COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00025-CR
DERRICK FLORENCE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2010-1034-D
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MEMORANDUM OPINION1
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Introduction
Appellant Derrick Florence was tried on six counts of aggravated sexual
assault of a child less than fourteen years of age. A jury found him not guilty of
four counts but guilty of two and assessed his punishment at 30 years’ and 35
years’ confinement, respectively. The trial court sentenced Appellant accordingly,
1
See Tex. R. App. P. 47.4.
ordering the sentences stacked. In three issues, Appellant contends that the trial
court erred by (1) failing to charge the jury to render a unanimous verdict on each
count, (2) denying Appellant’s motion to sequester and (3) not declaring a
mistrial. We affirm.
Facts
C.B. testified that Appellant sexually assaulted her four to five times a
week for a period of three years, beginning when she was six years old. She
further testified that Appellant warned her he would kill her and her mother if she
told anyone.
The jury retired to deliberate at 2:40 p.m. Before 5:00 p.m., it passed a
note to the trial court. The record reveals the following as the trial court worked
out its response to the jury’s note with the assistance of counsel from both sides:
THE COURT: [. . .] The jury has sent out a note. There are
five questions on it, kind of more procedural rather than substantive.
I’ll read all the questions, and then we can formulate the answers.
First question is: (Reading) Must we complete the
deliberations today? The second question is: (Reading) What time
should we stop deliberating for the day? No. 3 is: (Reading) If we
cannot decide unanimously, what happens? No. 4: (Reading) If we
have to stay, can food be provided? Five: (Reading) We would like
to meet again at 8:30.
....
[U]sually I need to refer to the charge of the Court, but pretty
much all of them, except for that not being unanimous, can simply, I
think, be answered without any concern of––must we complete
deliberations today? Just no.
....
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[APPELLANT’S COUNSEL]: Yeah. Now, that––that’s an
appropriate answer. I––I don’t think you’ll violate anything and
cause any error by––by answering that, that––I think you could
advise them that they can complete deliberations when––
THE COURT: Okay.
[APPELLANT’S COUNSEL]: ––when and if they reach a
unanimous verdict. There’s no time limit.
THE COURT: And so to the––to the question, must we
complete the deliberations today, anything further than a no?
[THE STATE]: Nope.
[APPELLANT’S COUNSEL]: No, ma’am.
THE COURT: Okay. Then I’m writing that.
To Question 2: (Reading) What time should we stopped [sic]
deliberating for the day?
[THE STATE]: I mean, you can just say when you want to or
5:00 o’clock, I guess, would be my––
....
[APPELLANT’S COUNSEL]: Yeah. I––I––I think––I think a
good answer, you know, with all due respect to everybody here, I
think, is: That’s usually left up to the jury, but typically we recess at
5:00 o’clock. Would that––
THE COURT: I recess as close to 5:00 for security reasons
these days. But I think it is their decision on it, but they certainly can
recess at 5:00.
[APPELLANT’S COUNSEL]: Absolutely. . . .
THE COURT: . . . . Okay. So 2: (Reading) What time should
we stop deliberating for the day? I think an appropriate response
would be: The jury can decide how long they wish to deliberate, but
you may stop at 5:00 if you choose.
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[APPELLANT’S COUNSEL]: I think that’s fine.
....
THE COURT: All right. Let me mention 4 and 5 to the
attorneys here. (Reading) If we have to stay, can food be provided?
I’ll just say: You do not have to stay.
[APPELLANT’S COUNSEL]: But food will be provided if you
choose to or. . .
THE COURT: Not unless they’re sequestered.
THE BAILIFF: We have to find a place that would deliver, and
they have to pay for their own. It’s usually easier to let them go to
supper.
THE COURT: Okay. Well, they’re not sequestered, so they
could go get some if they want to.
....
[APPELLANT’S COUNSEL]: But they’ve got to stay together.
THE COURT: Well––
[APPELLANT’S COUNSEL]: No, they––no, they don’t have to
stay together. I’m sorry. That––that’s . . . . That was an improper
statement. I’m sorry. I’m thinking of something else.
THE COURT: I––all right. 2: if we have to stay, can food be
provided? My thought would be to respond: You are not
sequestered, and, therefore, you may take a break and obtain the
food of your choice. . . . .
[APPELLANT’S COUNSEL]: I thought the County paid for the
pizza.
THE COURT: I think it is only if they are sequestered.
[APPELLANT’S COUNSEL]: Well, maybe.
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THE COURT: All right. Well, let me ask this: (Reading) You
are not sequestered, so you may break for dinner at your own
expense. Is that––
[APPELLANT’S COUNSEL]: Or you can just say: The
County does not provide food. You may break for dinner and get––
THE COURT: Right.
[APPELLANT’S COUNSEL]: ––it on your own.
THE COURT: Yeah. County does not––yeah. You may
break for dinner––I––I’m going to put County does not––
(Pause in proceedings)
THE COURT: ––County does not provide it. All right.
(Reading) We would like to meet again at 8:30 in the morning.
No problem.
[THE STATE]: No problem.
[APPELLANT’S COUNSEL]: No problem. Up to the jury. No
problem.
THE COURT: Definitely, yes. No problem.
All right. The one in the middle: (Reading) If ––if we do not—
if we cannot decide unanimously what happened, I don’t know that
that really warrants an Allen charge right now. You are instructed
that you can continue deliberating in the morning, would be my
thought. Just tell them to deliberate. I think I need to be a little more
firm.
[APPELLANT’S COUNSEL]: I––I think it’s more appropriate
to direct them to their jury instructions, as opposed to––
THE COURT: What part of the jury instructions is going to
give their answer? I’m not pulling off––
[APPELLANT’S COUNSEL]: No, no. But––but you––that
they should deliberate until they reach a unanimous verdict.
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THE COURT: (Reading) If we cannot decide unanimously
what happens––I––to me, if they said, we cannot reach a
unanimous verdict, we are––we cannot do that, then I’d give them
the Allen charge.
[APPELLANT’S COUNSEL]: Yes.
....
THE COURT: And my thought is: If you cannot decide
unanimously what happens, you will be directed to continue
deliberating. You are instructed––
[APPELLANT’S COUNSEL]: Or maybe: Should that––you
know, should that happen––should that happen, you’ll be given
additional instructions. Because it––it does seem like it’s not a
conclusion at this point but what happens further on down the road.
So if indeed that does happen, you’ll be given additional instructions.
Maybe? I just want to make sure everything is clean and––
THE COURT: I want to make them deliberate before they
decide if they want––if they want to figure out what the instructions
are, all we have to say is, we’re not unanimous at this time.
[APPELLANT’S COUNSEL]: Uh-huh.
....
THE COURT: How about: You will be requested to continue
to deliberate until you reach a verdict?
[APPELLANT’S COUNSEL]: Sure.
Counsel for both sides agreed to the trial court’s written responses to the
jury’s questions, and the trial court judge signed off on them and sent them to the
jury. Later that day, the jury asked to break for the night, and with no objections
from either side, the trial court issued admonishments and released the jury until
the next day. The jury reconvened in the morning and deliberated until
approximately 2:00 p.m., at which point it sent out the following note:
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With diligent deliberation all twelve jurors have reached their
decisions and are firmly resolved. However, it is not unanimous.
We honestly believe that no amount of additional deliberation will
provide the necessary unanimous verdict.
We understand the seriousness of the crime and the great
responsibility the law has placed upon us.
Given our position, what is the direction of the court?
The court issued an Allen charge, and the jury retired to the jury room and
resumed deliberations. When it had deliberated for approximately two and a half
more hours, Appellant moved for a mistrial based on a deadlocked jury. The trial
court denied the motion, at which point Appellant moved to sequester. The trial
court denied that motion as well, and after the jury had deliberated for the rest of
the day without having reached a verdict, the trial court admonished and
dismissed it for a second night. The jury retuned again in the morning and
reached a verdict at 9:40 a.m.
Untimely Motion to Sequester
In Appellant’s first issue, he contends that the trial court erred by allowing
the jurors to separate once deliberations had begun. But by failing to ask the trial
court to sequester the jury until after the deliberations were already underway,
Appellant has forfeited this issue.
We agree with our sister court in Austin, which has reasoned under similar
circumstances,
Appellant’s right to have the jury sequestered is one that is
forfeited if no motion to sequester is made. Therefore, to preserve
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for appeal a complaint that the trial court has deprived him of the
right to have the jury sequestered, the defendant must first timely
request sequestration. A timely request is one that is made before
jury deliberations begin or before the jury asks to separate. Without
such a request, it is within the trial court’s discretion to permit the
jury to separate.
Keiser v. State, 880 S.W.2d 222, 223 (Tex. App.––Austin 1994) (pet. ref’d)
(internal citations omitted).
Because the record shows that Appellant agreed to allow the jury to
separate and did not ask that it be sequestered until it had deliberated for two full
days, we hold that Appellant did not invoke his right to sequestration in a timely
manner and has forfeited this issue for appellate review. Cf. Sanchez v. State,
906 S.W.2d 176, 178 (Tex. App.––Fort Worth 1995, pet. ref’d) (holding that
appellant preserved his claim by timely objecting to jury’s first separation for
lunch during trial). Accordingly, we overrule Appellant’s first issue.
Charge Error Caused No Egregious Harm
In his second issue, Appellant claims that the trial court’s jury charge at
guilt-innocence was improper because it failed to require a unanimous verdict on
each count. The State concedes that the charge is erroneous under Cosio v.
State, 353 S.W.3d 766, 774 (Tex. Crim. App. 2011) (concluding that court of
appeals correctly held that charges allowed for the possibility of non-unanimous
verdicts). The trial court’s charge in this case instructed the jury on six allegations
of sexual assault but contained only a single unanimity instruction.
The Cosio court explained,
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First, non-unanimity may occur when the State presents
evidence demonstrating the repetition of the same criminal conduct,
but the actual results of the conduct differed. For example, if the
State charges the defendant with the theft of one item and the
evidence shows that the defendant had in fact stolen two of the
same items, the jury's verdict may not be unanimous as to which of
the two items the defendant stole. To ensure a unanimous verdict in
this situation, the jury charge would have to make clear that the jury
must be unanimous about which of the two items was the subject of
the single theft.
Second, non-unanimity may occur when the State charges
one offense and presents evidence that the defendant committed
the charged offense on multiple but separate occasions. Each of the
multiple incidents individually establishes a different offense or unit
of prosecution. The judge’s charge, to ensure unanimity, would
need to instruct the jury that its verdict must be unanimous as to a
single offense or unit of prosecution among those presented.
And third and finally, non-unanimity may occur when the State
charges one offense and presents evidence of an offense,
committed at a different time, that violated a different provision of the
same criminal statute. To ensure unanimity in this situation, the
charge would need to instruct the jury that it has to be unanimous
about which statutory provision, among those available based on the
facts, the defendant violated.
Id. at 771–72.
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must
determine whether error occurred. The State concedes that there was error in
the charge: it did not sufficiently instruct the jury that it had to reach a unanimous
verdict on each count of sexual assault.
Because the State correctly concedes error in the charge, we must then
evaluate whether sufficient harm resulted from the error to require reversal. Id. at
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731–32. The test for harm depends on whether Appellant objected to the
erroneous charge. Appellant did not object to the jury charge. If there is error in
the charge that was not objected to it at trial, we must decide whether the error
was so egregious and created such harm that appellant did not have a fair and
impartial trial––in short, that “egregious harm” has occurred. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code
Crim. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 171
(Tex. Crim. App. 1996). Jury charge error is egregiously harmful if it affects the
very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.
App. 2007); Hutch, 922 S.W.2d at 171.
When examining the record to determine whether jury-charge error is
egregious, the reviewing court should consider the entirety of the jury charge
itself; the evidence, including the contested issues and weight of the probative
evidence; the arguments of counsel; and any other relevant information revealed
by the record of the trial as a whole. Stuhler, 218 S.W.3d at 719; Bailey v. State,
867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Almanza, 686 S.W.2d at 171. The
purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to
prove and must be determined on a case-by-case basis. Ellison v. State, 86
S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.
10
The trial court’s charge to the jury contained a general unanimity
instruction and provided six separate verdict forms. Both the State and Appellant
explained to the jury that it was to reach a verdict on six separate counts. Jury
communications with the court specifically referred to the need to reach
unanimous verdicts. The jury convicted Appellant on Counts I and II, but
acquitted him on the remaining four counts.
In arguing that the erroneous charge caused him harm, Appellant argues
that the verdict implies that the jury either had doubts about the complainant’s
credibility or desired to extend leniency toward Appellant. Additionally, Appellant
argues that the erroneous charge makes it impossible to determine whether
jeopardy has attached to any given act alleged against him. At most, the harm
that Appellant argues he has suffered is hypothetical. Given the jury’s multiple
communications with the trial court indicating its awareness that the verdicts
were required to be unanimous, we hold that Appellant suffered no egregious
actual harm, and we overrule his second issue.
Mistrial Properly Denied
Two-and-a-half hours after the trial court issued its Allen charge, Appellant
moved for a mistrial. Now, without citing authority, he claims that the trial court
reversibly erred by denying his motion for mistrial because the jury had
deliberated for eleven-and-a-half hours at that point.
The jury began deliberations at 2:40 p.m. on December 6. It sent out a
note inquiring about food and what would happen if they could not reach a
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unanimous verdict. The trial court and the parties agreed that the unanimity
question did not require an Allen charge. The jurors were allowed to separate for
the night, and were required to return to court to continue deliberating at 8:30 the
next morning.
On December 7, the jury returned as instructed. It sent out a note with four
questions related to the evidence. Later the same day, it sent out another note
informing the court that it was not in unanimous agreement. Both the State and
Appellant requested an Allen charge. The trial court read the Allen charge to the
jury without objection. Two-and-a-half hours after the jury received the Allen
charge, Appellant orally moved for mistrial. He points out that he did so after the
jury had deliberated for more than eleven-and-one-half hours over two days. As
grounds for his motion, Appellant cited the length of time the jury had spent
deliberating, the notes it had sent to the trial court during deliberations, and its
silence since receiving the Allen charge. The trial court denied the motion for
mistrial, and the jury sent no additional notes stating that it had any difficulty
reaching a verdict. At 9:40 the following morning, December 8, the jury reached
a verdict.
There are no time limits on the amount of time a jury may deliberate. The
length of time a jury may be held for deliberation in a criminal case rests in the
sound discretion of the trial judge, who will not be reversed on appeal absent an
abuse of that discretion. Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App.
1999), cert. denied, 531 U.S. 837 (2000).
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The jury was presented with an indictment that required them to consider
allegations of six separate offenses. The evidence suggested that the offenses
were alleged to have been committed over a period of several years. The
offenses alleged were of a very serious nature, involving accusations of
aggravated sexual assault of a child. Although the trial court, as well as counsel
for both parties, believed it was proper to respond to the jury note regarding lack
of unanimity with an Allen charge, only a single Allen charge was required.
Nothing in the record suggests that the trial court abused its discretion by
denying Appellant’s motion for mistrial. We therefore overrule Appellant’s third
issue.
Conclusion
Having overruled Appellant’s three issues on appeal, we affirm the trial
court’s judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 24, 2014
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