Alfred Perez Arriaga v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00851-CR

Alfred Perez ARRIAGA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-0059

Honorable Mary Roman, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

A jury found defendant, Alfred Perez Arriaga, guilty of possession of a controlled substance and assessed punishment at forty years' confinement. In a single issue on appeal, defendant asserts the trial court erred by having testimony read to the jury that exceeded the scope of its question and resulted in an impermissible comment on the weight of the evidence. We conclude the trial court did not err and, therefore, we affirm.

DISCUSSION

When the jury asks the trial court to reread certain disputed testimony, the trial court must first determine if the jury's inquiry is proper under Texas Code of Criminal Procedure article 36.28. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994). If it is proper, the trial court must then interpret the communication, decide what sections of the testimony will best answer the inquiry, then limit the re-reading accordingly. Id. When a trial court reads too much or too little testimony to the jury, such a response may serve to bolster the State's case unnecessarily. See Jones v. State, 706 S.W.2d 664, 668 (Tex. Crim. App. 1986) (reading too little testimony); Pugh v. State, 376 S.W.2d 760, 762 (Tex. Crim. App. 1964) (reading too much testimony). The trial court does not abuse its discretion, however, when the testimony read to the jury provides the context for the specific testimony in dispute. See Brown, 870 S.W.2d at 56. We do not disturb the trial court's decision absent a clear abuse of discretion and a showing of harm. Id. at 55.

During jury deliberations, the jury requested additional information regarding the testimony of Officer Lopez. Its first question focused on two disputed areas: (1) whether Officer Lopez detailed his surveillance time by hours and days and (2) the exact statement defendant made to Officer Lopez regarding possession at the time of the initial confrontation. Over defendant's objection, the trial court had the court reporter read the following portions of testimony to the jury:

In response to the jury's first question:

Q. Did you begin to watch the location?

A. Yes, I did.

Q. For what length of time were you watching the location?

A. I was observing the house for approximately two to three weeks.

In response to the jury's second question:

Q. Okay. What were the statements that he made?

A. Once I advised him that we had a search warrant for his house on Arizona, he told me it was for heroin. He said the only thing I've got, in a slang word, for my own bones. That's the only thing I have.

Q. Do you remember his exact words?

A. (In Spanish.)

Q. Okay. He spoke in Spanish?

A. Yes, ma'am.

The jury resumed its deliberations. Subsequently, the jury presented another question inquiring whether Officer Lopez read defendant his Miranda rights prior to defendant making the statement about his possession of heroin. Over defendant's objection, the trial court had the court reporter read the following testimony to the jury:

Q. When you made contact with the defendant, did you present him with a copy of the warrant?

A. Yes, I did.

Q. Okay. And did you Mirandize him at the time?

A. Yes, I did.

Q. Did the defendant make any statements to you at the time that were not in response to any questioning on your part?

A. Yes, he did.

Q. Okay. Was he in custody at the time?

A. Yes, he was.

Q. Okay. What were the statements that he made?

A. Once I advised him that we had a search warrant for his house on Arizona, he told me it was for heroin. He said the only thing I've got, in a slang word, for my own bones. That's the only thing I have. (Emphasis added.)

Defendant contends the emphasized portion of testimony exceeded the jury's question and resulted in the trial court commenting on the weight of the evidence. We disagree. The testimony specifically answers the jury's question of whether Officer Lopez read defendant his Miranda rights before defendant made the statement regarding his possession of heroin. The testimony places into context the timing between the reading of defendant's Miranda rights and his statement regarding his possession of heroin. Either statement considered separately would not provide a proper context for the disputed testimony. Therefore, we conclude the trial court did not err in including the emphasized portion of testimony in response to the jury's question. In addition, even if the trial court erred in reading the emphasized portion of Officer Lopez's testimony to the jury, the answer did not harm the defendant because it did not amount to a comment on the weight of the evidence. See Tex. R. App. P. 44.2(b). See generally Green v. State, 912 S.W.2d 189, 193-94 (Tex. Crim. App. 1995); Mathis v. State, 471 S.W.2d 396, 397 (Tex. Crim. App. 1971).

We overrule defendant's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH