PD-1035-20 02/24/2021
1. “The Fourteenth Court erred by holding a trial court cannot grant a jury’s request for a transcript of disputed testimony.”
2. “The Fourteenth Court erred by conducting a harm analysis that did not consider the strength of the State’s evidence, the weakness of the defense, or the fact that the supposed error did not bear on a legally determinative issue.”
Stredic was angry at his friends for making fun of his driving. When they stopped for gas, he grabbed a shotgun from the trunk and pointed it at his friend Barriere. Barriere ended up dead. Stredic left the gas station, only to return a few minutes later and shoot his other friend in the face. At his trial for murdering Barriere, Stredic claimed his friends were high on PCP. He denied acting in self-defense but testified that the gun just “went off.” During deliberations, the jurors disagreed about whether Stredic said he felt threatened by the men, and they asked to see the court reporter’s notes on that point. Stredic objected; the prosecutor argued it permissible to send back a transcript when the jury specifically asked for it. The trial court presented the jury with five partial pages of Stredic’s direct and cross-examination about whether he was afraid when he pointed the gun at Barriere. He was convicted.
On appeal, Stredic argued that providing the transcript violated Tex. Code Crim. Proc. art. 36.28, which outlines two procedures if the jury disagrees about testimony: (1) they may “have read to them” the part of the court reporter’s notes in dispute; or (2) if there is no court reporter or the notes cannot be read to the jury, they may have the witness repeat just that testimony in the “language [he] used on the trial.” After initially holding the error harmless, a new majority of the court of appeals on rehearing reversed Stredic’s conviction. It held that providing his testimony in transcript form amounted to an impermissible comment on the evidence. It concluded he was harmed because that testimony concerned an essential element of the offense. It showed he couldn’t maintain a consistent story and indicated “what he felt during the incident, i.e., his culpable mental state.” A dissenting justice would have found the error harmless. The dissent posited that providing something the jury asked for would not unduly emphasize it and pointed out that the transcript contained the same testimony that properly could have been read aloud. In a supplemental opinion, the majority rejected the State’s argument that the two named procedures in Art. 36.28 were not exclusive, holding that such a conclusion would render Art. 36.28 a nullity.
In its merits ground, the State argues that many, if not most, things that occur in a typical trial are not explicitly allowed by statute. It cites Milton v. State, 572 S.W.3d 234 (Tex. Crim. App. 2019), which permits use of visual aids in closing argument despite no express statutory authorization. The State also echoes the dissent by arguing that since the jury asked for the transcript, any import the jury gave to that testimony originated with the jury, not the judge.
As for harm, the State argues that the majority erred by limiting its harm analysis to the error itself and not considering “the strength of the State’s case, the weakness of the defense, or the fact that the transcribed testimony was tangential to any legally determinative issue.” It characterizes the defense’s “it just went off” claim as ridiculous, particularly given that (according to Stredic) the shotgun had bounced around in the trunk with a round in the chamber and only happened to discharge without a trigger pull while it was in his hands. It also takes issue with the majority’s conclusion that the transcribed testimony related to an element. Self-defense was not an issue in the case and testimony that Stredic was afraid would not resolve whether he acted intentionally or knowingly when he shot Barriere.
