Hicks, Fredrick Lee v. The State of Texas--Appeal from 155th District Court of Austin County

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00775-CR

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FREDRICK LEE HICKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2001R-0056

O P I N I O N

The appellant was convicted by a jury of burglary and sentenced to 20 years confinement in the Texas Department of Criminal Justice, Institutional Division. In his sole point of error, the appellant argues the trial court erred by commenting on the weight of the evidence in answering a jury question during deliberation. We affirm.

FACTUAL BACKGROUND

Tia Johnson testified she let the appellant, her boyfriend, borrow her car one evening. Because appellant did not return her car, Johnson went looking for him the next morning. When she found him, they agreed to meet that night at her house after work. That night, appellant packed the trunk of Johnson=s car with some of his belongings. The next morning, Johnson saw him put a box in the trunk of her car. After Johnson and appellant started fighting, Johnson got into her car, drove to her neighbor=s house, and called the police. The police arrested appellant at Johnson s house and searched her house and her car, where they found several items appellant had stolen, including a gun inside the box in Johnson s trunk and a rifle in her attic. Appellant was charged with burglary.

At trial, a police officer testified he found one of the stolen guns in Johnson=s home in the attic area of the back bedroom. During jury deliberation, the jury sent a note asking the trial court to [p]lease provide transcript of first officer with respect to where he found the assault rifle. The court replied, [t]he officer testified that the gun was found in the attic area above the bedroom in Tia Johnson s house. The jury found appellant guilty, and he appealed.

DISCUSSION

To complain on appeal about errors made during trial, the error must have been preserved for appeal by a trial-time objection. Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); Boatwright v. State, 933 S.W.2d 309, 310B11 (Tex. App.CHouston [14th Dist.] 1996, no writ). Failure to object at trial waives the issue on appeal, unless the harm is egregious. Hollins, 805 S.W.2d at 476. To preserve error regarding a court=s communication with the jury, the appellant must either object or file a formal bill of exception. Boatwright, 933 S.W.2d at 310B11. If appellant does neither, the actions of the trial court are presumed to be in compliance with applicable statutes, and any error is waived. Id.

The appellant did not object to the trial court s answer to the jury=s question. Because the appellant did not preserve error, we overrule his sole point of error. See Boatwright, 933 S.W.2d at 310B11.

Even if the appellant had objected to the court=s answer, the court s answer was not a comment on the weight of the evidence. The Texas Court of Criminal Appeals has held that telling the jury what the witness said is not a comment on the evidence. See Mathis v. State, 471 S.W.2d 396, 397 (Tex. Crim. App. 1971). In Mathis, the jury questioned whether a porch light was on. The trial court told the jury which witness testified to the information, which was not a comment on the weight of the evidence. See id.

As in this case, the trial court gave the jury the correct information. When the officer testified about searching Johnson s house, he said the gun was found in the back bedroom up in the attic area. The court told the jury that, the officer testified that the gun was found in the attic area above the bedroom in Tia Johnson s house. The trial court did not mislead the jury or provide incorrect information.

We affirm the trial court s judgment.

/s/ Michol O=Connor

Justice

Judgment rendered and Opinion filed October 17, 2002

Panel consists of Chief Justice Brister, Justices Hudson and O=Connor.*

Do Not Publish C Tex. R. App. P. 47.3(b).

* The Honorable Michol O=Connor, Retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.