could not
maintain a consistent story about what happened and what he felt during the incident,
i.e., his culpable mental state. Instead of resolving its disagreement over appellant’s
testimony based on listening to it being read back orally one time in the courtroom,
the jury was able to (re)read and (re)consider his conflicting testimony about what
was “in his mind”—in writing, in the jury room, as much as it may have wanted. In
appellant’s case, when the State expressly attacked and described appellant’s trial
testimony concerning the sole issue in the case as “formulated,” or in other words, a

       4
          The authority “to the contrary” on which the dissent relies does not control or carry the
day in appellant’s particular case. None of those cases involved circumstances in which an
appellant timely raised a “specific legal objection . . . that [providing the disputed testimony in
transcript form] is a comment on the weight of the evidence by the Court,” like appellant did here.
None of those cases involved the particular highlighting of an appellant’s own trial testimony—
regarding whether he possessed the requisite intent to have committed murder as opposed to a
lesser-included offense—at issue here.
        Miller v. State involved a bill-of-exception procedure that no longer exists, and there is no
discussion of error preservation of any statutory violation. Miller’s discussion of harm consisted
of a conclusory determination that the defendants had not met their burden to show “some injury
to themselves by said action of the court.” 79 S.W.2d 328, 330 (Tex. Crim. App. 1935); see also
Jones v. State, 402 S.W.2d 191, 194 (Tex. Crim. App. 1966) (citing Miller for same). In Higdon
v. State, 764 S.W.2d 308, 310 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d), the appellant
waived any error in the trial court’s article 36.28 procedure at the time the transcript in question
was offered to the jury. Moreover, in Higdon, the appellant was not prejudiced when he also
“acquiesced” to the trial court’s sending his own trial testimony to the jury in transcript form.

                                                 10
lie, this was not an insignificant error.5 Additionally, in appellant’s case, the jury’s
determination of this sole issue meant a sentence of 30 years instead of as few as
180 days.

       Without invading the role of the jury, we can never know for sure what
influenced this jury in making its verdict, given the almost impenetrable wall
surrounding deliberations. See Tex. R. Evid. 606(b). Under these circumstances,
based on our review of the whole record, we are not convinced that the trial court’s
actions did not influence the jury’s verdict or only had but very slight effect. See
Kotteakos, 328 U.S. at 764. We “cannot say, with fair assurance, after pondering all
that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” See id. at 765. Instead, we
harbor “grave doubts” that this error substantially influenced the jury’s decision to
find appellant guilty of murder instead of a lesser-included offense, and we cannot
disregard it.6 See id.

       5
          We, of course, are not saying that a trial court’s provision of disputed trial testimony to
the jury in transcript form in violation of article 36.28 could never be harmless.
       6
          The dissent argues that appellant was not harmed because the content of the testimony
sent back in transcript form was the same as what would have been read to the jury if the trial court
had complied with article 36.28. This position effectively nullifies the legislature’s plain,
unambiguous intent in passing not only article 36.28, but also article 36.25, regarding the
authorized methods available to the trial court to provide evidence to a deliberating jury. The
legislature only allows the trial court to provide a deliberating jury with requested admitted
exhibits and with readback of disputed testimony.
        The dissent further argues that even if a written format emphasized the testimony more
than an oral format, appellant was not harmed because testimony from both the State’s and his trial
court’s examination of him was sent back to the jury. While the testimony provided was not
one-sided in the sense that it was not just elicited by the State, it was one-sided in that it involved
appellant’s impeachment of himself as to his culpable mental state during the shooting, which
favored the State. The undue emphasis was of evidence clearly detrimental to appellant.
       Finally, the dissent asserts there was other evidence to support murderous intent and the
State focused on appellant’s actions in its closing, so that the trial court’s conduct can be
disregarded as a procedural irregularity. For the reasons expressed above, we disagree. While the
evidence may have been legally sufficient to support a murder conviction, the trial court’s
                                                  11
        Therefore, after granting rehearing on our own motion, we sustain appellant’s
first issue, reverse the trial court’s judgment, and remand the case for further
proceedings. See Tex. R. App. P. 43.2(d). Appellant’s motion for en banc
reconsideration is denied as moot.

       In addition to the issue of the unconstitutionality of section 133.058(a) with
regard to the consolidated court cost, appellant argued issues that the evidence was
insufficient to support the punishment enhancement for burglary of a habitation and
the unconstitutionality of the retention by Harris County of a ten-percent service fee
also under section 133.058(a) of the jury-reimbursement and indigent-defense fees.
Because these issues would not afford appellant any greater relief, we need not reach
them. See Tex. R. App. P. 47.1.




                                              /s/     Charles A. Spain
                                                      Justice


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




improper highlighting of appellant’s conflicting trial testimony regarding his culpable mental state
while the jury was deliberating that sole issue (without any instruction that the trial court was not
in fact emphasizing appellant’s testimony to the jury) had more than a slight effect. See Kotteakos,
328 U.S. at 765 (“The inquiry cannot be merely whether there was enough to support the result . .
. .”).

                                                 12
