Opinion
02-20-00056-CR
06-17-2021
Dale W. Heide, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1489199D
Before Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
Wade Birdwell Justice
Appellant Dale W. Heide challenges his conviction for continuous sexual abuse of a child (CSA) on two grounds: (1) he alleges that the CSA statute is facially unconstitutional because, he claims, it violates his constitutional right to a unanimous jury verdict and (2) he contends that the trial court's Allen charge had a coercive effect on the jury. Neither argument is persuasive; we have rejected Heide's constitutional challenge on multiple occasions, and we find no evidence of actual coercion in the record. Therefore, we affirm.
The Allen charge is named for the 1896 United States Supreme Court case approving its use. See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157 (1896).
I. Background
Heide was indicted for CSA based on a series of acts of sexual abuse he was alleged to have committed over a four-year period. Only two procedural events from Heide's prosecution need be detailed for purposes of this appeal: Heide's motion to quash and the jury's deliberations.
Heide was also charged with one count of aggravated sexual assault of a child and three counts of indecency with a child. The jury was instructed to consider these four counts if it found Heide not guilty of CSA.
A. Motion to Quash
Before trial, Heide filed a motion to quash his indictment. He argued, among other things, that the CSA statute violates two provisions of the Texas Constitution-the jury-unanimity provision (Article V, Section 13) and the Due Course of Law Clause (Article I, Section 19)-because the statute "permits a jury to convict a defendant without unanimous agreement that the defendant committed any discrete culpable act." See Tex. Const. art. I, § 19, art. V, § 13. The trial court denied Heide's motion, and the case proceeded to a jury trial.
Heide also argued that his indictment provided inadequate notice because it "fail[ed] to set forth how Heide is alleged to have committed aggravated sexual assault of a child or indecency with a child[] and fail[ed] to give a date range for the requisite 30 days."
Heide pleaded not guilty to CSA.
B. Jury Deliberations
Following a two-day trial, the jury began deliberating at 2:48 p.m. on March 4. Within five minutes the jury sent a note asking to review trial exhibits and, by 4:30 p.m., sent two additional notes requesting to have testimony read back and seeking a legal clarification. Then at 5:15 p.m., the jury indicated that "[t]he majority have agreed on something, but we do not believe that we will all agree on the same verdict" and asked about the consequences of this disagreement. The trial court responded that "the law d[id] not allow [the court] to answer [the jury's] question at th[at] time" and instructed the jury to "continue [its] deliberations."
The jury was selected on March 2, and the trial began at 9:50 a.m. on March 3.
The jury did not indicate that it disagreed on a specific portion of testimony; consequently, the trial court responded that "the law d[id] not permit a general rereading of the testimony of any witness or witnesses."
But just twenty minutes later-and less than three hours into its deliberations-the jury concluded that further discussion was a fruitless endeavor, and it sent a note to that effect: "We cannot come to a unanimous decision, and further deliberations will not change that." The trial court sent the jury home for the day, and around 8:00 a.m. the following morning, the court issued the following supplemental jury instruction-commonly referred to as an Allen charge:
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.
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.
The jury continued to deliberate for another four hours after receiving this instruction. During that time, the jury sent a note indicating its disagreement regarding two specific portions of trial testimony, and a relevant excerpt of testimony was read back to the jury in open court. Then, just past 12:00 p.m., the jury returned a unanimous verdict; it found Heide guilty of CSA. Heide requested that the jury be polled, and each juror confirmed his or her agreement with the verdict. See Tex. Code Crim. Proc. Ann. art. 37.05(a).
Although the jury indicated its disagreement regarding two separate portions of trial testimony, the reporter's record indicates that only one portion was read back. The reason for this discrepancy is unclear.
The trial court entered judgment in accordance with the verdict, and after hearing punishment evidence, the court assessed Heide's punishment at 25 years' confinement.
II. Discussion
Heide raises two points on appeal: (1) whether the CSA statute is facially unconstitutional, and his indictment thus should have been quashed; and (2) whether the Allen charge had an actual coercive effect on the jury.
A. Jury Unanimity
Heide first argues that the trial court erred by failing to quash his indictment for what he claims is an unconstitutionally defined offense: continuous sexual abuse. See Tex. Penal Code Ann. § 21.02. Specifically, because the continuous-sexual-abuse statute does not require the jury to agree as to the particular instances of sexual misconduct committed over the relevant period of abuse, id. § 21.02(d), Heide reasons that this statute, on its face, violates his right to a unanimous jury verdict under the Due Process Clause of the Fourteenth Amendment, and Article V, Section 13 of the Texas Constitution.
The continuous-sexual-abuse statute expressly provides that "members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant" but "must agree unanimously that the defendant . . . committed two or more acts of sexual abuse" during the relevant time period. Tex. Penal Code Ann. § 21.02(d).
In a single sentence in his brief, Heide alleges that Section 21.02 also "violates the . . . Texas Code of Criminal Procedure." But Heide does not specify which article or articles of the Code of Criminal Procedure he intends to rely upon on appeal. And even if he had, Heide's trial-court motion challenged Section 21.02 only on state constitutional grounds-not as a violation of the Code of Criminal Procedure. Heide thus failed to preserve this issue for review. See Tex. R. App. P. 33.1(a), 38.1(i).
1. Standard of Review
We review a trial court's denial of a motion to quash de novo. State v. Rosseau, 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013); see Garcia v. State, No. 02-15-00315-CR, 2016 WL 4474346, at *2 (Tex. App.-Fort Worth Aug. 25, 2016, pet. ref'd) (mem. op., not designated for publication).
2. Preservation
First, Heide has not preserved his due-process argument for review. See Tex. R. App. P. 33.1(a). "A facial challenge to the constitutionality of a statute is a forfeitable right, that is, it may be lost by the 'failure to insist upon it by objection, request, motion, or some other behavior.'" Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex. App.-Fort Worth 2012, pet. ref'd) (op. on reh'g) (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)); see Smith v. State, 463 S.W.3d 890, 896-97 (Tex. Crim. App. 2015) (explaining that a facial challenge to a currently valid statute is forfeitable). Heide's motion to quash challenged the facial constitutionality of Section 21.02 as violative of the Texas Constitution-not the United States Constitution. His argument on appeal thus does not comport with the argument he preserved at trial. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ("To preserve error for appellate review, . . . [t]he point of error on appeal must comport with the objection made at trial.").
Heide's briefing relies exclusively on his motion to quash for preservation of his jury-unanimity argument. Although Heide reurged his motion to quash during the charge conference, he did not expand his objection to include a federal constitutional challenge. Cf. Taylor v. State, No. 02-16-00299-CR, 2017 WL 5894923, at *4 (Tex. App.-Fort Worth Nov. 30, 2017, pet. ref'd) (mem. op., not designated for publication) (addressing jury-unanimity issue preserved by objection to charge). Similarly, in Heide's motion for new trial he argued that the continuous-sexual-abuse statute is "unconstitutional as it authorizes a non[-]unanimous verdict, does not give the Defendant fair notice of what he is accused[, ] and otherwise violates due process of law." Cf. Gillenwaters v. State, 205 S.W.3d 534, 538 (Tex. Crim. App. 2006) (holding appellant's motion for new trial preserved as-applied constitutionality challenge). The record contains no indication that Heide intended for this ambiguous reference to due process to assert a jury-unanimity challenge under the United States Constitution, nor does the record indicate that the trial court understood it as such. Cf. Tex. R. App. P. 33.1(a)(1)(A).
3. Precedent
But regardless, even if Heide had preserved his challenge to Section 21.02 under both the United States and Texas Constitutions, Heide nonetheless admits, as he must, that this court has repeatedly rejected his argument. See, e.g., Harris v. State, No. 02-17-00278-CR, 2018 WL 3153605, at *2 (Tex. App.-Fort Worth June 28, 2018, pet. ref'd) (mem. op., not designated for publication) (holding Section 21.02 does not violate the Due Process Clause); Roberts v. State, No. 02-18-00146-CR, 2018 WL 3059997, at *5 (Tex. App.-Fort Worth June 21, 2018, pet. ref'd) (mem. op., not designated for publication) (holding Section 21.02 does not violate Article V, Section 13); Heslip, 2017 WL 2178878, at *1-2 (same); Ingram, 503 S.W.3d at 747-48 (same); Garcia, 2016 WL 4474346, at *2 (holding "[S]ection 21.02 does not violate the state constitutional right to jury unanimity"); Machado, 2016 WL 3962731, at *3-4 (holding Section 21.02 does not violate the Texas Constitution or United States Constitution); Pollock v. State, 405 S.W.3d 396, 404-05 (Tex. App.-Fort Worth 2013, no pet.) (holding Section 21.02 does not violate Article V, Section 13).
Indeed, we have been presented with nearly identical briefing of the jury-unanimity issue on at least four prior occasions, and each time we have rejected the defendant's argument and followed existing precedent. See Heslip v. State, No. 02-16-00375-CR, 2017 WL 2178878, at *1-2 (Tex. App.-Fort Worth May 18, 2017, pet. ref'd) (mem. op., not designated for publication); Ingram v. State, 503 S.W.3d 745, 747- 48 (Tex. App.-Fort Worth 2016, pet. ref'd); Garcia, 2016 WL 4474346, at *1-2; Machado v. State, No. 02-15-00365-CR, 2016 WL 3962731 (Tex. App.-Fort Worth July 21, 2016, pet. ref'd) (mem. op., not designated for publication).
Our sister courts have held similarly. See, e.g., Navarro v. State, 535 S.W.3d 162, 165-66 (Tex. App.-Waco 2017, pet. ref'd) (holding Section 21.02 does not violate Article V, Section 13); Fulmer v. State, 401 S.W.3d 305, 312-13 (Tex. App.-San Antonio 2013, pet. ref'd) (holding Section 21.02 does not violate Article V, Section 13 or Article I, Section 19 of the Texas Constitution, or the federal Due Process Clause); McMillian v. State, 388 S.W.3d 866, 871-73 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (holding Section 21.02 does not violate Article V, Section 13); Render v. State, 316 S.W.3d 846, 855-58 (Tex. App.-Dallas 2010, pet. ref'd) (holding Section 21.02 does not violate Article V, Section 13 or Article I, Section 19 of the Texas Constitution, or the federal Due Process Clause); Jacobsen v. State, 325 S.W.3d 733, 736-39 (Tex. App.-Austin 2010, no pet.) (holding Section 21.02 does not violate Article V, Section 13 or the federal Due Process Clause).
We decline Heide's implicit invitation to reconsider our established precedent; Section 21.02 is not facially unconstitutional. See U.S. Const. amend. XIV, § 1; Tex. Const. art. V, § 13. We overrule Heide's first point.
B. Allen Charge
Heide next argues that the trial court abused its discretion by issuing an allegedly coercive Allen charge in violation of his Sixth Amendment right to a fair and impartial jury. See U.S. Const. amend. VI. Specifically, Heide contends that, after receiving the Allen charge, the jury did not "consider any additional evidence" or deliberate "relatively a substantial length of time before returning with its guilty verdict"-two actions that Heide claims demonstrate the charge had an actual coercive effect on the jury.
Regardless, because Heide fails to distinguish between his state and federal constitutional challenges to the Allen charge and because he relies heavily on federal constitutional principles and case law, we limit our review of the Allen-charge issue to Heide's challenge under the Sixth Amendment. See McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex. Crim. App. 1986) ("Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious."); see also Heitman v. State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991) (quoting McCambridge). In his harm analysis, Heide summarily claims-in a single sentence and accompanying citation-that the allegedly coercive Allen charge inflicted constitutional harm because it violated his right to a fair and impartial jury under the Sixth Amendment of the United States Constitution and Article V, Section 10 of the Texas Constitution. While state courts have at times cited Article V for the right to a fair and impartial jury, cf. Barnett v. State, 161 S.W.3d 128, 135 (Tex. App.-Fort Worth 2005), aff'd, 189 S.W.3d 272 (Tex. Crim. App. 2006), the Court of Criminal Appeals has recognized that Texas's Sixth Amendment counterpart is found in Article I, Section 10. See Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998); compare Tex. Const. art. I, § 10, with Tex. Const. art. V, § 10.
1. Standard of Review
We review all alleged jury-charge error-including alleged Allen-charge error- under a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); see Thetford v. State, No. 02-18-00488-CR, 2021 WL 278913, at *12 (Tex. App.-Fort Worth Jan. 28, 2021, pet. filed) (mem. op., not designated for publication); Kirk v. State, 421 S.W.3d 772, 784 (Tex. App.-Fort Worth 2014, pet. ref'd). First, we determine whether the challenged Allen charge was erroneous. Kirsch, 357 S.W.3d at 649. Then, if it was, we analyze the error for harm, and we determine the degree of harm required for reversal based on whether the error was preserved. Id. But "if error did not occur, our analysis ends" at step one. Kirk, 421 S.W.3d at 784.
Because we review "all alleged jury-charge error . . . regardless of preservation in the trial court," Kirsch, 357 S.W.3d at 649, and because we ultimately hold that the jury charge was not erroneous, we need not detail Heide's objection to the Allen charge. We express no opinion as to whether Heide preserved his challenge to the Allen charge.
2. Allen-Charge Law
An Allen charge is a supplemental jury instruction that "reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve." Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); Thetford, 2021 WL 278913, at *13. The United States Supreme Court and the Texas Court of Criminal Appeals have both approved the use of Allen charges and have recognized that they advance "[t]he very object of the jury system[:] . . . to secure unanimity by a comparison of views, and by arguments among the jurors themselves." Allen, 164 U.S. at 501, 17 S.Ct. at 157; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996) (quoting Allen), overruled in part on other grounds by Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014), and modified in part on other grounds by Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003). But trial courts must be careful to word and administer Allen charges in a noncoercive manner. Barnett, 189 S.W.3d at 277 n.13; Thetford, 2021 WL 278913, at *13. An Allen charge is coercive if it pressures jurors into reaching a particular verdict or improperly conveys the trial court's opinion on the merits of the case. Thetford, 2021 WL 278913, at *13; West v. State, 121 S.W.3d 95, 107-08 (Tex. App.-Fort Worth 2003, pet. ref'd). Such a charge may be considered coercive on its face or it may have a coercive effect "in its context and under all the circumstances." Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546, 550 (1988) (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060 (1965) (per curiam)); see Barnett, 189 S.W.3d at 277 n.13; Calicult v. State, 503 S.W.2d 574, 576 (Tex. Crim. App. 1974).
Here, Heide does not argue that the language of the Allen charge was coercive on its face; rather, he claims that the Allen charge had a coercive effect. For Heide to prevail on this argument, he has the burden to identify evidence in the record that affirmatively demonstrates that actual jury coercion occurred in fact. See Calicult, 503 S.W.2d at 576; Thetford, 2021 WL 278913, at *14.
Indeed, the language of the Allen charge used in this case is nearly identical to that approved in Minze v. State. No. 02-15-00352-CR, 2016 WL 4474352, at *4-5 (Tex. App.-Fort Worth Aug. 25, 2016, no pet.) (mem. op., not designated for publication).
To determine whether the circumstances surrounding an Allen charge demonstrate that actual jury coercion occurred in fact, we consider factors such as: (1) the nature of the case; (2) the length of deliberations prior to the Allen charge; (3) whether the jury was required to endure "marathon deliberations"; (4) the number of Allen charges given; (5) the trial court's knowledge of or inquiry into the jury's numerical division; (6) whether the trial court singled out or pressured the minority jurors; (7) whether the Allen charge cautioned the jurors not to violate their consciences; (8) the length of deliberations following the Allen charge; (9) the jury's notes and requests to review evidence after the Allen charge; and (10) whether the jurors each affirmed the verdict upon polling. See Thetford, 2021 WL 278913, at *14 (considering these ten factors, among others, and gathering relevant case law).
As we noted in Thetford, "Allen charges are reviewed based on the totality of the circumstances; the list of factors enunciated above is not an exhaustive list of relevant considerations in this or any other case." Thetford, 2021 WL 278913, at *14 n.30.
3. Heide's Inaccurate, Unsupported Argument
Heide relies on two circumstantial factors as alleged evidence of actual coercion: (1) the jury's failure to "consider any additional evidence" after receiving the Allen charge, and (2) the "relatively quick[]" duration of the jury's post-Allen deliberations. But Heide's reliance on these two factors is misplaced.
First, Heide's contention that the jury failed to "consider any additional evidence" is simply incorrect. The record reveals that, after receiving the Allen charge, the jury indicated its desire to review two portions of trial testimony, and a relevant excerpt was read back to the jury. Because a jury's request to review trial testimony after receiving an Allen charge has been recognized as an indication that the charge did not have a coercive effect, see, e.g., Miller v. State, No. 05-01-00510-CR, 2002 WL 1752168, at *4 (Tex. App.-Dallas July 30, 2002, pet. ref'd) (not designated for publication), Heide's emphasis on this factor undercuts his argument.
The State pointed out this error in its brief, but Heide failed to file a reply.
Heide's challenge to the Allen charge is identical to that raised in Thetford. Both Heide's brief and Thetford's brief contained the following paragraph-verbatim:
See Thetford, 2021 WL 278913, at *17. We considered nearly identical challenges in Minze and Aguilar as well. See Aguilar v. State, No. 02-18-00175-CR, 2018 WL 4140741, at *3 (Tex. App.-Fort Worth Aug. 30, 2018, pet. ref'd) (mem. op., not designated for publication); Minze, 2016 WL 4474352, at *4. Given such similarities, one might suspect that Heide's counsel recycled his argument from Thetford, Minze, and Aguilar but forgot to remove the inapplicable allegation regarding the jury's consideration of additional evidence. See also supra note 11.Here, the jury returned relatively quickly with a guilty verdict without the need to consider any additional evidence. C.f. [United States v.] Moore, 429 F.2d [1305, ] 1307 [(9th Cir. 1970)]. The jury's deliberations were not relatively a substantial length of time before returning with its guilty verdict. C.f. [United States v.] Robinson, 560 F.2d [507, ] 517-18 [(2d Cir. 1977) (op. on reh'g)] (jury deliberated over four additional hours after Allen charge); [United States v.] DeStefano, 476 F.2d [324, ] 337 [(7th Cir. 1973)] (jury deliberated at least four more hours after Allen charge); [United States v.] Pope, 415 F.2d 685, 690-91 [(8th Cir. 1969)] (jury deliberated an additional four hours after Allen charge).
Heide's reliance on the jury's four-hour post-Allen deliberation period-which Heide characterizes as "relatively quick[]"-is similarly misguided. We have held that much shorter post-Allen deliberation periods were sufficiently long to avoid raising a suspicion of coercion. See, e.g., Aguilar, 2018 WL 4140741, at *3-4 (rejecting substantially similar argument where post-Allen deliberations lasted "slightly over an hour"); Minze, 2016 WL 4474352, at *4-5 (rejecting substantially similar argument where post-Allen deliberations lasted fifteen to twenty minutes). In fact, even the case law Heide cites as purported support for his argument instead rebuts it. See United States v. Bonam, 772 F.2d 1449, 1451 (9th Cir. 1985) (per curiam); Robinson, 560 F.2d at 517-18; De Stefano, 476 F.2d at 336-37; Moore, 429 F.2d at 1306-07; Pope, 415 F.2d at 690-91. Bonam, Robinson, De Stefano, Moore, and Pope all held that post-Allen deliberation periods ranging from one and a half hours to more than four hours- periods shorter than or roughly equivalent to the post-Allen deliberation period in this case-were sufficiently long to indicate an absence of coercion. See Bonam, 772 F.2d at 1451 (holding one-and-a-half-hour post-Allen deliberation period "was not an immediate post-charge guilty verdict nor was the verdict rendered in such a short period of time as to raise a suspicion of coercion"); Robinson, 560 F.2d at 517-18 (concluding that "the fact that the jury deliberated for three hours between the Allen-type charges and for more than four hours after the second such charge before reaching its verdict [we]re strong indications that the effect of the charge was minimal"); De Stefano, 476 F.2d at 337 (holding that four-hour post-Allen deliberations indicated that "instead of [the charge] having the coercive effect of the majority running roughshod over the minority, the supplemental charge caused the jury to take additional time to deliberate"); Moore, 429 F.2d at 1307 (noting that "[t]he jury did not reach a verdict immediately after receiving the instruction" was indicative of the absence of coercion); Pope, 415 F.2d at 690-91 (holding almost four hours of post-Allen deliberations indicated absence of coercion). We thus fail to see how these dated federal cases support Heide's position or his characterization of the jury's post-Allen deliberations as "relatively quick[]."
As noted supra in note 17, we have considered a strikingly similar argument based on the same set of dated federal cases in at least three prior appeals: Thetford, Aguilar, and Minze. Thetford, 2021 WL 278913, at *12-18; Aguilar, 2018 WL 4140741, at *2-3; Minze, 2016 WL 4474352, at *3-5. In all three cases, we distinguished the federal case law and held that the totality of the circumstances did not demonstrate actual jury coercion. Thetford, 2021 WL 278913, at *18; Aguilar, 2018 WL 4140741, at *2-4; Minze, 2016 WL 4474352, at *4-5. And in Thetford-which involved a five-and-a-half-hour postAllen deliberation period-we noted, as we do here, that much of the federal case law the appellant cited actually undermined the appellant's argument. Thetford, 2021 WL 278913, at *17 (noting Thetford's counterproductive reliance on Robinson, De Stefano, and Pope).
Furthermore, the Allen-charge analysis is based on the totality of the circumstances, and Heide has addressed only two factors-the jury's alleged failure to review additional evidence and the duration of the jury's post-Allen deliberations- without situating these factors "in [their] context and under all the circumstances." Lowenfield, 484 U.S. at 237, 108 S.Ct. at 550; Barnett, 189 S.W.3d at 276, 277 n.13. Because the two factors Heide relies upon do not even raise a suspicion of coercion, and because Heide does not address any other considerations relevant to the Allen-charge analysis, he has failed to demonstrate actual jury coercion. See Minze, 2016 WL 4474352, at *5 (rejecting similar two-factor argument and holding that "Appellant ha[d] not shown under all the circumstances that those two facts indicate[d] coercion" (emphasis added)); see also Mason v. State, Nos. 07-19-00066-CR, 07-19-00067-CR, 2020 WL 4355522, at *8 (Tex. App.-Amarillo July 29, 2020, no pet.) (mem. op., not designated for publication) (citing Minze and holding that, "[w]hile 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").
4. No Evidence of Actual Coercion
Regardless, after reviewing the record, we find no merit in Heide's coercion complaint; instead, the context and circumstances of the Allen charge indicate an absence of coercion.
First, the gravity of Heide's offense supported extended jury deliberations. Heide stood charged with continuous sexual abuse of a child-an extremely serious accusation and a first-degree felony. See Tex. Penal Code Ann. § 21.02(h). The jury thus bore a weighty responsibility in determining Heide's guilt.
If convicted, Heide's offense carried the possibility of lifetime registration as a sex offender and confinement for at least twenty-five years and up to ninety-nine years or life. See Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A), (6)(A), 62.101(a)(1); Tex. Penal Code Ann. § 21.02(h). Although the jury was not asked to assess Heide's punishment, this punishment range reflected the significance and potential ramifications of the jury's guilt determination.
Yet, the jury deliberated less than three hours before declaring itself deadlocked. See Turner v. State, No. 06-20-00050-CR, 2020 WL 6929980, at *6-7 (Tex. App.-Texarkana Nov. 25, 2020, pet. ref'd) (mem. op., not designated for publication) (holding trial court did not err by issuing Allen charge after approximately five and a half hours of deliberation in continuous-sexual-abuse case); cf. Howard, 941 S.W.2d at 122 (describing six-hour period of special-issue deliberations as a "seeming short period of 'deadlock'"). And after this declaration, the trial court sent the jury home for the night, "presumably where they could 'sleep on it'"; the court did not require the jury to endure "marathon deliberations." Thetford, 2021 WL 278913, at *15 (upholding Allen charge where jury was not required to endure "marathon deliberations" and was allowed to break for the day upon request to "sleep on it"); Hollie v. State, 967 S.W.2d 516, 523 (Tex. App.-Fort Worth 1998, pet. ref'd) (per curiam) (upholding Allen charge where jury deliberated four hours, declared deadlock, went home to "sleep on it," and returned a verdict within an hour of receiving the Allen charge the next morning).
The following morning, the trial court issued its one and only Allen charge. See Thetford, 2021 WL 278913, at *16 (upholding Allen charge and noting that there was only one); Roll v. State, No. 13-98-462-CR, 2000 WL 34251143, at *5 (Tex. App.- Corpus Christi-Edinburg Aug. 31, 2000, no pet.) (not designated for publication) (upholding Allen charge and noting that it "was given only once"). The record contains no indication that the trial court inquired into the jury's numerical division, or even that the trial court inadvertently learned the numerical division. See Thetford, 2021 WL 278913, at *17 (upholding Allen charge and noting that "[a]lthough Allen charges have been upheld even when the trial court had unsolicited knowledge of the numerical division or the identities of the minority jurors, the record does not reflect that the trial court here knew either"); cf. Hollie, 967 S.W.2d at 523-24 (upholding Allen charge where trial court inadvertently learned jury's numerical split). Nor does the record contain any evidence that the trial court singled out or pressured the minority jurors. Cf. Barnett, 161 S.W.3d at 134 (holding trial court coerced jury where court "singled out the two hold-out jurors[ and] informed them that it had a 'problem' with them").
In fact, the Allen charge given was an "innocuous," "watered down" form of the traditional Allen charge in that it omitted an often-used paragraph encouraging the minority to "keep in mind the impression the evidence has made on a majority of the jurors who are of equal honesty and intellect as the minority." Thetford, 2021 WL 278913, at *13 n.28 (reciting Allen-charge language with approval, including standard paragraph speaking to the minority); Minze, 2016 WL 4474352, at *5 (describing as "innocuous" Allen charge nearly identical to charge in this case); Hollie, 967 S.W.2d at 523 (noting that trial court's "watered down" Allen charge omitted the standard paragraph speaking to the minority); see Lowenfield, 484 U.S. at 237-38, 108 S.Ct. at 550-51 (noting that the purposes underlying Allen "apply with even greater force . . . where the charge given, in contrast to the so-called 'traditional Allen charge,' does not speak specifically to the minority jurors"); cf. Allen, 164 U.S. at 501-02, 17 S.Ct. at 157 (approving charge language with standard encouragement directed at minority). The watered-down charge also included cautionary language encouraging the jurors not to violate their consciences. See Thetford, 2021 WL 278913, at *16 (upholding Allen charge based in part on the charge's inclusion of language directing jurors not to do violence to their consciences); Aguilar, 2018 WL 4140741, at *4 (same).
Furthermore, as previously discussed, the jury deliberated for more than four hours after receiving the Allen charge-even longer than it had deliberated before declaring itself deadlocked. Had the minority jurors felt pressured or coerced to change their views, such jurors would have had no reason to spend hours discussing the case. See Minze, 2016 WL 4474352, at *5 (holding appellant failed to demonstrate actual coercion where jury deliberated fifteen to twenty minutes after receiving Allen charge); Mixon v. State, 481 S.W.3d 318, 327 (Tex. App.-Amarillo 2015, pet. ref'd) (concluding that post-Allen deliberations for "one hour and seventeen minutes . . . suggest[ed] that the jury did continue deliberations rather than come to a decision following a simple acquiescence by the minority jurors"); cf. Golden v. State, 232 S.W. 813, 814 (Tex. Crim. App. 1921) (holding Allen charge coerced jury where jury deliberated forty-two hours then delivered verdict five minutes after receiving Allen charge). And the jury even requested to have additional testimony read back for review-"conduct [that] rationally indicated ongoing deliberation." Howard, 941 S.W.2d at 122 (holding trial court did not err by denying mistrial after deadlock note in light of other jury notes indicating "deliberative progress"); Calicult, 503 S.W.2d at 576 n.2 (holding that the record did not demonstrate actual coercion where the only evidence of the instruction's effect was a post-Allen jury note that indicated "the jury was properly pursuing its deliberative function"); Miller, 2002 WL 1752168, at *4 (noting that jury's post-Allen request to review testimony indicated continued deliberations). Again, had the Allen charge coerced the minority jurors to vote against their consciences, the jury would have had no reason to continue discussing and reviewing the evidence.
In fact, there is no indication that the testimony the jury requested to have read back was the only evidence the jury considered in its postAllen deliberations. We assume that the jury actively deliberated absent evidence to the contrary, and Heide has not identified any evidence to the contrary. See Minze, 2016 WL 4474352, at *5 (noting that "[e]ven though the jury did not request to review any evidence, nothing in the record indicate[d] that the jury did not deliberate" after receiving the Allen charge).
Finally, after the jury returned its unanimous verdict, each juror individually confirmed agreement with the verdict in Heide's requested jury poll-"a final, post-verdict confirmation of the absence of coercion." Thetford, 2021 WL 278913, at *18 (upholding Allen charge based in part on jury polling).
Thus, the record contains no evidence that actual jury coercion occurred in fact; rather, the circumstances surrounding the charge indicate an absence of coercion. Consequently, the trial court did not abuse its discretion by issuing the challenged Allen charge. Because the trial court did not err, our inquiry ends. See Kirk, 421 S.W.3d at 784. We overrule Heide's second point.
III. Conclusion
Having overruled both of Heide's points, we affirm the trial court's judgment.