Is Jury Request to Read Back Testimony Means It Is In ''Dispute'' ?

Texas Code of Criminal Procedure article 36.28 provides that "if the jury disagrees as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other." TEX. CODE CRIM. PROC. ANN. art. 26.28 (Vernon 1981). In Rodriguez v. State, 995 S.W.2d 876, 878 (Tex. App.--Houston [1st Dist.] 1999, pet. filed) the trial court did not err by reading back the testimony. In that case, the jury sent a note to the trial court asking for the testimony of two witnesses; the jury said nothing about whether the testimony was in dispute. Id. The trial court submitted a typed instruction and form to the jury to determine what, if any, testimony was in dispute. Id. In a second note, the jury responded that the testimony of one witness was in dispute. Id. The trial court permitted only that testimony to be read back to the jury. Id. Rodriguez claimed on appeal that the trial court had erred because he provided neither all of the requested testimony consistent with the first note, nor the corresponding cross-examination. Id. The court of appeals held that the trial court did not err in reading back only the portion of testimony requested in the second note. Id. A mere request for testimony does not reflect a dispute, and a trial court abuses its discretion by reading testimony to the jury without first determining that a dispute exists.