COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00095-CR

DOUGLAS LYNN KIRK APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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DISSENTING OPINION

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I agree that the evidence sufficiently supports the murder conviction and 

that any error in the admission of evidence was harmless. But I disagree with the 

majority’s holding that the trial court did not err by supplementing the jury charge 

sua sponte after the jury had begun deliberating. This court has noted, 

Article 36.16 of the code of criminal procedure governs 

supplemental jury charges, and it does not, in all instances, prevent 

the trial court from submitting a supplemental charge after 

deliberations have begun. Article 36.16 permits a supplemental 

charge as follows:
2

After the argument begins no further charge shall be 

given to the jury unless required by the improper 

argument of counsel or the request of the jury, or unless 

the judge shall, in his discretion, permit the introduction 

of other testimony, and in the event of such further 

charge, the defendant or his counsel shall have the right 

to present objections in the same manner as is 

prescribed in Article 36.15.

Further, the court of criminal appeals has consistently held that a 

trial court may withdraw and correct its charge if convinced an 

erroneous charge has been given.1

But article 36.16 does not contain the caselaw exception,

2

although the

legislature has had ample time to amend the statute since courts created this 

exception.3

In the case now before this court, the jury was deadlocked and could not 

reach a verdict as to count one. The jury had not been instructed to consider 

succeeding counts if they could not reach agreement on the first count. The jury 

did not request any additional instruction. Although the majority relies in part on 

Roberson in holding that the trial court properly supplemented the jury charge 

 

1Roberson v. State, 113 S.W.3d 381, 384 (Tex. App.—Fort Worth 2003,

pet. ref’d) (quoting Tex. Code Crim. Proc. Ann. art. 36.16 (West 2006)) (citations, 

alterations, and internal quotation marks omitted).

2

Tex. Code Crim. Proc. Ann. art. 36.16.

3See Smith v. State, 898 S.W.2d 838, 854–55 (Tex. Crim. App.) (relying on

Bustillos v. State, 464 S.W.2d 118, 125–26 (Tex. Crim. App. 1964), and Nowlin v. 

State, 76 Tex. Crim. 480, 175 S.W. 1070, 1072 (1915), for the exception), cert. 

denied, 516 U.S. 843 (1995).
3

after the case had been submitted to the jury,

4 Roberson is not really sound 

authority for that holding. In Roberson, we stated, 

Appellant relies upon Moore v. State, in which the First District 

Court of Appeals reversed and remanded a case involving a 

supplemental charge given to the jury after closing arguments had 

been completed. Moore is distinguishable from Appellant’s case, 

however, because the trial court in Moore violated article 36.16, 

in part, by giving a supplemental charge when there had been 

no request of the jury.5

Here, unlike in Roberson, the jury did not request an additional charge.

Further, the majority does not indicate that the trial court stated on the record that

the original jury charge was erroneous, nor does the majority hold that the trial 

court’s original charge was erroneous. Had Appellant requested the additional 

instruction, we would be looking at a question of invited error.6 But Appellant did 

not request and did object to the additional instruction.

As the Texas Court of Criminal Appeals recently reminded us,

When we interpret statutes, we seek to effectuate the 

collective intent or purpose of the legislators who enacted the 

legislation. In order to do this, we necessarily focus our attention on 

the literal text of the statute in question and attempt to discern the 

fair, objective meaning of that text at the time of its enactment. This 

is because the law is the only thing that is actually enacted through 

compromise and debate, and because it is the only definitive 

evidence of what the legislators had in mind at the time of 

 

4Maj. Op. at 23–24.

5Roberson, 113 S.W.3d at 385 (emphasis added) (citation omitted).

6See Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988), cert. 

denied, 492 U.S. 912 (1989). 
4

enactment. Further, under our constitution, the judiciary is supposed 

to faithfully follow and enforce the adopted text.

For these reasons, if the meaning of the text when read using 

the established canons of construction of such text should have 

been plain to the legislators who voted on it, we ordinarily give effect 

to that plain meaning, unless the plain text would lead to absurd 

consequences that the legislature could not possibly have intended.7

I would hold that the trial court erred by sua sponte supplementing the jury 

charge. Because the majority opinion contravenes the clear wording of article 

36.16 to hold that the trial court did not err, I must respectfully dissent.

 /s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: January 23, 2014

 

7State v. Cooper, Nos. PD-0001-13, PD-0202-13, 2013 WL 6081452, at *2 

(Tex. Crim. App. Nov. 20, 2013) (citations omitted).