Joseph Christopher Lewis v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00060-CR
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JOSEPH CHRISTOPHER LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 1A District Court
Tyler County, Texas
Trial Cause No. 12,519
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MEMORANDUM OPINION
In a single issue, Joseph Christopher Lewis appeals his conviction for
aggravated sexual assault of a child for which he received a mandatory life sentence
in prison based on prior sexual offenses enhancing his sentence. See Tex. Penal Code
Ann. §§ 12.42(c)(2), 22.021(a)(1)(B)(ii), (a)(2)(B) (West Supp. 2018).1 Lewis
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The amendments made to the Texas Penal Code after the commission of the
offense do not impact our resolution of the issue on appeal.
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argues the trial court abused its discretion by not granting a mistrial under manifest
necessity but rather improperly coercing the jury into reaching a verdict after it
notified the trial court it was deadlocked. The State contends Lewis failed to preserve
his issue, and even if the alleged error was preserved for review, the trial court did
not improperly instruct the jury to continue deliberations. We agree with the State
and affirm the trial court’s judgment.
Background
After hearing evidence from each party, listening to closing statements, and
receiving the trial court’s final instructions, the jury recessed at 2:58 p.m. for
deliberation. At 4:35 p.m., the jury sent a note to the trial court requesting certain
evidence. The trial court provided all the exhibits to the jury and requested they
clarify the testimony they desired. At 4:54 p.m., the jury stated they wanted the
testimony from the complaining witness. Soon thereafter, they were released for the
day at 5:03 p.m.
The jury began its deliberations at 9:00 a.m. the next day. The jury then sent
another note requesting testimony from another witness, to which the trial court
asked the jury to specify what portion of the witness’s testimony they wanted. At
11:46 a.m., the jury requested the witness’s testimony in its entirety, and the trial
court agreed to get it to the jury as soon as it could be transcribed. At 2:22 p.m., the
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jury sent another note informing the trial court that they were “deadlocked at 7 guilty,
5 not guilty.” The trial court stated it would read the “dynamite” charge 2 after
assembling all the parties and the jury.
Once everyone was present in the court room, the trial court noted the jury
had informed the court that it was deadlocked, and the court charged the jury as
follows:
. . . If you resolve this case — if you can resolve this case by your
verdict, you should do so. I don’t mean to say that any individual juror
should yield his or her conscience and positive conviction but I do mean
that when you’re in the jury room, you should discuss this matter among
yourselves carefully and listen to each other. Try, if you can, to reach a
conclusion on the issue. It is your duty as jurors to keep your minds
open to every reasonable argument. A juror should not have any pride
or opinion and should avoid hastily forming or expressing an opinion.
A juror should not, however, surrender conscientious views founded
upon the evidence unless convinced by fellow jurors. I am satisfied that
you have not — and I am satisfied that you have not deliberated
sufficiently.
At this moment I’m not going to accept your — the statement
that you are deadlocked. I’m going to ask you to deliberate just a little
bit longer. If you within a reasonable amount of time do not think that
you’re going to be able to come up with a verdict, then you need to let
me know again.
The trial court then told the jury foreman to “try again,” “[j]ust a little while — give
it just another shot.”
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A “dynamite” charge refers to a standard Allen charge. See Allen v. U.S., 164
U.S. 492, 501 (1896).
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A little over an hour later, at 3:44 p.m., the jury informed the court it was
deadlocked “at guilty 11, not guilty 1.” The trial court explained to the State and
defense counsel it was considering asking the foreman, if given more time, would
the jury be able to reach a verdict. The trial court asked counsel whether the parties
had any suggestions. The State had no objection to the trial court’s suggestion:
Lewis’s counsel stated, “I can’t — I — what the situation is — I can’t ask for the
discharge of the jury. My client has to consent to that. I can’t consent to that.” At
3:50 p.m., after assembling the parties and the jury, the trial court informed the jury
of the following:
I have personally never — well, I’ve been a district judge for
about two years, a little over two years. So I’ve presided actually in
those two years over many cases for — you know, for a person who’s
been on the bench for two years so — but I do have to say that so far
I’ve not had a jury that’s hung up, not that it’s — I’m certain it’s going
to happen in my career at some time.
But I want to say this: Y’all are very close. You’re very close to
a verdict and I want to encourage you to try to keep an open mind and
listen to one another because, you know, somebody else is going to
have to come in here and do this if we can’t, you know, come to some
resolution. So I really do want to encourage you to spend just a few
more minutes.
I don’t want — I’m not reading off anything. I’m just telling you
that this is — it’s — there’s a lot to this and I don’t want to say to you,
you know, disobey your own conscience and your own — you know,
your own heart but I would ask you to open your minds and really try
hard to listen to one another and, if it’s possible, to come up with a
verdict. I do want y’all to spend a few more minutes, please, trying to
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work through this. I’m not going to give up on y’all. So I’m going to
give you a few more minutes.
....
So anyway — but that’s what I’m going to ask you to do. Please
spend a few more minutes discussing and trying to keep an open mind
and, if it’s possible, to come up with a verdict. I sure hope you will.
Okay.
Soon thereafter, at 4:12 p.m., the trial court informed the parties the jury had
reached a verdict. The jury found Lewis guilty of aggravated sexual assault of a
child.
Analysis
Initially, we note Lewis did not preserve his complaint that the Allen charges
were coercive. To preserve an error for appellate review, a party must present a
timely objection to the trial court, state the specific grounds for the objection, and
obtain a ruling. Tex. R. App. P. 33.1(a). When a defendant does not object to the
trial court’s submission of an Allen charge, error is not preserved. Thomas v. State,
312 S.W.3d 732, 740 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing
Freeman v. State, 115 S.W.3d 183, 186 n.2)) (finding failure to object to an Allen
charge waives error). Lewis’s counsel made no objection or statement regarding the
trial court’s first Allen charge. Concerning the trial court’s second charge, the trial
court informed the parties of its thoughts to again instruct the jury to continue its
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deliberation. When the trial court asked for suggestions from the parties, defense
counsel merely informed the trial court he could not ask for a mistrial without
consent of his client, Lewis. At no time before or after the two Allen charges were
given to the jury did Lewis object to the charges or request a mistrial. Accordingly,
Lewis has not preserved any complaint about the Allen charges for appellate review.
Nonetheless, even if we were to consider the Allen charges given in this case,
neither have been shown to be coercive. An Allen charge is a supplemental charge
sometimes given to a jury that declares itself deadlocked. See Allen v. U.S., 164 U.S.
492, 501 (1896). It reminds the jury if it is unable to reach a verdict, a mistrial will
result, the case will still be pending, and there is no guarantee a second jury would
find the issues any easier to resolve. Id.; Howard v. State, 941 S.W.2d 102, 123 (Tex.
Crim. App. 1996). While such a charge is permissible in both federal and Texas
courts, trial courts must carefully word the instruction and administer it in a non-
coercive manner. Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App.
2006).
The primary inquiry when considering the propriety of an Allen charge is its
“coercive effect” on juror deliberations in its context and under the circumstances.
Howard, 941 S.W.2d at 123 (citing Lowenfield v. Phelps, 484 U.S. 231, 237 (1988));
Freeman, 115 S.W.3d at 186–87. An Allen charge that pressures jurors into reaching
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a particular verdict or improperly conveys the court’s opinion of the case is unduly
coercive. West v. State, 121 S.W.3d 95, 107–08 (Tex. App.—Fort Worth 2003, pet.
ref’d). Conversely, a charge that speaks to the jury as a whole and encourages jurors
to reexamine their views without surrendering honest convictions is not coercive on
its face. Freeman, 115 S.W.3d at 187.
Here, the charges addressed the entire jury, not any particular juror, and
instructed the jurors to continue deliberating without doing violence to their
conscience. The charges did not pressure jurors into reaching a particular verdict nor
convey the trial court’s opinion of the case in any way. The Court of Criminal
Appeals and other sister courts have approved Allen charges containing similar
language. See Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App. 1973);
Draper v. State, 335 S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d); West, 121 S.W.3d 108–09.
Because Lewis failed to preserve his sole issue on appeal, we overrule the
issue and affirm the trial court’s judgment.
AFFIRMED.
_________________________
CHARLES KREGER
Justice
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Submitted on August 9, 2018
Opinion Delivered January 9, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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