In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-05-00111-CR
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WENDELL MCCOY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 04-0305X
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Wendell McCoy and his best friend, Patrick Lister, were together and drinking heavily. After an encounter with police at a local bar, McCoy was angry and talked of driving by and "shooting up" the police station. Lister's efforts to talk McCoy out of the retaliation resulted in McCoy's shooting Lister once in the lower abdomen and maybe another time in the buttocks. For the shooting, a Harrison County jury convicted McCoy of aggravated assault and assessed punishment at fifteen years' imprisonment. The trial court sentenced McCoy accordingly. In a sole point of error, McCoy asserts the sentence is disproportionate. We affirm the judgment.
Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). But a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana 1999, no pet.); see also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, pet. ref'd).
Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref'd) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664–65 (Tex. App.—Texarkana 1995, pet. ref'd).
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court and that the trial court either ruled or refused to rule on that complaint. Tex. R. App. P. 33.1(a). The complaint must be sufficiently specific to make the trial court aware of the grounds of the complaint. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999).
At no time did McCoy object to the trial court concerning the sentence imposed on him. There was no motion for new trial. He has not preserved for our review the alleged disproportionality of his sentence.
Even if McCoy had preserved this issue for our review, and assuming we were to find that McCoy's sentence was grossly disproportionate to his crime, the record does not contain any evidence comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed similar offenses. Delacruz v. State, 167 S.W.3d 904, 906 (Tex. App.—Texarkana 2005, no pet.); Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.—Texarkana 2003, no pet.). Therefore, even if preserved, no error has been shown.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 28, 2005
Date Decided: December 7, 2005
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s. Taylor maintained that no such private conversation took place between T.G. and Henry, and wanted the opportunity to rebut her testimony by offering the testimony of Henry, who had been sitting in the courtroom throughout the trial. The trial court excluded the rebuttal testimony because the Rule was invoked at the beginning of trial and the State objected to the testimony.
Disqualification of a defense witness for such witness' violation of the Rule must be viewed in light of the defendant's constitutional right to call witnesses on his or her behalf. Davis v. State, 872 S.W.2d 743, 745 (Tex. Crim. App. 1994). Generally, a defense witness should not be excluded solely for violation of the Rule. Lopez v. State, 960 S.W.2d 948, 953 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). The trial court's decision to exclude a witness' testimony is reviewed under the abuse of discretion standard. See id. A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id. The test for determining if a court properly exercised its discretion in excluding testimony in this context is: 1) whether the "particular and extraordinary circumstances" show the defendant or his or her counsel consented, procured, connived, or had knowledge of a witness or potential witness who is in violation of the sequestration rule, and 2) if no particular circumstances exist to justify disqualification, was the testimony of the witness crucial to the defense. Id. (citing Webb v. State, 766 S.W.2d 236, 245 (Tex. Crim. App. 1989)). The appellant has the burden of establishing both prongs. Id.
Taylor contends Henry's testimony was crucial because the trial centered around T.G.'s credibility and Henry could have directly controverted one of her claims. However, excluded testimony is not considered crucial if it can be supplied by witnesses other than the excluded witness. See Cooper v. State, 578 S.W.2d 401, 403 (Tex. Crim. App. [Panel Op.] 1979), overruled in part on other grounds, Bates v. State, 587 S.W.2d 121, 143 (Tex. Crim. App. 1979); Flores v. State, 915 S.W.2d 651, 653 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd).
The confrontation between T.G. and her mother and Taylor and his family was confirmed by Gladie Roy, Taylor's mother. Gladie's testimony was apparently anticipated by Taylor, and she was placed under the Rule. Gladie testified that she, Henry, and Taylor were all present during the confrontation by T.G. and her mother. Gladie further testified she asked T.G. whether the allegations she was making against Taylor were true, and T.G. replied, "I’m not sure." It was therefore clear to Taylor that the conversations between the various participants in this confrontation were important. He could have reasonably expected to call Henry to testify regarding some aspect of that confrontation, particularly, who was conversing with whom, which would necessarily include a private conversation between Henry and T.G., or the lack of a private conversation between them. Taylor, having knowledge of Henry's presence in the courtroom and the context of his potential testimony, fails to meet the first prong of the Webb test.
Taylor also fails to meet the second prong because the excluded testimony was not crucial to his defense. There were obviously other participants in the confrontation who could have addressed the issue of whether T.G. and Henry spoke together in private. While the other witnesses could not have testified concerning what was said during a private conversation between T.G. and Henry, if any such conversation occurred, they could have testified as to whether a private conversation took place at all, which is what Henry denied in Taylor's proffer of his testimony. The ultimate issue Taylor sought to prove with Henry's testimony, that no private conversation occurred between T.G. and Henry, could easily have been proven by Gladie's testimony. Her testimony centered around the confrontation where the private conversation was alleged to have occurred. Taylor, however, chose not to ask Gladie about this matter when he called her to testify. Because other witnesses could have testified to the facts Taylor offered through the proffered testimony of Henry, that proffered testimony was not crucial. Taylor's first point of error is overruled.
In his second point of error, Taylor complains that
The trial court erred in giving an "Allen" charge to the jury after the jurors sent out multiple notes indicating that one of the members of the jury knew the child complainant personally, that the jury was divided 11 guilty to 1 not guilty, that the person voting "not guilty" has a personal attachment with the neighborhood and one of the witnesses, and that the juror would not [sic] longer deliberate with the majority of the jury.
An Allen charge is usually given in response to a specific request by the jury for additional guidance when the jury is deadlocked. See West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003, pet. ref'd). 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. Id. An Allen charge is unduly coercive and therefore improper if it pressures jurors into reaching a particular verdict or improperly conveys the court's opinion of the case. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973).
The following time line is helpful in understanding the progression of jury notes in this case:
November 18, 2004
11:44 a.m.jury deliberations began
12:30 p.m.jury excused for lunch
1:30 p.m.jury deliberations resumed
3:38 p.m.first note asking for guidance because the jury was split eight- to-four for guilty; jury instructed to continue its deliberations
4:20 p.m.second note stating that the jury was broken 10-2 for guilty and that "one of the jurors knows Christy McDonald and at least one of the other children that was in front of the courtroom yesterday"; jury instructed to follow the written instructions and continue its deliberations
5:30 p.m.third note stating the jury was split 11-1 for guilty; no response given and jury excused for the day
November 19, 2004
9:05 a.m. jury deliberations resumed
10:12 a.m.fourth note stating the jury was split 11-1 for guilty and that the one voting not guilty "has a personal attachment with the neighborhood and one of the witnesses" and that "the juror will no longer deliberate with the majority of the jury"
10:29 a.m.Allen charge given, over Taylor's objections
11:55 a.m.jury given short break at its request
12:15 p.m. jury deliberations resumed
12:37 p.m. jury returned unanimous verdict of guilty
As noted, the jury had deliberated approximately two hours and forty-five minutes before reporting it was split eight to four. Approximately one hour after being instructed to continue deliberating, the jury reported it was split ten to two. The court instructed the jury to continue deliberating. Approximately one hour later, the jury reported being split eleven to one. The trial court, noting the jury was "deliberating and discussing and minds [were] being changed," sent the jury home for the day without further instructions concerning its deliberations. The next day, the jury deliberated for little more than one hour and reported that it was still split eleven to one and that the one "will no longer deliberate." Only then did the trial court give the following instruction:
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. And 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 the 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 deliberating.
Approximately two hours after receiving this charge, the jury returned into court with its unanimous verdict. On Taylor's request, the jury was polled and each of the twelve jurors affirmed that the guilty verdict was his or her individual verdict. Under these facts, we do not believe the charge given was coercive.
Although not as neutral as the instruction approved by the Texas Court of Criminal Appeals in Howard v. State, 941 S.W.2d 102, 123–24 (Tex. Crim. App. 1996), the Allen charge given in this case is similar to other instructions that have been reviewed and held to be noncoercive. See Arrevalo, 489 S.W.2d at 571–72; West, 121 S.W.3d at 109; Willis v. State, 761 S.W.2d 434, 437–38 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). As in West, the charge given in the instant case does not contain the type of language courts have held to be coercive. See, e.g., Green v. United States, 309 F.2d 852, 855 (5th Cir. 1962) (holding Allen charge coercive that told jury it is duty of minority to listen to argument of majority with some distrust of their own judgment because rule is that majority will have better judgment than mere minority). Although not as neutral as it could have been, the instruction in the instant case did not tell the jury that one side or the other possesses superior judgment, and did not tell the jurors to distrust their own judgment. It did tell the jurors twice not to do violence to their conscience.
Because the charge given was not coercive on its face, and because nothing shows it acted to coerce the jury, we hold that Taylor has not shown that jury coercion or misconduct likely occurred or occurred in fact. His second point of error is overruled.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: September 6, 2005
Date Decided: September 8, 2005
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