No. 2-06-268-CR.
Delivered: June 21, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
On Appeal from the 396th District Court of Tarrant County.
PANEL A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
ANNE GARDNER, Justice.
Appellant Jasquin L. Ball appeals from his conviction on two counts of aggravated kidnaping. In a single point, he argues that the trial court erred by submitting an Allen charge to the jury during deliberations on guilt-innocence. We affirm.
Background
Because Appellant's point relates only to the trial court's Allen charge, we need not dwell on the evidence adduced at trial. The record shows that Appellant kidnaped two minors whom he suspected of burglarizing his apartment, cut the female minor's hair, forced them to do yard work and fight with one another, threatened them with a gun, fired the gun in their direction, and ultimately released them. After deliberating on guilt-innocence for one and a quarter hours, the jury sent the following note to the trial court: "Judge — We Are Stalemated at this Time. What Happens If We Cannot Reach a 100% Agreement?" The trial court responded with the following instruction: You are instructed that in a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard to the opinion of the other jurors.
You should listen, with a disposition to being convinced, to the arguments of the other jurors. If a large number of jurors are for deciding the case one way, those in the minority should consider whether they are basing their opinion on speculation or guesswork, and not on the evidence in the case.
If this 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 empaneled in the same way this jury has been empaneled 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 information, you are instructed 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. You will now retire and continue your deliberations.
Appellant's counsel objected to the instruction as follows: It is the Defense's position that we are in objection to the submission of the Allen charge to the jury. That, one, it's a comment on the weight of the evidence, that it's an improper invasion of the jury's domain in deciding the facts of the case. It violates the Fifth and Fourteenth Amendment[s] of the United States Constitution, that it also violates the Texas Constitution.
It encourages minority jurors to change their vote, and we believe it informs — it encourages the jury to take in and factor outside considerations such as what will happen if they don't reach an agreement, which we think [are] improper grounds for them to be basing their decisions on at this time.
The trial court overruled Appellant's objections. The jury returned a verdict of guilty about an hour later. Discussion
In his sole point, Appellant argues that the trial court's Allen charge was coercive and "constitutionally infirm" for three reasons: (1) It was not warranted because the jury did not say it was deadlocked; (2) the Allen charge was not responsive to the jury's question, "What happens if we cannot reach a 100% agreement?"; and (3) the Allen charge was an improper comment on the weight of the evidence and the State's burden of proof. An Allen charge is given to instruct a deadlocked jury to continue deliberating. See Allen, 164 U.S. at 501, 17 S. Ct. at 157. The use of such a charge under these circumstances has been approved by the court of criminal appeals. Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App. 1996), cert. denied, 535 U.S. 1065 (2002). An Allen charge will constitute reversible error only if, on its face, it is so improper as to render jury misconduct likely or jury misconduct is demonstrated to have occurred in fact. Calicult v. State, 503 S.W.2d 574, 576 n. 2 (Tex.Crim.App. 1974). To prevail on a complaint that an Allen charge is coercive, an accused must show that jury coercion or misconduct likely occurred or occurred in fact. Love v. State, 909 S.W.2d 930, 936 (Tex.App.-El Paso 1995, pet. ref'd). An Allen charge is unduly coercive and therefore improper only if it pressures jurors into reaching a particular verdict or improperly conveys the court's opinion of the case. Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973). The primary inquiry is the coercive effect of such a charge on juror deliberation in its context and under all circumstances. Howard, 941 S.W.2d at 123. Before turning to the merits of Appellant's complaints, we must consider the State's contention that his objection to the Allen charge failed to preserve his complaints on appeal. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). To preserve error on a complaint for appeal, the objection at trial must comport with the complaint on appeal. TEX. R. APP. P. 33.1; Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App. 1990). Of the three complaints Appellant advances on appeal, only one comports with his trial court objection that the Allen charge was an improper comment on the weight of the evidence. Appellant did not object that the Allen charge was premature because the jury was not yet deadlocked; that it was unresponsive to the jury's question, "What happens if we cannot reach a 100% agreement?"; or that it was an improper comment on the State's burden of proof. Therefore, we hold that Appellant has forfeited these complaints, and we will consider only his complaint that the Allen charge was an improper comment on the weight of the evidence. Appellant contends that the following language from the Allen charge was an improper comment on the weight of the evidence and rendered the charge coercive: "You are instructed that in a large proportion of cases absolute certainty cannot be expected." Article 36.14 of the code of criminal procedure prohibits a trial judge from delivering a charge that expresses any opinion as to the weight of the evidence. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). The primary reason for the rule is that an instruction by the trial judge to the jury on the weight of the evidence reduces the State's burden of proving guilt beyond a reasonable doubt. Brown v. State, 122 S.W.3d 794, 798 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938 (2004). As recognized in Lagrone v. State, "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved." 84 Tex. Crim. 609, 615-16, 209 S.W. 411, 415 (1919). Therefore, trial judges must refrain from making any remark calculated to convey to the jury their opinion of the evidence in a particular case. TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). Appellant contends the words, "You are instructed that in a large proportion of cases absolute certainty cannot be expected," expressed to the jury the trial judge's opinion that a guilty verdict was appropriate. We disagree. The trial court's instruction was not a comment on the evidence of this particular case; rather, it was a generic comment about criminal cases generally. And the trial court carefully concluded the Allen charge by instructing the jury that, in any event, it should try to arrive at a verdict acceptable to all jurors only if it could do so "without doing violence to your conscience." See West v. State, 121 S.W.3d 95, 109 (Tex.App.-Fort Worth 2003, pet. ref'd). Moreover, we have held that Allen charges identical to the charge in this case were not coercive. See id.; Franks v. State, 90 S.W.3d 771, 800-01 (Tex.App.-Fort Worth 2002, no pet.). In support of his argument, Appellant cites Hollie v. State, 967 S.W.2d 516, 521 (Tex.App.-Fort Worth 1998, pet. ref'd); Howard, 941 S.W.2d at 124; Barnett v. State, 161 S.W.3d 128, 134 (Tex.App.-Fort Worth 2005), aff'd, 189 S.W.3d 272 (Tex.Crim.App. 2006); and Arrevalo, 489 S.W.2d at 571-72. Those cases are inapposite. In Hollie, we held that an Allen charge was not a comment on the weight of the evidence under circumstances factually dissimilar to those here; thus, Hollie has at most marginal significance to the question now before us. See Hollie, 967 S.W.2d at 521-23. Likewise, in Arrevalo, the court of criminal appeals examined a dissimilar Allen charge and held that it was not a comment on the weight of the evidence. See Arrevalo, 489 S.W.2d at 571 (holding instruction that jury had all of the evidence it needed to reach a verdict was not a comment on the weight of the evidence). Howard examined an Allen charge to determine if it was coercive, but whether the charge was an improper comment on the weight of the evidence was not an issue. See Howard, 941 S.W.2d at 124-25. In Barnett, we held that the trial court coerced the jury when it extensively polled the deadlocked jury, told the two holdout jurors that it "had a problem" with them, and asked them whether they could change their votes if sent back to deliberate further. Barnett, 161 S.W.3d at 134. But as in Howard, whether the trial court's statements were an impermissible comment on the weight of the evidence was not an issue. See id. Moreover, the Allen charges in these four cases did not contain the language of which Appellant complains nor anything similar. We hold that the Allen charge was not a comment on the weight of the evidence. We overrule Appellant's sole point, and we affirm the trial court's judgment.