COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-306-CR
JACK DARL HARTMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Jack Darl Hartman appeals his conviction for felony driving while
intoxicated (DW I). See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Hartman
contends that the trial court erred by not declaring a mistrial when the jury remained
deadlocked following the submission of an “Allen charge.” 2 W e will affirm.
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See Tex. R. App. P. 47.4.
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Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 156 (1896).
II. Factual and Procedural Background
A grand jury indicted Hartman for felony DW I. Hartman pleaded not guilty and
waived arraignment. At the close of the first jury trial, the jury became deadlocked,
and the trial court declared a mistrial.
At the close of the second trial’s evidence and arguments, the trial court
submitted the jury charge without objection. At 4:04 p.m., the jury notified the court
that it was “deadlocked at [eight] guilty and [four] not guilty.” The trial court then
issued a modified Allen charge. 3 At 5:14 p.m., the jury sent an additional note that
they remained deadlocked “at [eleven] guilty and [one] no[t] guilty” and were “unable
to reach unanimous decision without violence of conscience.” At 5:24 p.m., the trial
court responded and instructed the jury, “Keep deliberating.” Sixteen minutes later,
the jury returned a verdict of guilty. Hartman pleaded true to the State’s
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The modified Allen charge read:
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 this case will be tried again before another jury at some
future time. Any such future jury will be 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.
W ith 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.
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enhancement paragraph. The jury assessed Hartman’s punishment at fourteen
years’ confinement. Hartman timely filed his notice of appeal.
III. Discussion
Hartman contends that the trial court’s instruction to the jury to “keep
deliberating” caused the jury to reach a coerced verdict. The State responds that
Hartman failed to preserve this issue for appellate review because he did not make
a timely objection to the trial court’s instruction.
A. Standard of Review
An objection must be made as soon as the basis for the objection becomes
apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942 S.W .2d 602, 618 (Tex.
Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk v. State, 729 S.W .2d 749, 753
(Tex. Crim. App. 1987). To preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W .2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070;
Ball v. State, No. 2-06-00268-CR, 2007 W L 2744883, at *2 (Tex. App.—Fort W orth
Sept. 17, 2007, pet. ref’d). Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party must
have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W .3d 334, 341 (Tex. Crim. App. 2004).
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B. Analysis
Hartman complains that the trial court’s answer to the jury to “keep
deliberating,” in response to the jury foreman’s note that the jury remained
deadlocked after receiving an Allen charge, caused the jury to reach a coerced
verdict. However, there is no evidence in the record that Hartman objected to the
trial court’s written response to the jury or that the trial court failed to notify Hartman
of the jury communication.
Article 36.27 of the Texas Code of Criminal Procedure governs jury
communications with the trial court and provides:
W hen the jury wishes to communicate with the court, it shall so
notify the sheriff, who shall inform the court thereof. Any
communication relative to the cause must be written, prepared by the
foreman and shall be submitted to the court through the bailiff. The
court shall answer any such communication in writing, and before giving
such answer to the jury shall use reasonable diligence to secure the
presence of the defendant and his counsel, and shall first submit the
question and also submit his answer to the same to the defendant or
his counsel or objections and exceptions, in the same manner as any
other written instructions are submitted to such counsel, before the
court gives such answer to the jury, but if he is unable to secure the
presence of the defendant and his counsel, then he shall proceed to
answer the same as he deems proper. The written instruction or
answer to the communication shall be read in open court unless
expressly waived by the defendant.
All such proceedings in felony cases shall be a part of the record
and recorded by the court reporter.
Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006). The purpose of this law is to
notify a defendant of a jury question and of the court’s proposed answer, if possible,
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and to give the defendant an opportunity to be heard and “urge objections, if any, to
such [answers].” Word v. State, 206 S.W .3d 646, 650 (Tex. Crim. App. 2006)
(quoting Edwards v. State, 558 S.W .2d 452, 454 (Tex. Crim. App. 1977)).
A silent record creates the presumption that a trial court complied with article
36.27. Green v. State, 912 S.W .2d 189, 192 (Tex. Crim. App. 1995). In Word, the
court of criminal appeals affirmed Green by holding:
Nothing in Article 36.27 (including its second paragraph) expressly
indicates a legislative intent that appellate courts should disregard
usual rules of procedural default and rules of appellate procedure and
presume that a defendant had no opportunity to object to a trial court’s
answers to jury questions when the record is silent.
Word, 206 S.W .3d at 652.
In Green, a capital murder case, the appellant never objected to the judge’s
responses to numerous notes sent by the jury. Green, 912 S.W .2d at 191–92. The
court of criminal appeals stated, “Since we presume the trial court’s response was
in open court and in appellant’s presence, we also presume appellant agreed to it.”
Id. at 193. The court therefore held, based on the presumption that the appellant
agreed, that the appellant waived any error by not objecting to the judge’s responses
to the jury. Id.
Similar to Green and Word, this court assumes that the trial court’s response
to the jury question was in open court, in Hartman’s presence, and that Hartman
agreed to it. See Green, 912 S.W .2d at 193; Word, 206 S.W .3d at 651–52.
Because he did not object at trial, Hartman failed to preserve his complaint for
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appellate review. See Green, 912 S.W .2d at 192; Word, 206 S.W .3d at 652. W e
overrule Hartman’s sole issue.
IV. Conclusion
By failing to timely object to the trial court’s written response to the jury to
“keep deliberating,” Hartman failed to preserve his claim that the response was
unduly coercive. W e affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 12, 2010
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