SUPPLEMENTAL MAJORITY OPINION ON REHEARING The State filed a motion for rehearing contending this court did not address its arguments that (1) appellant did not preserve error and (2) the Code of Criminal Procedure allows the State to act unless the Code specifically prohibits that action. We grant the motion for rehearing to consider these two issues. The State first argues that appellant did not preserve his argument that providing the jury with a written transcript of disputed testimony violated Code of Criminal Procedure article 36.28. Appellant made the following statements to the trial court: The position of the Defense is that it’s inappropriate to provide a written transcript of the testimony. We have no objection to a readback of the particular testimony that’s been selected by the Court, but we believe that providing a written transcript creates a greater emphasis and places more importance on that particular testimony since the jurors must recall from their own from being in trial what they heard as far as the other issues are concerned. While appellant does not specifically mention article 36.28, this specific ground is certainly “apparent from the context” of appellant’s remarks that he is discussing matters within the article’s purview. See Tex. R. App. P. 33.1(a)(1)(A). The State certainly understood at trial, as it responded with a discussion of the scope of article 36.28. While the high court’s interpretation of preservation of appellate complaints in criminal proceedings is undeniably stricter than in civil proceedings, Rule 33.1(a)(1)(A)’s “apparent from the context” language still applies. We overrule the State’s first issue that appellant did not preserve his complaint. The State’s second issue is that this court failed to address the following argument raised by the State: “The appellant correctly notes that Article 36.28 does not authorize trial courts to [give] transcripts to jurors. However, neither does Article 36.28 prohibit such a practice. It is silent on the matter entirely.” The State effectively argues that any practice not specifically prohibited by the Code of Criminal Procedure must be allowed. The sole case the State cites in support of this argument does not contain any such sweeping statement, nor does it address the Code of Criminal Procedure at all. See Milton v. State, 572 S.W.3d 234 (Tex. Crim. App. 2019).[1] Even if the State’s view of its powers under the Code of Criminal Procedure were correct, it would require an implausible reading of article 36.28 to apply it here. Article 36.28 sets forth the procedure that applies “if the jury disagree as to the statement of any witness.” Tex. Code Crim. Proc. Ann. art. 36.28. The statute then provides that, in such circumstances, the jury “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” or, in the absence of such notes, hear from the witness again. Id. While the statute does not spell out all of the potential ways the jury is not allowed to review the testimony of a witness, it is not difficult to connect the dots and conclude that procedures not authorized by the plain language of the article are prohibited. See id. Indeed, adopting the State’s theory would render article 36.28 a nullity, a toothless provision merely containing two examples of ways in which testimony possibly might be provided to the jury, as opposed to delineating the only two ways the jury is permitted to receive it. See id. In sum, the State would have us read article 36.28 in such a way as to violate the principal canon of statutory construction: to give effect to the plain meaning of the statute. See Boykin v. State, 818 S.W.2d 782, 786 (Tex. Crim. App. 1991) (describing this interpretive mode as “of ancient origin”).[2] We overrule issue two. Having granted the motion for rehearing and considered and overruled the State’s issues, we deny the State’s requested relief. The court’s previously issued opinions and August 13, 2020 judgment on rehearing remain unchanged. /s/ Charles A. Spain Justice Panel consists of Justices Wise, Zimmerer, and Spain (Wise, J., dissenting without opinion to denial of relief on rehearing). Publish—TEX. R. APP. P. 47.2(b).
