Background
Wesley David Battles was convicted of three counts of aggravated sexual assault of a child based on allegations that he penetrated T.W.’s mouth, vagina, and anus. T.W. was five or six when the abuse began and twelve at trial. The jury assessed seventy-five years’ imprisonment on each count, and the trial court entered judgments consistent with the verdicts.
During guilt-phase deliberations, the jury requested T.W.’s testimony concerning vaginal penetration, including the attorney’s questions. The trial court read the requested transcript excerpt, which included T.W.’s testimony that Battles put two fingers in her vagina. Afterward, the court confirmed that both parties approved its response, and Battles’s counsel answered, “Yes.”
The Court’s Holding
The Third Court of Appeals affirmed. It held that Battles failed to preserve his complaint that the readback violated Texas Code of Criminal Procedure article 36.28 because the jury’s note did not expressly identify a disagreement about T.W.’s testimony. A complaint about an improper testimony readback must be raised when the testimony is read, but Battles did not object and instead approved the trial court’s response.
The court rejected Battles’s attempt to characterize the readback as a supplemental jury instruction subject to appellate review despite the absence of an objection. The trial court did not substantively answer a legal question, summarize the evidence, or express an opinion about it; it merely read testimony the jury had requested and previously heard. The readback was confined to the topic identified by the jury, and the court’s direction to continue deliberating did not constitute an additional instruction or an improper comment on the evidence.
Key Takeaways
- A defendant must timely object to an allegedly improper readback of testimony under article 36.28 to preserve the issue for appeal.
- Reading requested trial testimony back to a deliberating jury does not become a supplemental jury instruction merely because the jury did not expressly state that its members disagreed about the testimony.
- A neutral readback limited to the testimony requested by the jury is distinct from a substantive judicial response that states the law, summarizes evidence, or comments on its weight.
Why It Matters
The decision underscores the need for defense counsel to object immediately when a trial court proposes reading testimony to a deliberating jury, including when the jury’s note does not expressly identify a factual disagreement. Affirmatively approving the proposed response forecloses a later article 36.28 challenge.
It also limits efforts to recast an unpreserved readback objection as jury-charge error. At least where the court neutrally recites previously admitted testimony within the jury’s request, the special appellate framework for unobjected-to charge errors does not apply.