in Re: The Commitment of Gregory A. Jones

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00019-CV
___________________________

IN RE: THE COMMITMENT OF GREGORY A. JONES

On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 185,786-C

Concurring and Dissenting Memorandum Opinion by Justice Wallach
 CONCURRING AND DISSENTING MEMORANDUM OPINION

I respectfully concur in part with the majority opinion and dissent in part from

it. The majority holds that the evidence is legally sufficient to support the jury’s

verdict that Jones suffers from a behavioral abnormality that likely predisposes him to

committing sexually violent offenses in the future. In this holding, I concur.

The majority also holds that the language of the Allen1 charge as a whole and in

the context of the circumstances in which it was issued is impermissibly coercive and

harmful error causing the rendition of an improper judgment. I respectfully dissent

from this holding. Although the Allen charge had possibly coercive elements, no

reversible error is shown from the record. Thus, I would respectfully overrule this

issue and address Jones’s remaining issues.

The analytical starting point regarding coerciveness of Allen charges in civil

cases is Stevens v. Travelers Ins., 563 S.W.2d 223, 229–32 (Tex. 1978). In Stevens, the

court was confronted with resolving a divergence among the courts of appeals

regarding the proper analysis of Allen charges in civil cases to determine the issue of

impermissible coerciveness. Id. at 226–29. In announcing its resolution of this

divergence, the court noted three principles that are important to this analysis:

Our law does not contemplate that every jury will function perfectly and,
to that end, broad discretion is vested in the trial judge to aid in
administering and expediting the fact finding process. It is this concern
for the expeditious administration of justice that must be balanced
against the concern for impartiality in the fact finding process in

1
Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896).

2
 determining whether it is proper for judges to insert themselves into that
process at all.

....

. . . Words of instruction in one context and time frame may be
coercive but in another may be no more than a permissible effort on the
part of the trial judge to bring the deliberations of the jury to a
conclusion in a manner fair to the litigants.

Therefore, in order to test a particular charge for coerciveness, it
is necessary that the charge be first broken down into its several
particulars and analyzed for possible coercive statements. A possibly
coercive statement will not invalidate the charge, however, unless it
retains its coercive nature when the charge is then read as a whole and all
of the circumstances surrounding its rendition and effect are considered.

Id. at 228–29.

The Stevens court did not expressly address the concept of reversible error.

However, the court looked not only to the language of the charge but also to its effect

in ruling that the charge as a whole did not have a coercive effect. Id. at 232 (noting

that the jury deliberated an additional four hours after a weekend break before

reaching a verdict). Nevertheless, in light of Texas Rule of Appellate Procedure

44.1(a), the need to show reversible error seems to be required. Tex. R. App. P.

44.1(a); see Elec. Bankcard Sys., Inc. v. Retriever Indus., Inc., No. 14-04-00452-CV, 2005

WL 3435294, at *2 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, no pet.) (mem.

op.) (noting in dictum that even if the appellant had not waived its complaint that the

charge was coercive, the charge was not reversible under Rule 44.1(a)).

3
 As stated by Rule 44.1(a),

(a) No judgment may be reversed on appeal on the ground that the trial
court made an error of law unless the court of appeals concludes that the
error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the
case to the court of appeals.

Tex. R. App. P. 44.1(a); see In re Commitment of Jones, 602 S.W.3d 908, 913 (Tex. 2020)

(op. on reh’g); see also State v. Williams, 932 S.W.2d 546, 556 (Tex. App.—Tyler 1995),

writ denied, 940 S.W.2d 583 (Tex. 1996) (per curiam). Interpretations regarding the

coercive effects of Allen charges in criminal cases are persuasive authority in these

sexually-violent-predator commitment appeals. See In re Commitment of Jurischk, No. 03-

18-00670-CV, 2019 WL 2308594, at *8 (Tex. App.—Austin May 31, 2019, no pet.)

(mem. op.). In criminal jurisprudence, if there is a defect in the charge due to

coerciveness, to constitute reversible error there must be some showing that the

instruction influenced an improper verdict. Thetford v. State, No. 02-18-00488-CR,

2021 WL 278913, at *14 (Tex. App.—Fort Worth Jan. 28, 2021, pet. filed) (mem. op.,

not designated for publication); O’Brien v. State, No. 14-94-01218-CR, 1996 WL

711221, at *2 (Tex. App.—Houston [14th Dist.] Dec. 12, 1996, pet. ref’d) (not

designated for publication); Jackson v. State, 753 S.W.2d 706, 712 (Tex. App.—San

Antonio 1988, pet. ref’d); Griffith v. State, 686 S.W.2d 331, 333 (Tex. App.—Houston

[1st Dist.] 1985, no pet). Thus, a coercive charge that improperly influences a verdict

4
is harmful under either standard; a coercive charge that does not is harmless under

either standard.

The Allen charge given in this case provided, with the allegedly objectionable

portions bolded,

This case has to be settled by some twelve jurors. I regard all of
you as honest and intelligent jurors. I do not know of any twelve
jurors who can do better than you can. I think if you can settle it,
and you should settle it, if possible.
I have no desire to attempt to coerce you into a verdict. This is a
matter for each of you to determine for yourself, but it is to the
interest of society that you should reconsider your differences, and,
if you can, agree upon a verdict.
You will please return to your room, and if you can reconcile
your differences and agree upon a verdict, I hope you will please
do so.
Applying the Stevens procedure, I first examine the challenged portions

separately for their potential coercive effect. I agree with the majority that the first

two sentences seem innocent and a neutral observation akin to the “ably tried by

experienced lawyers” comments addressed in Stevens, 563 S.W.2d at 230; see also

Freeman v. State, 115 S.W.3d 183, 187 (Tex. App.—Texarkana 2003, pet. ref’d) (holding

it is not coercive to instruct a jury as part of an Allen charge that if they cannot reach a

verdict then a mistrial will result). I disagree with the majority’s view of the third

sentence. In my opinion, the third sentence is not problematic as it is neutral on its

face. It simply reaffirms the jury’s ability to do its job. See Stevens, 563 S.W.2d at 230.

Likewise, in my opinion, the instruction in the second paragraph about “reconsidering

5
your differences” in the “interest of society” is not coercive. It does no more than

instruct the jury that they are to conduct themselves in a reasonable and mature

manner. See id. at 231.

However, the fourth sentence of the first paragraph, the last clause of the

second paragraph, and the last sentence of the charge, taken together—“I think if you

can[,] settle it; and you should settle it, if possible”; “if you can, agree upon a verdict”;

and “if you can reconcile your differences and agree upon a verdict, I hope you will

please do so”—are possibly coercive as they tell the jurors that it would be displeasing

to the court if they do not reach a verdict. See id. at 230. I thus agree with the majority

that these statements in the charge have a possibly coercive effect, but that is the

extent of my agreement.

Having found a portion of the charge to be possibly coercive when standing

alone, the next step is to “examine the charge as a whole and the circumstances

surrounding it in order to properly gauge its effect.” Id. at 232. In light of the

requirements of Rule 44.1(a), this reference in Stevens to gauging the effect of possibly

coercive language equates to determining if the Allen charge, as worded, constituted

reversible error. See Tex. R. App. P. 44.1(a); Stevens, 563 S.W.2d at 230; see also Dennis v.

Hulse, 362 S.W.2d 308, 309 (Tex. 1962) (stating reversible-error rule under former

Civil Procedure Rules 434 and 503: “Under our practice an appellate court is not

authorized to reverse merely because the record discloses some error that is

6
reasonably calculated to cause a miscarriage of justice. The party appealing must also

show that it probably did cause the rendition of an improper judgment in the case.”).

Applying Stevens, I initially note that the trial judge mitigated the possibly

coercive effect of the above referenced language by telling the jurors that he had no

desire to coerce them into a verdict. Thus, while the trial judge may have left the jury

with the impression that reaching a verdict would please the court, he also directly

told the jurors that he had no desire to coerce them into reaching a verdict, diluting

any coercive effect from language indicating that a verdict would please the court. See

Stevens, 563 S.W.2d at 232 (holding that trial court’s telling the jurors not to forsake

their personal convictions diluted any coercive effect of trial court’s statement that it

would disapprove the jury’s failure to reach a verdict). Other language in the charge

further dilutes any possible coercive effect. Although the majority notes that the trial

court in the instant matter did not include any language in the Allen charge expressly

stating that the jurors should not forsake their own personal convictions to reach a

verdict, the trial court did include this language, “This is a matter for each of you to

determine for yourself . . . ,” which is the equivalent of language stating that the jurors

should not forsake their own convictions to reach a verdict. See Kelly v. State, 310 A.2d

538, 542 (Md. 1973) (upholding an Allen-type charge delivered to the jury before

deliberations that contained the instruction, “[I]t is up to you to determine for

yourselves . . . .”). The dilution is likewise equivalent.

7
 To further address whether the Allen charge here is reversible, I look to

criminal law because this concept has been explored in more detail in the criminal

jurisprudence of this state than in the civil context. In the criminal context, an Allen

charge may be coercive on its face or the charge may have a coercive effect “in its

context and under all the circumstances.” Thetford, 2021 WL 278913 at *13. The

language of “evaluating an Allen charge’s coercive effect in its context and under all

the circumstances” is similar to the Stevens court’s language about examining the

charge as a whole and the circumstances surrounding it to properly gauge its effect.

Compare id., with Stevens, 563 S.W.2d at 229. Such being the case, I rely not only on

Stevens but also on criminal cases which have applied this test.

In Thetford, this court summarized a nonexclusive list of factors to consider in

determining whether an Allen charge demonstrates actual jury coercion:

(1) the length of deliberations prior to the Allen charge; (2) the length of
the trial; (3) the amount and complexity of the evidence involved; (4) the
nature of the case; (5) whether the Allen charge was premature; (6)
whether the jury was required to endure “marathon deliberations”; (7)
the number of Allen charges given; (8) whether the Allen charge
cautioned the jurors not to violate their consciences; (9) whether the trial
court singled out or pressured the minority jurors; (10) the trial court’s
knowledge of or inquiry into the jury’s numerical division; (11) the
length of deliberations following the Allen charge; (12) the jury’s notes
and requests to review evidence after the Allen charge; and (13) whether
the jurors each affirmed the verdict upon polling.

2021 WL 278913, at *14. Applying these factors to this case, I would respectfully hold

that the Allen charge did not have a coercive effect in its context and under all the

circumstances.

8
 The first five factors listed in Thetford—the length of deliberations prior to the

Allen charge, the length of the trial, the amount and complexity of the evidence

involved, the nature of the case, and whether the Allen charge was premature—are

not problematic. That is, before receiving the Allen charge, the jury deliberated

approximately six hours after a seven-hour trial involving three witnesses, two of

whom were psychologists testifying about complex psychological disorders,

psychological testing, and testing results to assess civil commitment for a sexual

predator disorder. See Johnson v. State, No. 01-17-00903-CR, 2018 WL 4623738, at *4

(Tex. App.—Houston [1st Dist.] Sept. 27, 2018, no pet.) (mem. op., not designated

for publication) (holding Allen charge not coercive in a one-day sexual assault case,

with testimony from a DNA expert, two police officers, a sexual assault nurse, the

complainant, and the defendant, where jury was deadlocked after one day of

deliberations); Katzenberger v. State, 439 S.W.3d 566, 570–71 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d) (holding that trial court did not abuse its discretion by

denying a motion for mistrial and issuing an Allen charge after ten and a half hours of

deliberation on a seven-hour trial in a prosecution for aggravated sexual assault of a

child); Love v. State, 627 S.W.2d 457, 458–59 (Tex. App.—Houston [1st Dist.] 1981, no

writ) (holding in credit-card abuse case that trial court did not abuse its discretion by

refusing to declare mistrial when two-hour trial was followed by six hours of

deliberation during which jury sent three notes indicating deadlock), disapproved of on

other grounds by Ortega v. State, 668 S.W.2d 701 (Tex. Crim. App. 1983).

9
 The next two criteria, whether the jury was required to endure “marathon

deliberations” and the number of Allen charges, are nonfactors here. There was no

issue of marathon deliberations, and the trial court gave only one charge requiring

continued deliberations.

I address the eighth factor—whether the Allen charge cautioned the jurors not

to violate their consciences—above when I discuss the mitigating effects of the charge

as a whole. To reiterate, although the charge did not use the exact language of not

violating their consciences, it did tell the jurors that they each should determine the

case individually and that they should individually decide whether to reconsider their

positions. Thus, this charge communicated an equivalent message to a charge that

expressly instructs a jury not to violate its conscience; it did not pressure the jurors for

a verdict. See Miller v. State, No. 05-01-00510-CR, 2002 WL 1752168, at *2 n.4, *4

(Tex. App.—Dallas July 30, 2002, pet. ref’d) (not designated for publication)

(upholding an Allen charge instructing jurors to respect the opinions of each other and

to try to reach a verdict but also stating, “[N]ever assent to a verdict[] which violates

the instructions of the Court[,] a verdict which finds as a fact that which under the

evidence and your conscience you believe to be untrue.”).

The ninth and tenth Thetford factors do not apply here. Whether the trial court

singled out or pressured the minority jurors is not a factor here as that did not happen

in this case. Likewise, the trial court did not have knowledge of or inquire into the

jury’s numerical division.

10
 The eleventh and twelfth factors—the length of deliberation following the

Allen charge and the jury’s notes and requests to review evidence after the Allen

charge—are also not problematic here. The jury advised the trial court of its deadlock

around 4:15 P.M., the Allen charge was given about 4:49 P.M., a break was taken from

5:00 P.M. until 5:20 P.M., and the verdict was rendered at 6:30 P.M. without the jury’s

requesting to see or hear any evidence from the reporter’s record. See Mason v. State,

Nos. 07-19-00066-CR, 07-19-00067-CR, 2020 WL 4355522, at *8 (Tex. App.––

Amarillo July 29, 2020, no pet.) (mem. op., not designated for publication) (holding,

when jury had deliberated eight hours before Allen charge, that verdict rendered about

an hour after their receiving Allen charge with no request to review additional

evidence was not coercive); Minze v. State, No. 02-15-00352-CR, 2016 WL 4474352, at

*3–5 (Tex. App.––Fort Worth Aug. 25, 2016, no pet.) (mem. op., not designated for

publication) (holding, when jury had deliberated two hours before the Allen charge,

that verdict delivered fifteen to twenty minutes after Allen charge with no request to

review additional evidence was not coercive).

The final Thetford criterion is whether the jury was polled and whether each

juror affirmed the verdict upon polling. In this case, when the affirmative verdict was

returned, each juror individually confirmed, when polled by the court, that this verdict

was his or hers without any stated reservations or complaints of coercion. See Thetford,

2021 WL 278913, at *18.

11
 The majority contends that the Allen charge, at a minimum, forced this

unanimous verdict without the court’s properly advising the jury that a 10-2 “no”

verdict was also possible on the sexual predator question. For the reasons outlined

above, the Allen charge did not force the verdict. That the Allen charge forced the

verdict’s unanimity is sheer speculation.

The instruction Jones requested, but which the trial court erroneously refused,

was that only ten out of twelve votes were required to answer “no” to the sexual

predator question. Jones, 602 S.W.3d at 911. The record does not indicate what the

division was among the jurors regarding “yes” and “no” answers prior to their

deadlock. Under the circumstances, it would take a great deal of speculation to

envision a scenario where twelve jurors voted for a “yes” answer seventy minutes

after receiving an Allen charge but a substantial number of them had voted for a “no”

answer prior to the deadlock note. Nothing in the record remotely suggests that

conclusion, especially since the evidence was so overwhelmingly weighted toward a

“yes” answer.

In conclusion, I agree with the majority that the evidence is legally sufficient to

support the jury’s verdict that Jones is a sexually violent predator. I concur with the

majority opinion to that extent.

I disagree with the majority’s decision that the Allen charge in this case was

unduly coercive and reversible error. Based on the Supreme Court’s guidance in

Stevens and the thirteen criteria laid out in Thetford, I would hold that the Allen charge

12
in this case was not unduly coercive, or in the alternative, that any error is not

reversible, and I would overrule this issue and reach Jones’s remaining issues. Because

the majority does not, I respectfully dissent.

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: May 6, 2021

13