¶1(concurring).
¶2Article 36.27, Vernon’s Ann.C.C.P., reads as follows:
“When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must he written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
“All such proceedings in felony cases, shall be a part of the record and recorded by the court reporter.” (emphasis supplied)
¶3In Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), this court observed that the foregoing statute was a redraft of former Articles 676 and 677, Vernon’s Ann.C.C.P. 1925. Former Article 676 permitted the jury to communicate with the court either in writing or verbally. Former Article 677 required that additional instructions given after the jury’s retirement for deliberation be in writing.
¶4In light of Article 36.27, Vernon’s Ann. C.C.P., this court has repeatedly admonished judges that communications with the jury should be in writing. Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972); Smith V. State, 474 S.W.2d 486 (Tex.Cr.App.1971).
¶5The procedure used by the court in the instant case in orally communicating with the jury was thus not in compliance with the requirements of Article 36.27, Vernon’s Ann.C.C.P., which mandates that such communications be in writing and in open court and that the communications and instructions be first submitted to the accused and his counsel for examination and for objection, if any. See Verret v. State, 470 S.W.2d 883 (Tex.Cr.App.1971). However, an objection to the failure to follow the statutory procedure or a bill of exception, etc., is necessary to preserve error regarding the court’s communication with the jury during its deliberations. Verret v. State, supra; Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Herring v. State, 440 S.W.2d 649 (Tex.Cr.App.1969).. The appellant did not object to the court’s communication with the jury being oral, but complained then and now that the communication coerced the jury to reach a verdict.
¶6It is his contention that the court’s statement that the jury would have to continue to deliberate until the court was “sure that there was no way in the world for you to reach a verdict . . . . ” followed by “It won’t be until tomorrow, I guarantee you, because I can’t do it under the law.” was a misstatement of the law and was coercive. He argues that although Article 35.23, Vernon’s Ann.C.C.P., requires that the jurors be kept together and not allowed to separate after retiring to deliberate, the statute also permits a separation with “permission of the court and the consent of each party.”
¶7It is not clear from the record just what the trial court had in mind when he made the statement about not being able to discharge the jury until the next day. After appellant’s objection, the court stated:
“I don’t think it’s any question about it. You can have your objection, they are going to stay until tomorrow if they *578don’t reach a Verdict. In other words, at 5:00 o’clock, wouldn’t be but two hours.”
¶8The court may well have had in mind the provisions of Article 36.31, Vernon’s Ann.C.C.P., which in part authorizes a trial judge, upon his own motion, to discharge a jury when the jury has been kept together for such a time as to render agreement altogether improbable. The exercise of discretion under the statute is measured by the time the jury has been kept together considered in light of the nature of the case and the evidence. O’Brien v. State, 455 S.W.2d 283 (Tex.Cr.App.1970); Green v. State, 167 Tex.Cr.R. 330, 320 S.W.2d 139 (1958).
¶9If there is an abuse of discretion in discharging the jury without the consent of the accused, jeopardy will attach. O’Brien v. State, supra; Grigsby v. State, 158 Tex.Cr.R. 484, 257 S.W.2d 110 (Tex.Cr.App.1953).
¶10It may well have been to avoid any abuse of discretion that the court made the statement feeling that the time the jury would have to deliberate by the close of the normal working day would not have been sufficient time in light of the nature of the case and the evidence.
¶11Further, it is noted that appellant’s counsel never indicated to the court that consent would be given if the court decided to allow the jury to separate.
¶12I cannot conclude under the circumstances that the court’s statement was a misstatement of the law and that the entire communication when taken as a whole, although no model for other courts to follow, was coercive.
¶13Further, the record does not reflect how long after the court’s remarks the jury deliberated before returning a verdict, although it was returned that same day. When the verdict was returned, there was no request that the jury be polled. The motion for new trial simply alleging “the verdict is contrary to the law and evidence” was overruled by operation of law. Thus, no evidence was produced to support appellant’s contention.
¶14For the reasons stated, I concur in the result reached by the majority, but disagree with the statement that Article 36.27, supra, contemplates an objection. Nothing in the clearly worded statute, repeatedly using the word “shall,” mentions an objection. Again and again we have urged judges to follow the statute as written by the Legislature. We have found by judicial interpretation that the error in failing to follow the statute may not be reversible error where no objection is interposed, but this is a far cry from saying that the statute itself contemplates an objection.
¶15I concur in the affirmance.