I tried an indecency case this week. The defendant had a party at his house several months after the offense where he provided alcohol to my victim and her 12 and 13 year old female friends. He and his buddy videotaped the girls getting drunk, dancing provocatively, and flashing the camera. The Judge made me redact from an original tape all but those sections that were actually taped by the defendant and that showed the victim. The original was SX-1. The redacted copy was SX-2. Though only SX-2 was admitted, both tapes mistakenly went back to the jury and were viewed by the jury. The court reporter discovered the problem, told the judge, who has told the atttorneys. Am I sure to have my case reversed? Does the defendant have to show harm? For what it is worth, the original tape is not very prejudicial. It just shows where the defendant's friend taped her doing a nasty dance.

bustamante v. state 106 sw3d 738 might be a good case to look at to start. in that case, the bailiff accidentally sent back to the jury room a co-defendant's statement that had never been admitted. the judge called each juror out and questioned them to determine whether they had looked at it, whether it would impact their decision, and then instructed them to disregard. the case was upheld.

it also might be safer if you don't oppose the defense attorney's motion for mistrial.

I don't know whether your jury reached a verdict, but let me tell you a similar story. Years ago I tried an aggravated sexual assault of a child with two 5 year old victims. During the deliberations, a visiting court reporter was told that the jury wanted to have some testimony read back. The judge was away and no attorneys were back yet. When I went down to the courtroom, I asked the bailiff where the court reporter was, and he replied, "she is in reading the testimony to the jury". I asked him to have her step out immediately, which he did and she did. She had already found and read to the jury the section they wanted.

When everyone else returned, we notified the judge and defense attorney what had happened. Paul Womack was sitting second with me, and asked me what I wanted to do. I could not put that child through a trial again at that point. We opted to go forward and deal with the issue later. The judge had the court reporter read into the record exactly what she had read to the jury.

Unfortunately (fortunately for me), I can't tell you what the appellate court thought, because a week after the defendant received a life sentence, he killed himself in the jail. No appeal.