In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00159-CR ______________________________
JOSHUA ANTEZ FREEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 29,347-B
Before Morriss, C.J., Carter and Cornelius,* JJ. Opinion by Justice Cornelius
_________________________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O N
Joshua Antez Freeman was convicted, in a jury trial, of burglary of a habitation. The jury assessed his punishment, enhanced by a prior conviction, at forty years' imprisonment. In his sole issue on appeal, Freeman contends the trial court erred in instructing the jury to retire to deliberate as to his punishment after the court had accepted the jury's verdict as to his codefendant's punishment. Freeman argues that the combined effect of an Allen (1) charge the court gave to the jury and the court's acceptance of the verdict on punishment against his codefendant coerced the jury into reaching the verdict as to his punishment. We overrule this contention and affirm the judgment.
At approximately 10:00 a.m. on March 6, 2002, Mary Aguilar left her home to go to a neighbor's home for coffee. At approximately 11:50, another neighbor saw a man who was carrying a bag leave Aguilar's house. The neighbor saw another man "pop" his head out of a window from inside Aguilar's house. The neighbor called police, who apprehended two suspects in the area. The neighbor identified the two men as those he had previously seen at Aguilar's house. John Thomas Allen, the codefendant, and Freeman, the appellant, were charged with burglary of a habitation and tried jointly before a jury. The jury returned a verdict of guilty against both Allen and Freeman. After several hours of deliberation on the day of trial and the following morning, the jury informed the trial court that it was deadlocked concerning punishment as to both defendants. The trial court gave the jury an Allen charge, also known as a "dynamite" charge, and sent it back for further deliberations. The jury later informed the court it had reached a decision concerning Allen's punishment, but was still deadlocked as to Freeman's punishment. The trial court sent the jury back for further deliberations. Over Freeman's objection and motion for mistrial, the trial court then accepted the verdict concerning Allen and sentenced him according to the punishment assessed by the jury, which was eighteen years' imprisonment. The jury later returned a verdict assessing Freeman's punishment at forty years' imprisonment.
Freeman contends that sending the jury back for further deliberations after accepting the verdict against Allen, combined with the Allen charge, coerced the jury in reaching a verdict as to Freeman's punishment. Freeman does not raise the issue of whether the Allen charge is coercive of itself. (2)
Freeman contends that the trial court abused its discretion in denying his motion for mistrial. He argues that the combined allegedly coercive nature of the Allen charge and the court's acceptance of separate verdicts required a mistrial.
The trial court may declare a mistrial when an error occurs that is so prejudicial that the expenditure of further time and expense would be wasteful. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). The trial court may properly declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction would have to be reversed on appeal because of error. Id. The denial of a motion for mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Therefore, we must determine whether the trial court's returning the jury to deliberate prevented an impartial verdict from being reached in the context of the Allen charge and the acceptance of the verdict against Allen.
Both the United States Supreme Court and the Texas Court of Criminal Appeals have accepted the use of a supplemental Allen charge. Allen v. United States, 164 U.S. 492 (1896); Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996). The trial court gave the following version of an Allen charge to the jury:
Members of the jury, I have your note that you are deadlocked. In the interest of justice, if you can reach a verdict, you should do so. I do not mean to say an individual juror should yield his or her own conscience and positive conviction. But I do mean that when you are in the jury room, you should discuss this matter carefully, listen to each other, and try, if you can, to reach a verdict. It is your duty as a juror to keep your mind open and free to every reasonable argument that may be presented by your fellow jurors so that this jury may arrive at a verdict that justly answers the consciences of the individuals making up this jury. You should not have any pride of opinion and should avoid hastily forming or expressing an opinion. At the same time, you should not surrender any conscientious views founded on the evidence unless convinced of your error by your fellow jurors. If you fail to reach a verdict, this case may have to be tried before another jury. Then all our time will have been wasted. Accordingly, I ask you to continue your deliberations.
Similarly worded jury charges have been held not coercive in civil cases. See Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 225 (Tex. 1978); Golden v. First Nat'l Bank, 751 S.W.2d 639, 641 (Tex. App.-Dallas 1988, no writ). However, some circumstances may result in a coercive and improper Allen charge. (3) "The primary inquiry to determine the propriety of an Allen . . . charge is its coercive effect on juror deliberation, 'in its context and under all circumstances.'" Howard v. State, 941 S.W.2d at 123 (citing Jenkins v. United States, 380 U.S. 445, 446 (1965)). While an Allen charge that specifically addresses a minority of the jurors "might engender coercion," a charge that speaks to the jury as a whole is not coercive on its face. Id. at 123-24. The charge in question here addresses the jury as a whole and does not single out any specific juror or jurors. The charge simply encourages the jury to reach a verdict and asks the jurors to re-examine their views. The trial court may properly encourage jurors to re-examine their own views and, while not surrendering honest convictions, to change their opinions if convinced from the evidence that they are erroneous. Jones v. State, 986 S.W.2d 358, 362 (Tex. App.-Beaumont 1999, pet. ref'd). An instruction that a mistrial would have to be declared is not, of itself, coercive. Stanton v. State, 535 S.W.2d 182, 183 (Tex. Crim. App. 1976). We conclude that the charge here is not coercive on its face.
Freeman contends that returning the jury to deliberate after it had reached a verdict against his codefendant was inherently coercive. He fails to cite any caselaw or other authority for this argument. (4) Returning the jury to deliberate after accepting a verdict against a codefendant simply focuses the deliberations on the remaining defendant. We do not believe that such individual attention harms the remaining defendant in any way. A supplemental charge to the jury to continue its deliberations, without any additional language, is not coercive. Muniz v. State, 573 S.W.2d 792, 794 (Tex. Crim. App. 1978). Consequently, returning the jury to further deliberate was not inherently coercive. The only question remaining is whether the trial court's action resulted in coercion in fact.
If an Allen charge is not coercive on its face, an appellant has the burden to show that jury misconduct occurred in fact. Bledsoe v. State, 21 S.W.3d 615, 623 (Tex. App.-Tyler 2000, no pet.); Love v. State, 909 S.W.2d 930, 936 (Tex. App.-El Paso 1995, pet. ref'd); Davis v. State, 709 S.W.2d 288, 291 (Tex. App.-Corpus Christi 1986, pet. ref'd). We believe this standard is appropriate in this case. Because neither the Allen charge, nor the acceptance of a separate verdict against the codefendant, is inherently likely to result in misconduct, Freeman has the burden to prove that coercion actually occurred. He has presented no evidence of coercion caused by the combined effect of the Allen charge and acceptance of a verdict against the codefendant. Freeman simply speculates that the combined effect of the two actions created coercion. In the absence of any evidence of coercion, we cannot conclude that the trial court abused its discretion in denying the motion for mistrial.
For the reasons stated, we affirm the judgment.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted: April 2, 2003
Date Decided: August 15, 2003
Publish
1. Allen v. United States, 164 U.S. 492, 501-02 (1896).
2. While Freeman's attorney objected to the Allen charge that the trial court originally intended to give the jury, he did not object to the Allen charge that was eventually given to the jury. Failure to object or otherwise draw the court's attention to the alleged coercive nature of the particular Allen charge given waived any error. Tex. R. App. P. 33.1(a)(1); see Bledsoe v. State, 21 S.W.3d 615 (Tex. App.-Tyler 2000, no pet.).
3. See Wayne F. Foster, Annotation, Instructions Urging Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen Charge)-Modern Cases, 97 A.L.R.3d 96 (1980).
4. Failure to cite authority for an argument may justify dismissal under the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1(h).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00095-CV
______________________________
IN RE:
COYT RANDAL JOHNSTON
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Coyt Randal Johnston has filed a petition asking this Court to issue a writ of mandamus to prevent an ordered pre-suit deposition. We have stayed the ordered deposition pending our decision in this proceeding.
Judge Carlos Cortez filed a petition in Dallas County[1] pursuant to Rule 202 of the Texas Rules of Civil Procedure in which he sought an order to take Johnstons pre-suit deposition. Tex. R. Civ. P. 202. The underlying facts show that Cortez, a Dallas district judge, is considering filing a defamation suit against Johnston, a Dallas attorney, based on allegedly defamatory statements[2] made by Johnston about Cortez to the media and to a number of attorneys and judges in Dallas in late October 2009.
Cortez sought to take only Johnstons deposition and named and served only Johnston in connection with his request. Cortez bases his anticipated lawsuit on e-mail correspondence sent by Johnston; Cortezs counsel stated at the hearing that a suit can be brought against Mr. Johnston. At the hearing, Cortezs counsel testified that five other sitting judges or justices in Dallas were mentioned in [Johnstons] e-mails. Counsel further stated that those five judges may be the sources [of the information uttered by Johnston], or there may be other judges who are the sources of this information.
Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 83940 (Tex. 1992) (orig. proceeding); In re Pilgrims Pride Corp., 187 S.W.3d 197, 198 (Tex. App.Texarkana 2006, orig. proceeding). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 24142 (Tex. 1985).
A trial court has no discretion in determining what the law is or applying the law to the facts. In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008); Huie v. DeShazo, 922 S.W.2d 920, 92728 (Tex. 1996); Walker, 827 S.W.2d at 840. Consequently, a trial courts erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Huie, 922 S.W.2d at 92728.
Rule 202 of the Texas Rules of Civil Procedure permits a person to petition a trial court for an order authorizing a deposition before suit is filed. Tex. R. Civ. P. 202.1. The deposition may be taken to perpetuate testimony for use in an anticipated suit or to investigate a potential claim or suit. Id. A deposition may be ordered only if the trial court finds that allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit or, where the deposition is to investigate a potential claim, that the likely benefit outweighs the burden or expense of the procedure. Tex. R. Civ. P. 202.4(a).
Appeal is not an adequate remedy from such an order. In re Christopher Allan, M.D., 191 S.W.3d 483 (Tex. App.Tyler 2006, orig. proceeding), mand. granted, 249 S.W.3d 416 (Tex. 2008). The ruling is interlocutory if discovery is sought from a person against whom there is a suit pending or against whom a suit is specifically contemplated. IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex. App.Dallas 2005, no pet.); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.Waco 2005, orig. proceeding). Here, Cortez has identified Johnston as an anticipated defendant in a defamation action, and against others not so named in his petition. Because the order is interlocutory and not immediately appealable, this is a type of situation in which mandamus relief could be available, if the trial court abused its discretion.
The question, then, is whether mandamus relief is available on these facts under the application of this rule. We deny the petition because (1) the trial court was within its discretion in impliedly finding that Cortez did not identify any named judges as anticipated defendants; and (2) the trial court was within its discretion in finding that the deposition is necessary to avoid a failure or delay of justice and that the depositions benefits outweigh its burdens.
(1) The Trial Court Was Within Its Discretion in Impliedly Finding that Cortez Did Not Identify any Named Judges as Anticipated Defendants
Johnston contends that, because Cortez did not serve notice on the five individual judges named at the hearing, the petition for deposition must be denied. Cortez argues that the rule requires service only on the individual sought to be deposed, relying on Rule 202.2(g) of the Texas Rules of Civil Procedure. In making this argument, Cortez disregards Rules 202.3(a) and 202.2(f)(1). Building on the foundation of Rule 202.2(f)(1), Rule 202.3(a) requires service not just on the witness, but also, if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioners in the anticipated suit.
Johnston contends that, in mentioning the five judges at the hearing, Cortez identified them as potential defendants and, thus, should have been required to serve them with notice of the hearing to support a valid deposition order. We disagree.
A few judges were specifically identified by Cortez at the hearing as having been mentioned by Johnston in connection with his report or allegations against Cortez. At the hearing, Cortezs counsel testified in context about those judges:
I know that a suit can be brought against Mr. Johnston. What I dont know is who these judges are who purportedly made these remarks to him because there would be pretty obvious liability on their part. And it is not my practice and should not be the practice of any lawyer to sue people that should not properly be a litigant or defendant.
There are at least five judges mentioned in [Johnstons] e-mails, . . . including [five specifically named here,] who may be the sources, or there may be other judges who are the sources of this information.
I have tried to obtain information as to who those judges were, and I have been unable to do so. And without filing a 202 petition, I cannot obtain the information about those judges, and I do not want to file a lawsuit that would name these judges or identify or sue these judges or any of them without having obviously [sic] evidence to support my allegation.
The foregoing testimony never accuses any of the judges of being a source of defamatory material. It simply says that they were mentioned in Johnstons e-mails and speculates that they may or may not have been Johnstons sources. While the trial court might have been within its discretion had it found that the five judges were thus identified as persons [Cortez] expects to have interests adverse to [Cortezs] in the anticipated suit against Johnston, such is not the case here. It was certainly well within the trial courts discretion to have found that they were not so identified. See Tex. R. Civ. P. 202.2(f)(2).
Therefore, we conclude that Cortezs failure to serve notice of the hearing on the five mentioned judges does not support Johnstons requested mandamus relief.[3]
(2) The Trial Court Was Within Its Discretion in Finding that the Deposition Is Necessary to Avoid a Failure or Delay of Justice and that the Depositions Benefits Outweigh Its Burdens
The remaining arguments revolve around the application of Rule 202.4 of the Texas Rules of Civil Procedure. The rule states that the court
must order a deposition to be taken if, but only if, it finds that:
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
In the order entered in this case, the trial court made the following findings:
The Court finds that allowing Petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; the likely benefit of allowing the Petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
This language thus addresses both of the alternative justifications for such discovery that are specified by Rule 202.4(a).
As Johnston correctly notes, the petition claimed only that the deposition was to obtain testimony in an anticipated suit and that to justify a presuit deposition under that state of affairs, the record must show that granting such would prevent a failure or delay of justice. He argues that no evidence supports such a finding. We disagree.[4]
One significant factor bears on the potential for a failure or delay of justice in this case. The statute of limitations on a defamation lawsuit against Johnston and others may very well run near the end of October 2010. Yet, it would appear that Cortez has been aware of Johnstons utterances since shortly after they were made and has not actively pursued the available relief to resolution until less than two months before the expiration of the statute of limitations. Any emergency in that respect appears to be of his own making. Further, given his knowledge as to Johnston, if Cortez believes he has a viable lawsuit against Johnston, he could file it today, thus obviating any concern over failure or delay of justice as to Johnston.
Other potential parties, beyond Johnston, pose a more sticky question and are the sole supporting reason provided by Cortez to support his need for a deposition. Cortez claims that he does not know their identities and seeks to determine such at the deposition. This factor would cut in favor of allowing the deposition to prevent a failure or delay of justice in the anticipated suit.
The second justification for application of the pre-suit deposition rulein investigating unknown potential partiesis whether the benefit of ordering the deposition outweighs the burden or expense of the procedure. The trial court is in a better position than this Court to perform this balancing test. Plus, public policy favors discovery of information. See Garcia v. Peeples, 734 S.W.2d 343, 34647 (Tex. 1987); Am. Honda Motor Co. v. Dibrell, 736 S.W.2d 257 (Tex. App.Austin 1987, orig. proceeding).
Relator argues that Cortez should not be able to seek relief under this subsection because it was not pled and then that Cortez has failed to establish that the benefit of allowing the requested depositions outweighs the burden or expense of the procedure as required by Rule 202. See In re Hewlett Packard, 212 S.W.3d 356, 359 (Tex. App.Austin 2006, orig. proceeding).
Counsel for Johnston specifically pointed out at the hearing that the only basis articulated by Cortez for the deposition was the anticipated suit portion of the rule. In response, Cortezs counsel acknowledged the applicability also of the second part of the ruleinvestigating unknown potential partiesand suggested that the burden would be light, as he was asking for only a single, hour-long deposition. It was within the trial courts discretion to find that the benefits described above outweighed the burden of one, hour-long deposition.
Under this state of the evidence on the arguments raised, we cannot conclude that the trial court acted outside the parameters of its authority, or without reference to the guiding principles of the rule at issue. Accordingly, we find no abuse of discretion.
We deny the petition for writ of mandamus and lift our stay of the deposition.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 7, 2010
Date Decided: October 8, 2010
[1]Originally filed in the Fifth Court of Appeals, this original proceeding was transferred to this Court by the Texas Supreme Court because all justices on the Fifth Court of Appeals recused. We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Johnstons statements related to a complaint he had earlier made to the State Judicial Conduct Commission concerning Cortez. We have no information regarding whether the Commission has made any disposition of Johnstons complaint.
[3]In passing, we note an apparent defect in the underlying procedure, but which also does not support issuance of a writ of mandamus here. Rule 202.2(f)(2) requiresif suit is anticipated, but there are unknown potential defendantsthat petitioner state that the names cannot be ascertained through diligent inquiry. Of course, here there were unknown potential parties Cortez seeks to identify through the deposition. Rule 202.3(b) provides that such [u]nnamed persons who would be expected to have interests adverse to petitioners in the anticipated suit are to be served by publication by describing them in lieu of naming them. Those requirements were not met here, but such deficiency was not argued to the trial court as a reason to deny the deposition and is not argued to this Court as being a defect supporting the requested relief here. Rule 33.1 of the Texas Rules of Appellate Procedure requires that a party must first present its complaint to the trial court and obtain a ruling on that complaint in order to preserve the issue on appeal. This requirement applies to mandamus proceedings. West v. Solito, 563 S.W.2d 240, 24445 (Tex. 1978) (orig. proceeding); In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936 (Tex. App.Tyler 2005, orig. proceeding). As one court recognized in the mandamus context, it would be hard to conclude, without circumstances that were highly unusual or that made a trial courts ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court. In re Bank of Am., No. 01-02-00867-CV, 2003 WL 22310800, at *2 (Tex. App.Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op., not designated for publication).
Several courts of appeals have applied Rule 33.1 or its predecessor in original proceedings. See In re Polymerica, LLC, 271 S.W.3d 442, 448 (Tex. App.El Paso 2008, orig. proceeding); In re Senior Living Props., L.L.C., 63 S.W.3d 594, 598 (Tex. App.Tyler 2002, orig. proceeding); In re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex. App.Amarillo 2000, orig. proceeding); Dallas Fire Ins. Co. v. Davis, 893 S.W.2d 288, 293 (Tex. App.Fort Worth 1995, orig. proceeding); Susman Godfrey, L.L.P. v. Marshall, 832 S.W.2d 105, 109 (Tex. App.Dallas 1992, orig. proceeding). Whether Rule 33.1 applies directly or only by analogy is not the critical question: the point is that a party seeking the extraordinary writ generally must have apprised the trial court of the arguments on which the party later bases its mandamus petition. See Bank of Am., 2003 WL 22310800, at *2.
[4]There is no suggestion or proof in this case that could support this ruling based on a claim of any potential loss or destruction of evidence.