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reasoning that the court could issue an Allen charge after the jury requested information and had been deliberating for nearly as long as the presentation of evidence in the case
Summary of this case from Olvera v. StateOpinion
No. 05-10-01558-CR
01-25-2012
VICTOR JEWELL BLACK, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued January 25, 2012
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F09-62734-Y
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Francis
A jury convicted Victor Jewell Black of aggravated assault with a deadly weapon for stabbing his girlfriend with a knife, causing serious bodily injury. Punishment was assessed at sixty years in prison. In one issue, appellant contends the trial court abused its discretion by issuing an Allen charge when the jury had not indicated it was deadlocked. We affirm.
While deliberating the verdict in this case, the jury sent out three notes. The first note requested the 911 tape, medical records, photographs, and arrest report. The second note inquired whether or not the jury was required to find both the use of a deadly weapon and serious bodily injury. The third note asked for a definition of "bodily injury" and also asked for the penalty range. The trial court responded to the questions. After the jury had been deliberating for nearly as long as the presentation of evidence in the case, the trial court stated on the record that "[t]he jury has indicated to the bailiff that they are not at an impasse yet, but based on the questions, I don't believe that to be the case. I think they are, and I intend to Allen Charge them." The defense objected that such a charge "puts undue pressure on the jury" and "takes it out of their hands, changes their free will and thinking and decision-making." Further, the defense asserted appellant was prejudiced by the charge and the charge was unfair.
The trial court then instructed the jury as follows:
[TRIAL COURT]: Members of the jury, I have the following additional instruction for you.
(As read:) If the jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. 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 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 is no reason to hope the next jury will find these questions any easier to decide than you have found them.
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 doing violence to your conscience. Don't do violence to your conscience, but continue to deliberate.
Thereafter, the jury rendered its verdict of guilty on the charge of aggravated assault with a deadly weapon causing serious bodily injury.
In his sole issue, appellant contends the trial court abused its discretion in issuing the Allen charge. He argues the jury was not deadlocked so the charge was unnecessary and had a coercive effect.
Before turning to the merits of appellant's complaint, we first consider the State's argument that appellant did not make this specific objection at trial (that the charge was premature because the jury was not deadlocked). After reviewing appellant's objections, we agree. Because appellant did not object to the premature nature of the charge, we conclude he has forfeited his complaint on appeal. See Tex. R. App. P. 33.1. But even if the complaint was preserved, there is no error.
An Allen charge informs a deadlocked jury of the consequences if they do not reach a verdict. See Allen v. United States, 164 U.S. 492, 501-02 (1896). At least one Texas court has held a trial court does not err by giving an Allen charge, even before a jury has unequivocally stated it is deadlocked. In that case, the jury had deliberated almost five hours and had not indicated it was in disagreement or deadlocked in reaching a verdict. Loving v. State, 947 S.W.2d 615, 620 (Tex. App.-Austin 1997, no pet.). When the jury requested certain testimony be read by the court reporter, the trial court complied with the request, and then, on its own initiative, submitted an Allen charge.
At trial and on appeal, the defendant objected the charge was "premature and coercive." The court of appeals cited several cases from other jurisdictions for the propositions that (1) an Allen charge is less coercive if submitted before a jury comes to an impasse in reaching a verdict and expressing a preference for the trial court to give the charge before a jury deadlocks and (2) giving an Allen charge does not require a finding that the jury is deadlocked. Loving, 947 S.W.2d at 619. The court of appeals then concluded the trial court did not err in giving the charge before the jury communicated it was deadlocked. Id. at 620.
Likewise, we conclude the trial court did not abuse its discretion in giving an Allen charge before the jury suggested it was deadlocked. We note the record shows the jury had been deliberating for nearly as long as it took to present all the evidence in the case (almost four hours) and had sent out several notes. Although the jury had indicated to the bailiff there was no impasse, the trial court could have in its discretion believed such a charge was necessary given the notes and the length of the deliberations. Further, the substance of the instruction is not coercive in nature; rather, the court told jurors that if they were unable to reach a unanimous verdict, a mistrial would be declared and a new jury impaneled. We overrule the sole issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101558F.U05