Judgment of November 26, 2019 Withdrawn; Motion for Rehearing Granted, 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 
2

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 
3

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 
4

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,3and 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.”).
5

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 
6

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 
7

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 
8

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 
9

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, 
10

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. 
11

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 
12

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 . . 

. .”).