## COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 12

- 00095

- CR

DOUGLAS LYNN KIRK APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

------------


### DISSENTING O PINION

------------

I agree that the evidence sufficiently supp orts the murder conviction and

that any error in the admission of evidence was harmless. B ut 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. T his 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 submi tting 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 o f 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 Ar ticle 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 a rticle 36.16 does not contain th e caselaw exception

, 2 although the

legis lature has had ample time to amend the statute since courts creat ed 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 i f they could not reach agreement on the first count. The jury

did not request any additional instruction. A lthough the majority rel ies in part on

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

1 Roberson 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.

3 See 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. Cr im . 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 M oore 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, t he majority does not indicate that the trial court state d on the record t hat

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 App ellant 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 th at 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

4 Maj

. Op. at 2 3

– 2 4

.

5 Roberson

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

6 See 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 co ntravenes 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

7 State v. Cooper

, Nos. PD

- 0001

- 13, PD

- 0202

- 13, 2013 WL 6081452, at *2 (Tex. Crim. App. Nov. 20, 2013) (citations omitted)

.