COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00017-CR
HUDSON HILL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Hudson Hill appeals his conviction for delivery of a controlled
substance. We affirm.
Appellant was arrested on a warrant after a narcotics officer identified him
from a photograph as the person who had sold the officer crack cocaine during
an undercover buy.
1
See Tex. R. App. P. 47.4.
During deliberations at Appellant’s trial, the jury sent out a note stating,
―We are not able to come to a unanimous decision about the identification. Can
you help us?‖ The trial court instructed the jury to continue deliberating. Later in
the evening, the jury sent out another note requesting to see a report written by
the undercover officer. The trial court responded that the officer’s report had not
been admitted in evidence and would not be furnished. The trial court then
allowed the jury to recess for the evening.
When deliberations continued the next morning, the jury sent out a third
note stating, ―We are not going to be able to come to a unanimous decision, but
we need to see the police report and the photo of the defendant.‖ The note also
indicated that the jury was split 9–3, but it did not indicate which side of the split
thought Appellant was guilty and which side thought he was not.
The State requested an Allen charge. See Allen v. United States, 164 U.S.
492, 501, 17 S. Ct. 154, 157 (1896). Appellant objected and requested a mistrial.
The trial court denied the State’s request for an Allen charge and Appellant’s
motion for mistrial. In response to the jury’s note, the trial court stated that the
jury could see the photo but not the report. Shortly thereafter, the foreman sent
out a final note, stating, ―The photo did not make a decision for us. Both sides
are dug in and are not going to change their decision. I feel that further
deliberation is not going to accomplish our goal.‖
The State again requested an Allen charge. Appellant lodged several
objections including that additional instructions were not called for, would violate
2
article 36.16 of the code of criminal procedure, would be a comment on the
weight of the evidence as a whole, would suggest that the jury return a verdict
not based on the evidence, would be coercive, and would do violence to the
conscience of certain jurors. Appellant also moved for a mistrial. The trial court
denied Appellant’s objections and motion for mistrial and issued the following
instruction:
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.
This 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 empanelled in the same way
this jury has been empanelled 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 instruction, 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 then deliberated for approximately seven more minutes before
returning a verdict of guilty. Appellant pleaded true to the indictment’s
enhancement paragraph, and the trial court assessed punishment and sentenced
Appellant to four years’ confinement.
On appeal, Appellant argues in two points that the trial court erred by
issuing the Allen charge and by denying his motion for mistrial. The purpose of
an Allen charge is to instruct a deadlocked jury to continue deliberating. See id.
3
The court of criminal appeals has approved the use of such a charge. Howard v.
State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996), cert. denied, 535 U.S. 1065
(2002). Giving an Allen charge is reversible error only if, on its face, the charge
is so improper as to render jury misconduct likely or if jury misconduct is
demonstrated to have occurred in fact. Calicult v. State, 503 S.W.2d 574, 576
n.2 (Tex. Crim. App. 1974). To prevail on a complaint that an Allen charge is
unduly coercive, an accused must show that jury coercion or misconduct likely
occurred or did in fact occur. Love v. State, 909 S.W.2d 930, 936 (Tex. App.—El
Paso 1995, pet. ref’d). An Allen charge is unduly coercive and therefore
improper only if it pressures jurors into reaching a particular verdict or improperly
conveys the trial court’s opinion of the case. See Arrevalo v. State, 489 S.W.2d
569, 571–72 (Tex. Crim. App. 1973). The primary inquiry is the coercive effect of
such a charge on juror deliberation in its context and under all circumstances.
Howard, 941 S.W.2d at 123.
We have held that Allen charges almost identical to the one given in this
case were proper and not coercive. See West v. State, 121 S.W.3d 95, 109
(Tex. App.—Fort Worth 2003, pet. ref’d); Franks v. State, 90 S.W.3d 771, 800–01
(Tex. App.—Fort Worth 2002, no pet.); Ball v. State, No. 02–06–00268–CR, 2007
WL 2744883, at *4 (Tex. App.—Fort Worth Sept. 17, 2007, pet. ref’d) (mem. op.,
not designated for publication). On the other hand, we have not hesitated to find
coercion when it is present. See Barnett v. State, 161 S.W.3d 128, 134–35 (Tex.
App.—Fort Worth 2005) (holding that coercion existed because trial court singled
4
out two holdout jurors, informed them that it ―had a problem‖ with them, and
asked them if they could change their votes if sent back to deliberate further),
aff’d, 189 S.W.3d 272 (Tex. Crim. App. 2006); see also Green v. United States,
309 F.2d 852, 853 (5th Cir. 1962) (holding that it was impermissible for the trial
court to give an Allen charge that stated in part, ―[I]t is the duty of the minority to
listen to the argument of the majority with some distrust of their own judgment
because the rule is that the majority will have better judgment than the mere
minority‖).
Here, we see no evidence of coercion. The Allen charge given in no way
singled out the minority or made any comment on the weight of the evidence. It
even went as far as to remind jurors to arrive at a verdict only if they could do so
―without doing violence to your conscience.‖ Although Appellant filed a motion
for new trial, it did not allege juror coercion or misconduct. Under these
circumstances, we hold that the fact that the jury deliberated approximately
seven more minutes after the Allen charge was given before reaching a verdict is
insufficient to show that coercion or misconduct likely occurred or occurred in
fact. See Howard, 941 S.W.2d at 123; Arrevalo, 489 S.W.2d at 571.
5
Accordingly, we overrule Appellant’s two points, and affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 3, 2011
6