Opinion
No. 07-19-00066-CR No. 07-19-00067-CR
07-29-2020
RYAN JAMES MASON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 223rd District Court Gray County, Texas
Trial Court Nos. 10479 & 10488; Honorable Phil N. Vanderpool, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In these companion cases, Appellant, Ryan James Mason, pleaded "guilty" to the offense of murder, as alleged in the indictment in court cause number 10479 (appellate cause number 07-19-00066-CR), and "not guilty" as to the offense of burglary of a habitation, as alleged in the indictment in cause number 10488 (appellate cause number 07-19-00067-CR). A jury found him guilty of both offenses. Both offenses were enhanced by two prior felony convictions. Appellant then pleaded "true" to the enhancements alleged and the jury sentenced him to confinement for life for murder and fifty years for burglary of a habitation. The sentences were ordered to run concurrently.
TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019). An offense under this section is a first degree felony. Id. at § 19.02(c). Originally, Appellant plead "not guilty," however, after being called to the stand in his own defense, after giving some testimony, he changed his plea to "guilty."
TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2019) (where the indictment alleged that, without the effective consent of the owner, Appellant entered a habitation with the intent to commit theft). An offense under this section is a second degree felony. Id. at § 30.02(c)(2).
TEX. PENAL CODE ANN. § 12.42(d) (West 2019). As enhanced, each offense was punishable by imprisonment for life, or for any term of not more than 99 years or less than 25 years. An offense "punished as" a higher offense raises the level of punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).
Appellant presents three issues challenging his burglary conviction. By his first and second issues, he maintains the trial court abused its discretion in (1) denying his motion for mistrial in a case involving neither complex facts nor conflicting testimony when, after nearly three hours of deliberation and four jury votes, it was apparent the jury was hopelessly deadlocked and (2) in giving the jury an Allen charge encouraging further deliberation after the jury had already deliberated for over eight hours in a case involving neither complex facts nor conflicting testimony. By his third issue, Appellant contends the evidence is insufficient to support his conviction for burglary of a habitation because it fails to demonstrate he entered the habitation without the effective consent of the owner and with the intent to commit theft. We will affirm the judgment in the murder case (trial court cause number 10479), modify the judgment in the burglary of a habitation case (trial court cause number 10488) to reflect the correct statute for the offense, and affirm that judgment as modified.
Although a Notice of Appeal was filed with respect to cause number 10479 (appellate cause number 07-19-00066-CR), Appellant does not challenge the jury's verdict or the trial court's judgment in that cause. Accordingly, the judgment in cause number 10479, pertaining to the offense of murder, will be affirmed.
An Allen charge, sometimes referred to as a "dynamite" charge, is a supplemental charge from the trial court urging the jury to reach a verdict after it has indicated that it is deadlocked. It is named after the case of Allen v. U.S., 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
BACKGROUND
In June 2016, Ashley Rabel travelled to the home of Margaret Mason, Appellant's mother, in Pampa, Texas. Rabel's grandmother was concerned about Margaret because she had been unable to "get ahold of" her. When Rabel entered Margaret's home, she knew something was wrong because "all of [Margaret's] belongings were in boxes and baskets and stuff." Rabel could not find Margaret but she did see "a large puddle of blood in the floor, and blood on the ceiling and the TV stand and walls" of the home. Rabel left the home and called 911.
Lieutenant Tobie Bias of the Pampa Police Department responded to the scene. When he went into the house, he noticed it appeared as though someone was "in the middle of a move" since items were packed. In the living room, Lieutenant Bias saw "quite a bit of blood on the floor in a pool." He also stated that "[i]nside that blood there was some -- what appeared to be fragments of a skull, or some other form of bone. I noticed that the TV sat high on top of the stand not typically where you see a TV. It was pretty heavily damaged, and there was blood spatter on it and on the wall behind it and above it." Lieutenant Bias testified the damage appeared to be what might be expected "from a shotgun." During the search of the home, the body of a female was found in a storage tote. The forensic pathologist testified the cause of death was a "shotgun wound to the head."
Margaret's next-door neighbor, Marcus Dwayne Hall, testified he knew Margaret and her son, Appellant. Hall said he allowed Appellant to stay in his shop behind his house sometimes because Appellant and his mother "didn't get along." Hall allowed the police to search his shop and during that search, police found a shotgun and two spent shotgun shell casings. Testing later showed that each of the shells found had been fired from that shotgun.
Mindy Morrison had known Appellant for three days when she agreed to go with him to his mother's house to discuss the possibility of buying a Jeep from her and to help Appellant pack his mother's belongings in preparation for a move. On the way there, Appellant joked about killing his mother, but Morrison did not believe he was serious. When they arrived at the home, the two entered the home through the back door. It appeared to Morrison that Appellant and his mother were painting because she saw paint cans and rollers. She also saw "boxes and stuff where he had been packing stuff, and it looked like they were getting ready to move, some things were out." Morrison began to help pack the kitchen because she saw Margaret had "a lot of stuff" and she "needed some help getting things packed up, because she was elderly." Sometime later, Appellant told Morrison he was not kidding about killing his mother and told her to go see. When Morrison looked, she saw a body in the living room, covered up, and "laying in the floor." When she asked Appellant why he killed his mother, he said "she was really mean to him, and that she didn't deserve to live, and that he hated her." Morrison stayed in the house while Appellant moved the body. Appellant later took Morrison home. She did not see him again until the day she testified.
Appellant was arrested the next day. During his incarceration, he made a number of statements to police regarding his mother's murder. Audio and video recordings, as well as a transcript of those statements, were admitted into evidence at trial. After the State had rested its case, Appellant took the witness stand to voluntarily testify on his own behalf. He testified that in the days prior to his mother's murder, he had stayed at her home and in Hall's shop. He testified that during that time he worked on some tattoos and was also working on a shotgun. On the day of his mother's murder, his mother invited him to come to her home to eat. When he went there, he brought his shotgun with him to add "some finishing touches" to the paint with some Sharpie markers. After a short time on the stand, Appellant hesitated, then stated he wanted to change his plea to the charge of murder from "not guilty" to "guilty." Discussions were held at the bench. After determining that his change in plea was made freely and voluntarily, the trial court accepted Appellant's guilty plea to the charge of murder and he stepped down from the witness stand and did not testify any further.
After both parties rested and closed, the trial court presented a separate charge for each offense. As to the murder charge, the trial court instructed the jury to return a verdict of guilty in accordance with Appellant's plea. The jury began its deliberations on the burglary of a habitation charge at approximately 11:49 a.m. At noon, the jury submitted an inquiry asking about "intent" and Appellant's "legal residence" at the time of the offense. The court advised the jury that the instructions were before it and it was to continue its deliberations without further instructions from the court. Almost three hours later, the jury submitted another note, telling the court they were "stuck at 11 to 1 and that they had voted 4 times." This time, Appellant's trial counsel objected and asked the trial court to consider it a hung jury. He also requested that the trial court declare a mistrial. The trial judge told the parties he was not ready to give to the jury an Allen charge and, over Appellant's objection, advised the jury to continue its deliberations. About an hour later, the jury requested the transcript of the testimony of Morrison and Appellant and also requested the opening statement of defense counsel. The court told the jury the attorney's opening statement was not evidence. It further advised the jury that in order to have the court reporter read back the testimony of a witness, the jury needed to certify it was in dispute as to the statement of a particular witness and to request only that portion of the witness's testimony that was in dispute.
At 7:58 p.m., the court and parties discussed providing to the jury an Allen charge. Defense counsel again objected, stating "all that does is tell the people who are holding out, whether that be one or ten, that they need to agree with the other people." The court overruled Appellant's objection and then provided to the jury the following oral instruction:
If this jury finds itself unable to arrive at a unanimous verdict it will be necessary for the Court to declare a mistrial. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time.
Any such future jury will be impaneled in the same way this jury has been impaneled, and will likely hear the same evidence, which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you, and there's no reason to hope that the next jury will find these questions any easier to decide than you have found it.
With this additional instruction you are requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without violence to your conscience. Don't do violence to your conscious, but please continue deliberating.
With these new instructions, the jury started deliberations again at 8:03 p.m. Fifty-four minutes later, the jury reached a guilty verdict.
ISSUE THREE—SUFFICIENCY OF THE EVIDENCE TO SUPPORT APPELLANT'S CONVICTION FOR BURGLARY OF A HABITATION
Because Appellant's third issue would afford him the greatest relief, for purposes of logical sequence, we will begin with a discussion of that issue. Issue three contends the evidence presented at trial was insufficient to support his conviction for burglary of a habitation because there was no evidence from which a rational trier of fact could have found he entered his mother's home with the intent to commit theft.
In reviewing a record for insufficiency of the evidence in a criminal case, the only standard a reviewing court should apply is whether the evidence was sufficient to support each element of a criminal offense the State was required to prove beyond a reasonable doubt, as set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). As such, we are instructed to consider all of the evidence in the light most favorable to the verdict and to determine whether, based on that evidence and reasonable inferences to be drawn therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). If a rational juror could have found every essential element to be established beyond a reasonable doubt, then the conviction should be sustained.
In conducting a sufficiency review, we give great deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id.
In our review, we compare the elements of the offense as defined by a hypothetically correct jury charge to the evidence actually introduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the fact finder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326.
On appeal, we serve to ensure the fact finder reached a rational verdict, and we may not re-evaluate the weight and credibility of the evidence produced at trial, nor may we substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The sufficiency standard is the same for both direct and circumstantial evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt. Id. Instead, a court considers only whether the inferences necessary to establish Appellant's guilt are reasonable based on the cumulative force of all the evidence when considered in the light most favorable to the verdict. Id.
In applying the requisite standard here, we must determine whether the State proved that Appellant, without the effective consent of the owner thereof, entered a habitation, with the intent to commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1). In our evaluation of the evidence, intent to commit theft need not be proven by direct evidence, as it may be inferred from the circumstantial evidence presented. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986), overruled in part on other grounds, Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). Furthermore, the theft need not be effectuated, nor the object of the theft taken, in order to support a conviction. See Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981). See also Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (stating that, when entry is made with the intent to commit theft, the offense is complete once unlawful entry is made).
We note that the indictment did not allege the alternative manner and means of committing the offense of burglary, to-wit: when, without the effective consent of the owner, a person enters a habitation and commits or attempts to commit theft. See TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2019).
Appellant argues the record contains no evidence of any intent on his part to commit theft when he entered his mother's home. He points to his interview with Ranger Jason Shea in which Appellant confirmed it "wasn't [his] intent to kill [his mother]." He said he went to her home because she had invited him over to eat. He stated that his plan when he entered her home was "[j]ust to have her dead." He told Ranger Shea he brought Morrison to his mother's house the next day because he needed her for "a sounding board." Appellant argues that none of this shows he entered his mother's home, without her consent, with the intent to commit theft.
The State argues the record is "replete" with evidence of Appellant's intent to commit theft when he entered his mother's home. In its appellate brief, the State points to the testimony of Morrison in which she stated she saw in the home "boxes and stuff where [Appellant] had been packing stuff, and it looked like they were getting ready to move, some things were out" and "there was boxes where they had been working on packing . . . ." She also said that during the three days she knew Appellant, he had been staying at her house while she worked nights. She told the jury that during that time, Appellant had been "leaving and coming back with little things . . . he said that they were cleaning—he was cleaning stuff out." The State also points to the testimony of Lieutenant Bias. Regarding when he entered the home, Lieutenant Bias stated, "[i]t just seemed like it was packed up, as if somebody was in the middle of a move or something like that." The State also notes Hall's testimony that the "first thing I noticed was that it looked like the house had been ransacked. Margaret kept a real clean house." The State contends that "[c]learly[,] there is enough evidence in the record for the jury to conclude that the Appellant entered the home and began boxing up the victim[']s possessions with the intent of moving them out of the house."
The jury heard Appellant's recorded statement to Ranger Shea, wherein he answered "[n]ot particularly" when asked whether he went to his mother's home with the intent to kill her or rob her. Appellant said of his mother's murder, "I mean, it's premeditated, and I stole a bunch of stuff out of her house, so it's going to be a—a crime . . . ." Appellant told Ranger Shea he "started thinking about it, like the next couple of days. It was, like, damn, there's a lot of shit in there that probably . . . ." Appellant also admitted to Ranger Shea that he had promised Morrison she could have the Jeep and other items from the house.
We agree with the State that the evidence presented amounts to more than a scintilla of evidence tending to show Appellant entered his mother's home with the intent to commit theft. The testimony of Lieutenant Bias, Hall, and Morrison, when considered in conjunction with Appellant's statements to Ranger Shea, provide sufficient evidence from which the jury could have rationally inferred Appellant entered his mother's home with the intention to steal items from within the residence. See Lewis v. State, 715 S.W.2d 655, 657 (Tex. crim. App. 1986) (in a prosecution for a burglary, the jury may infer the intent to commit theft from the circumstances). Viewing the evidence in the light most favorable to the verdict, we find the evidence was legally sufficient to support Appellant's conviction for burglary of a habitation. We overrule his third issue.
This is particularly true since the entry of the mother's home with the intent to commit theft did not have to coincide with his entry when the offense of murder was committed.
ISSUE ONE—DENIAL OF APPELLANT'S MOTION FOR MISTRIAL
Through his first issue, Appellant argues the trial court abused its discretion in denying his motion for mistrial. As grounds for that argument, he contends this case was not factually complex and did not involve conflicting testimony. Consequently, Appellant contends the trial court should have granted his motion for mistrial when the jury reported that it was deadlocked following three hours of deliberation.
We review a trial court's ruling on a motion for mistrial under an abuse of discretion standard, meaning we will uphold that ruling if it is within the "zone of reasonable disagreement." Katzenberger v. State, 439 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). A mistrial is an extreme remedy, to be sparingly used for a "narrow class of highly prejudicial and incurable errors" committed during the trial process. Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim. App. 2018); Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Washington v. State, No. 02-13-00050-CR, 2015 Tex. App. LEXIS 1419, at *29 (Tex. App—Fort Worth Feb. 12, 2015, no pet.) (mem. op., not designated for publication). It is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd, 3 S.W.3d at 567. Accordingly, a trial court would be required to grant a mistrial only in those instances where it is apparent from the record that an objectionable event has occurred which is so inflammatory that curative instructions would most likely be unsuccessful in preventing the jury from being unfairly prejudiced against the defendant. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996), overruled on other grounds, Ex parte Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App. 2007). Therefore, the denial of a motion for mistrial is reviewed according to an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Grotti v. State, 209 S.W.3d 747, 776 (Tex. App.—Fort Worth 2006), aff'd, 273 S.W.3d 273, 283-84 (Tex. Crim. App. 2008).
After a case is submitted to the jury, "the court may in its discretion discharge [the jury] where it has been kept together for such time as to render it altogether improbable that it can agree." Andrade v. State, 700 S.W.2d 585, 589 (Tex. Crim. App. 1985) (citing TEX. CODE CRIM. PROC. ANN. art. 36.31). However, there is no limit to the length of time that a jury may be held for deliberations. Andrade, 700 S.W.2d at 589; Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999). The length of time a jury may be held to deliberate rests largely within the discretion of the trial court, and unless it is made to appear that the court abused its discretion in that regard, no reversible error is shown. Andrade, 700 S.W.2d at 589. In the exercise of that discretion, the trial court must account for the nature of the case, the complexity of the legal issues, and the evidence to be considered. Katzenberger, 439 S.W.3d at 570 (citation omitted). Other factors that may be considered are "how long the jury was deadlocked and whether the margin of disagreement had changed during the course of deliberations." Id. (citation omitted). Accordingly, reversal is mandated only if the record reveals that the trial court abused its discretion by holding the jury for deliberations. Melancon v. State, 66 S.W.3d 375, 383 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Jackson v. State, 17 S.W.3d 664, 676 (Tex. Crim. App. 2000)).
Here, the guilt-innocence phase of trial lasted about twelve hours over the span of three days. Appellant notes that given his mid-trial withdrawal of his original plea of not guilty to the offense of murder, the jury was left only to decide his guilt with regard to the burglary of a habitation offense. Therefore, Appellant argues, the jury had little evidence to consider because the only relevant evidence as to that charge was the testimony of Appellant and Morrison. Appellant asserts that because their testimony was not in conflict, the jury did not have to weigh testimony containing varying or contradictory accounts of the events. As such, Appellant argues, this case was not sufficiently complex to warrant additional deliberation after the jury informed the trial court it was "stuck" after three hours of deliberation. The State disagrees, arguing Appellant's opinion that this is not a complex case is speculative, particularly considering the fact that Appellant's plea changed halfway through the trial, potentially confusing jurors, who are lay people untrained in the law and courtroom procedures. The State also points to the fact that the jury submitted several written questions to the trial court during deliberations—an indication that the jury may have been confused by the charge or by the conflicting testimony.
While the jury was not presented with numerous witnesses relaying difficult or highly technical information or presented with voluminous exhibits, the jury was presented with a very close legal question regarding whether the State presented sufficient evidence for it to believe, beyond a reasonable doubt, that Appellant entered his mother's home, without her consent, with the intent to commit theft. As noted, the jury began its deliberations at 11:49 a.m. At noon, the jury submitted an inquiry asking about intent and Appellant's legal residence at the time of the offense, questions that go to the very center of the elements of the offense with which Appellant was charged. The court advised the jury that the instructions were before it and it was to continue deliberations. Almost three hours later, the jury submitted another note, informing the court they were "stuck at 11 to 1 and that they had voted 4 times." At that point, trial counsel objected to further deliberations and asked the trial court to consider it a hung jury. He also requested a mistrial. While it did not explicitly overrule Appellant's motion for mistrial, the trial court did tell the parties it was not ready to give to the jury an Allen charge and advised the jury to simply continue its deliberations.
Absent direct testimony, it is often a challenging task to determine a person's intent at any given moment. This is so because, most often, all a juror has to rely on is circumstantial evidence. Even in a case such as this, where the accused testifies, evidence of intent can be unclear. Here, Appellant's testimony during the guilt-innocence phase did not provide a clear picture of his intent when he entered his mother's home. He readily admitted he committed the murder but did not do the same with regard to the offense of burglary. In that offense, the jury was left to determine from his cursory testimony what his intent was and when he formed it. Despite Appellant's characterization of the facts of this case as being simple, the determination of his intent was not an easy task. Given the difficulty of determining Appellant's intent when he entered his mother's home and considering the note from the jury indicating it was struggling with that very question, we cannot say the trial court abused its discretion in requiring the jury to continue deliberating beyond the three hours it had already deliberated when it sent its note to the trial court. At the time Appellant moved for a mistrial, the court had not given the jury an Allen charge; rather it had merely advised the jury to continue its deliberations. Furthermore, Appellant has not pointed us to a single case in which a conviction was reversed under circumstances similar to those before us. Therefore, under the facts of this case, we cannot find the trial court abused its discretion in denying Appellant's motion for mistrial. Accordingly, we overrule Appellant's first issue.
ISSUE TWO—PROPRIETY OF PROVIDING AN ALLEN CHARGE TO THE JURY
When a jury has declared itself deadlocked, the trial court may give a supplemental charge commonly known as an Allen charge. See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528 (1896). See also Mixon v. State, 481 S.W.3d 318, 325 (Tex. App.—Amarillo 2015, pet. ref'd) (approving the use of an Allen charge). An Allen charge typically reminds the jury that if it is not able to reach a verdict, a mistrial will result, the case will remain pending, and there is no guarantee that a second jury will find the issue any easier to resolve. Id. at 325 (citing Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006)). While such a charge is permissible in both the federal and state courts, a trial court must be very careful to phrase and administer such a supplemental charge in a noncoercive manner. Barnett, 189 S.W.3d at 277 n.13; Mixon, 481 S.W.3d at 326 (citations omitted). Generally speaking, "a supplemental charge which suggests that all jurors reevaluate their opinions in face of disparate viewpoints cannot be said to be coercive on its face." Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996) (en banc), overruled on other grounds, Easley v. State, 424 S.W.3d 535, 538 & n.23 (Tex. Crim. App. 2014) (Emphasis in original).
Via his third issue, Appellant asserts the trial court abused its discretion when, over his objection, it provided to the jury an oral Allen charge encouraging further deliberations after the jury had already deliberated for eight hours. The State argues the trial court did not abuse its discretion by giving the jury this additional instruction. Both parties agree the wording of the supplemental charge provided was "nearly identical" to other Allen charges that have been found to be proper and noncoercive. West v. State, 121 S.W.3d 95, 108 (Tex. App.—Fort Worth 2003, pet. ref'd).
From the record it is unclear as to what prompted the trial court to give the jury additional instructions.
As we noted above, the length of time a jury deliberates before being prompted by the court in such a manner is a matter that lies within the sound discretion of the trial court depending on the facts and circumstances of the particular case. TEX. CODE CRIM. PROC. ANN. art. 36.31 (West 2006); Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961, 112 S. Ct. 426, 116 L. Ed. 2d 446 (1991). Accordingly, an Allen charge will constitute reversible error if, on its face, it is so improper as to amount to a coercive attempt to force the minority position to accede to the majority position. Rosales v. State, 548 S.W.3d 796, 804 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).
The primary inquiry in determining the propriety of an Allen or "dynamite" charge is its coercive effect on juror deliberations, "in its context and under all the circumstances." Mixon, 481 S.W.3d at 326 (citing Lowenfield, 484 U.S. at 237, 108 S. Ct. at 550 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059, 1060, 13 L. Ed. 2d 957 (1965)). An Allen charge is less likely to be considered coercive when (1) the time lapse between the charge and the jury's decision is not unduly short, (2) the trial court did not give the charge prematurely, and (3) the jurors were not "required to deliberate for an unreasonable length of time" before the charge was given. United States v. Eghobor, 812 F.3d 352, 359 (5th Cir. 2015).
Because, as the parties agree, the instruction given was not coercive on its face, Appellant bears the burden of showing coercion actually occurred. Rosales, 548 S.W.3d at 805 (citing Freeman v. State, 115 S.W.3d 183, 187 (Tex. App.—Texarkana 2003, pet. ref'd)). In an effort to satisfy that burden, Appellant points to the fact that after the jury informed the court it was "stuck" at eleven to one after three hours of deliberation, the court advised the jury to continue its deliberations, which it did for an additional five hours before the court gave the additional Allen instructions. Thus, Appellant contends it was after eight hours of deliberation that the trial court issued the Allen charge, that it did so over his objection, and that it did so to coerce the one juror to agree with the other eleven. Appellant also argues that because the issues were not complex and the jury was not required to sift through difficult testimony, the supplemental instruction operated as an implicit message to the one juror to change his or her position. Appellant further contends there was no reason for the jury to deliberate beyond the eight hours it had already deliberated and the fact that it took a "mere 54 minutes" after the supplemental instruction for the jury to return a guilty verdict sufficiently establishes coercion.
We disagree. While the jury returned a verdict in just under an hour without requesting additional evidence, these facts do not mandate a finding that the Allen charge was unduly coercive. In Minze v. State, No. 02-15-00352-CR, 2016 Tex. App. LEXIS 9388 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (mem. op., not designated for publication), the appellate court held that while the jury reached its verdict only fifteen to twenty minutes after it was given the Allen charge and did not view any additional evidence, the appellant failed to show coerciveness under all the circumstances. While the jury here deliberated for a longer period of time before the Allen charge was given than the jury did in Minze, we cannot say that fact alone is sufficient to establish the instruction as being coercive under all of the circumstances in the case. Accordingly, we simply cannot find the trial court abused its discretion under the circumstances of this case. Issue two is overruled.
REFORMATION OF JUDGMENT
In reviewing the record for burglary of a habitation, it has come to the attention of this court that the trial court's judgment reflects a clerical error. The summary portion of the judgment under "Statute for Offense" reflects that Appellant was convicted under "§ 19.02(c)" of the Texas Penal Code. However, the correct section is 30.02(a).
This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The power to reform a judgment is "not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. at 529-30. Thus, we modify the trial court's judgment in trial court cause number 10488 to reflect the "Statute for Offense" as "§ 30.02(a)" in the summary portion of the judgment.
CONCLUSION
We affirm the trial court's judgment in cause number 10479, convicting Appellant of the offense of murder, and we affirm, as modified, the trial court's judgment in cause number 10488, convicting Appellant of the offense of burglary of a habitation.
Patrick A. Pirtle
Justice Do not publish.