Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00846-CR Wesley David Battles, Appellant v. The State of Texas, Appellee FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 21DCR84105, THE HONORABLE DEBBIE GARRETT, JUDGE PRESIDING MEMORANDUM OPINION Wesley David Battles was convicted of three counts of aggravated sexual assault of a minor and was sentenced to seventy-five years’ imprisonment in each count. See Tex. Penal Code §§ 12.32, 22.021. The victim alleged in all three counts was T.W., who was twelve at the time of trial and five or six when the abuse started. 1 On appeal, Battles contends that the trial court improperly read part of T.W.’s testimony to the jury during its deliberations. We will affirm the trial court’s judgments of conviction. BACKGROUND Battles became involved with Mother when T.W. was five or six. As the relationship progressed, Mother and T.W. moved in with Battles. At some point, T.W. was 1 Because T.W. was a minor during the time that the abuse occurred, we will refer to her by an alias and to her family members by their relationships to her. See Tex. R. App. P. 9.10(a)(3) (defining sensitive information). placed into a foster home. While living with Foster Mother, T.W. told Foster Mother that Battles had been sexually abusing her. Foster Mother reported the abuse to the Department of Family and Protective Services (“Department”), and the Department reported the abuse to the police. The police investigated the allegations, and T.W. was taken to a child advocacy center for a forensic interview and was examined by a sexual assault nurse examiner (“SANE”). The police arrested Battles after completing their investigation, and he was charged with three counts of aggravated sexual assault of a child for penetrating T.W.’s mouth, vagina, and anus. During the trial, the State called as witnesses T.W., Foster Mother, a Department investigator, the forensic interviewer who interviewed T.W., and a SANE who reviewed the report prepared by other SANEs who examined T.W. Battles did not call any witnesses and chose not to testify. After both sides rested and closed, the jury began their deliberations. While deliberating, the jury sent a note to the trial court requesting the following: We would like the testimony of [T.W.]’s related to vaginal penetration to include the attorney’s questions on this topic. 2 After reviewing the question, the trial court called the jury back to the courtroom, informed them that it would be giving a response to the question, and read the following portion of the trial transcript to them: [Attorney]: And, did he ever do anything with his fingers? 2 The note also requested the following: “Also, can we have the legal definition of penetration of the sexual organ.” It appears from the record that the trial court declined to answer the second request, and Battles stated in his appellant’s brief that “there is no issue raised in this brief concerning that request.” 2 [T.W.]: Yes. [Attorney]: Can you show us which fingers he used? [T.W.]: (Indicating) [Attorney]: These two? [T.W.]: Yeah. [Attorney]: And, what did he do? [T.W.]: He put them in my vagina. [Attorney]: How many times did he do that? [T.W.]: Only once. [Attorney]: Did he do anything with his fingers after that? [T.W.]: He, like, put them in his mouth and then he, like, wiped it off. Once the trial court finished reading, it told the jury, “All right. So, that is the answer to the . . . question. . . . And, y’all are free to continue your deliberations.” After the jury left the courtroom, the trial court confirmed that the parties approved of the response, and both parties responded, “Yes.” The jury continued their deliberations and returned guilty verdicts in all three counts. During the punishment phase, Battles called as witnesses two friends. After the parties finished presenting their closing arguments, the jury recommended that Battles be 3 sentenced to seventy-five years’ imprisonment on each count. The trial court rendered its judgments of conviction consistent with the jury’s verdicts. Battles appeals the trial court’s judgments of conviction. DISCUSSION In his sole issue on appeal, Battles contends that the trial court erred by reading to the jury the portion of T.W.’s testimony set out above. When presenting this issue, he makes several related arguments. First, Battles contends that the trial court’s actions violated article 36.28 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 36.28. That provision governs when a jury may have the testimony from a witness read back to them and provides, in relevant part, as follows: In the trial of a criminal case in a court of record, if the jury disagree 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 . . . . Id. In light of this statutory language, Battles suggests that a witness’s testimony should be read back to the jury only if the jury first communicates that there is a disagreement among its members about the witness’s testimony. Although he acknowledges that the jury communicated their desire to hear a portion of T.W.’s testimony, he asserts that the jury did not indicate in their note that there was some type of disagreement. “Article 36.28 provides the exclusive procedure for repeating earlier testimony to the jury.” Stredic v. State, 663 S.W.3d 646, 654 (Tex. Crim. App. 2022). “This statute seeks to balance the concern that the trial court not comment on the evidence with the need to provide the 4 jury with the means to resolve any factual disputes it may have.” Balderas v. State, 517 S.W.3d 756, 797 (Tex. Crim. App. 2016). As set out above, Battles did not object to the trial court’s reading of T.W.’s testimony to the jury or otherwise indicate that the trial court’s actions were not proper under article 36.28. Generally, to preserve error for appeal, a defendant must make a timely, specific objection, request, or motion to the trial court stating the specific grounds for the ruling sought by the complaining party, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a). Preservation of error is a “systemic requirement” on appeal. Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016). “An appellant fails to preserve error by failing to object when he had the opportunity.” Burt v. State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013). “To avoid forfeiting a complaint on appeal, the party must ‘let the trial judge know what he wants, why he thinks he is entitled to it, and . . . do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.’” Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Appellate courts should not address the merits of an issue that has not been preserved for appellate consideration. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012). The Court of Criminal Appeals has explained that “[c]omplaints about error in the reading of trial testimony must be preserved by objection at the time of the reading.” Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (plurality op.); see Hollins v. State, 805 S.W.2d 475, 476-77 (Tex. Crim. App. 1991). Because Battles did not object below, he has not preserved any complaint concerning article 36.28. See Heller v. State, 279 S.W.3d 823, 825 (Tex. App.—Amarillo 2008, no pet.) (determining that defendant failed to preserve complaint 5 that trial court erred by reading back testimony where jury note failed to show disagreement about testimony and noting that, “far from objecting, appellant told the court its planned course of action was ‘fine’”); see also Henry v. State, No. 11-24-00257-CR, 2026 WL 1260923, at *9, *10 (Tex. App.—Eastland May 8, 2026, no pet.) (mem. op., not designated for publication) (explaining that “caselaw provides that a defendant must preserve a complaint that the trial court failed to comply with Article 36.28” and deciding that defendant did not preserve complaint for appeal because he “failed to lodge a timely objection at trial, instead agreeing with the trial court’s proposal”). Anticipating that this Court would conclude that the complaint set out above was not preserved, Battles contends in his next set of arguments that the trial court’s actions resulted in jury-charge error. When making this claim, Battles characterizes the trial court’s response to the jury note as a supplemental jury instruction. After construing the trial court’s response in this manner, he notes that jury-charge errors may be addressed even if no objection was made to the trial court. Building on the preceding, Battles posits that he can challenge the trial court’s decision to read T.W.’s testimony as jury-charge error and that giving the supplemental instruction was error because the jury did not express that it had a disagreement before the trial court read the testimony as required by article 36.28. Further, he argues that the trial court’s supplemental instruction constituted an impermissible comment on the weight of the evidence. As Battles points out in his brief, the Court of Criminal Appeals has explained that a “trial court ordinarily provides instructions to the jury in their entirety before the jury retires to deliberate” but that it “may give further written instructions upon the jury’s written request for additional guidance regarding applicable law.” Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011); see also Tex. Code Crim. Proc. arts. 36.14 (requiring trial court to 6 produce jury “charge distinctly setting forth the law applicable to the case”), .16 (setting out procedure for giving jury final charge and noting that after jury begins deliberations, “no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony”). The Court elaborated by stating that when a “trial court responds substantively to a question the jury asks during deliberations, that communication essentially amounts to a supplemental jury instruction, and the trial court must follow the same rules for impartiality and neutrality that generally govern jury instructions.” Lucio, 353 S.W.3d at 875. Further, the Court explained as follows: Because a trial court’s answer to a jury’s question must comply with the same rules that govern charges, the trial court, as a general rule, must limit its answer to setting forth the law applicable to the case; it must not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any response calculated to arouse the sympathy or excite the passions of the jury. Id. However, in this case, the trial court did not respond substantively to the jury’s note or set forth any applicable law; instead, it simply read the testimony the jury requested and had already heard. Cf. id. at 877 (noting that rule prohibiting trial court from singling out piece of evidence in its instructions “does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury alone”). That procedure is expressly authorized by statute. See Tex. Code Crim. Proc. art. 38.28. Although a party may object on the ground that the disagreement requirement of the statute was not satisfied, see Howell v. State, 175 S.W.3d 786, 789-93 (Tex. Crim. App. 2005) (addressing complaint that trial court 7 improperly read testimony “back to the jury in the absence of a disagreement”), we have been unable to find authority for the proposition that the alleged absence of a disagreement turns the read-back testimony into a jury instruction that may be challenged on appeal as jury-charge error, cf. Stredic, 663 S.W.3d at 655 (distinguishing between jury instructions, which can constitute impermissible comments on evidence even if neutral, and “reading back testimony under Article 36.28,” which draws “some” attention to testimony, because “the statute specifically authorizes that procedure”). 3 Additionally, the absence of authority is explained, at least in part, by the fact that the legislature did not characterize the readback of testimony as jury instructions or as being part of a supplemental jury charge. Compare Tex. Code Crim. Proc. arts. 36.14 (setting out trial court’s role in providing jury charge), .16 (identifying circumstances in which jury charge may be altered after deliberations begin), with id. art. 36.28 (setting out circumstances in which trial court may read to jury testimony from trial). Further, when enacting the provision setting out how jury charges may be reviewed on appeal through article 36.19 of the Code of Criminal Procedure, the legislature specified that the provision applied if “it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17, and 36.18 has been disregarded.” Id. art. 36.19. The appeal provision did not mention article 36.28 or its requirements. Id. Article 36.19 further specifies that “the judgment shall not be reversed 3 We note that none of the cases primarily relied on by Battles in his brief as support of this set of arguments involves a situation similar to that here where the trial court read testimony to the jury in response to a note from the jury. See Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (concluding there was error when trial court decided to include instructions regarding “the admissibility of a defendant’s refusal to take a breath test” because it constituted “an improper comment on the weight of the evidence”); Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (determining there was error when trial court provided instruction on factual matter rather than legal one by specifying that there were no correction facilities in particular county). 8 unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.” Id. The Court of Criminal Appeals considered the history of article 36.19 and its predecessors and interpreted its language and structure as authorizing the consideration of issues alleging jury-charge errors that were preserved and not preserved despite the general rule that claims be preserved but requiring that the two types of claims be subjected to different harm analyses. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Given that it is the uniqueness of article 36.19 that allows for consideration of unpreserved claims in a limited context, the lack of a reference in article 36.19 to the read-back provision located in article 36.28 bears significance. See Ogbuehi v. State, 706 S.W.3d 689, 694-95 (Tex. App.—Austin 2025, no pet.) (explaining that statutes should be construed in accordance with their plain meaning and that appellate courts should presume that every word has been chosen for reason). Moreover, article 36.28 contains no similar language concerning appeals. See Tex. Code Crim. Proc. art. 36.28. In addition, if the alleged error at issue in this case could be construed as jury-charge error, the usual factors for assessing the harm from jury-charge errors would have less of a logical fit in these circumstances. In performing a harm analysis, appellate courts “consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record.” See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); see also Vaughn v. State, 729 S.W.3d 450, 466 (Tex. App.— Austin 2025, no pet.) (setting out factors to consider when performing more traditional harm 9 analysis under Rule 44.2(b) of Rules of Appellate Procedure). Because readbacks occur after the jury charge has been given to the jury, the charge is unlikely to have any bearing or instruction on how juries consider the testimony read back to them. Concerning the evidence, the testimony read back was already presented to the jury and would be part of the entirety of the evidence that the jury could properly consider, and the jury requested that the particular testimony be read back. Similarly, the arguments of counsel would seem to not provide an easy tool for assessing harm because the arguments were made before the readback and could have properly been referring to the testimony as it had been presented at trial. Moreover, we note that in this case the trial court expressed no opinion regarding the testimony and did not provide its own summary, discuss the contents of the testimony, or provide a response intended to arouse sympathy or passion from the jury. Cf. Green v. State, 912 S.W.2d 189, 192, 193 (Tex. Crim. App. 1995) (explaining that trial court’s answer to jury’s note stating that witness did not use term “emotional problems” “was not a comment on the weight of the evidence” and did not express opinion on whether testimony could “support a conclusion appellant had ‘emotional problems’”). Additionally, the testimony read back was limited to the topic that the jury identified, and Battles does not argue otherwise. See Tex. Code Crim. Proc. art. 36.28; see Brown v. State, 870 S.W.2d 53, 56 (Tex. Crim. App. 1994) (affirming trial court’s decision to read back testimony and explaining that readback did not exceed “the bounds of the jury’s request”). Further, the only directive that the trial court provided was for the jury to continue their deliberations after the testimony was read, and that “does not amount to additional instructions.” See Martin v. State, 654 S.W.2d 855, 857 (Tex. App.—Dallas 1983, no pet.); see also Gonzales v. State, 680 S.W.3d 358, 382 (Tex. App.—Eastland 2023, pet. ref’d) 10 (determining that trial court’s directive to continue deliberations until unanimous verdict was reached was not improper comment “on the weight of the evidence” or coercive). In light of the preceding and under the circumstances present here, we cannot agree with Battles’s suggestion that his argument that the trial court’s alleged violation of article 38.26 by reading back T.W.’s testimony without verifying a disagreement among the jurors presents a jury-charge claim. See Tapps v. State, 257 S.W.3d 438, 448 (Tex. App.—Austin 2008) (determining that there was “no legal basis for extending the egregious error theory relating to unobjected-to jury charge error to the admission of unobjected-to evidence”), aff’d 294 S.W.3d 175 (Tex. Crim. App. 2009). For all these reasons, we overrule Battles’s sole issue on appeal. CONCLUSION Having overruled Battles’s sole issue on appeal, we affirm the trial court’s judgments of conviction. __________________________________________ Karin Crump, Justice Before Justices Triana, Crump, and Ellis Affirmed Filed: October 16, 2026 Do Not Publish 11