Crumbley Jr., Robert Earl v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmedand Opinion filed October 3, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00815-CR

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ROBERT EARL CRUMBLEY, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris  County, Texas

Trial Court Cause No. 872,708

O P I N I O N

Robert Earl Crumbley, Jr., appeals a conviction for aggravated robbery[1] on the ground that the trial court erred by allowing testimony to be read back to the jury without first determining that the jury disagreed about the statement of a witness.[2] We affirm.

To preserve error for a failure to comply with Article 36.28, an appellant must either object or file a bill of exception. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); Boatwright v. State, 933 S.W.2d 309, 311 (Tex. App.CHouston [14th Dist.] 1996, no pet.). In this regard, we presume that the parties were present at the reading although the record is silent to that effect. Hollins, 805 S.W.2d at 476. However, even if an appellant or his attorney is not present at the time the trial court responds to a jury=s inquiry, the duty to preserve error is not alleviated. See Boatwright, 933 S.W.2d at 311. An appellant is still required to object as soon as the ground for objection becomes apparent. Hollins, 805 S.W.2d at 476.

In this case, the record reflects no objection by appellant, either at the time the testimony was requested by, and read to, the jury or at any later time the ground for objecting became apparent. Because appellant=s complaint was not raised in the trial court, it presents nothing for our review. Accordingly, his sole issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed October 3, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).

[1] A jury found appellant guilty, and the court imposed punishment of forty years confinement.

[2] See Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 1981) (A[I]f the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them . . . that part of such witness testimony or the particular point in dispute, and no other . . . .@).