Aaron Charles Burton v. State ( 2015 )


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  • Opinion issued April 9, 2015
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00513-CR
    NO. 01-14-00514-CR
    ————————————
    AARON CHARLES BURTON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 351st District Court
    Harris County, Texas
    Trial Court Case Nos. 1330898 & 1330899
    MEMORANDUM OPINION
    A jury found Appellant guilty of two offenses: evading arrest or detention in
    a motor vehicle and possession of a controlled substance, namely, phencyclidine,
    weighing more than 1 gram and less than 4 grams. 1 Finding two enhancement
    paragraphs to be true, the trial court assessed Appellant’s punishment for each
    offense at 30 years in prison, with the sentences to run concurrently.
    On appeal, Appellant asserts four issues. He challenges the sufficiency of
    the evidence to support the judgment of conviction for possession offense, asserts
    that the trial court’s Allen 2 charge in the possession case was unduly coercive, and
    claims that the trial court erred in each case by failing to arraign him before the
    punishment phase on the enhancement allegations in each indictment.
    We affirm in each appeal.
    Background
    Around 1:00 a.m. on June 3, 2014, Deputy P. Gutierrez of the Harris County
    Sherriff’s Office initiated a traffic stop of Appellant’s vehicle when he noticed the
    car did not have a license plate. During the stop, Deputy Gutierrez confirmed
    Appellant’s identity by looking at his driver’s license. As he began walking to his
    patrol car to check whether Appellant had any outstanding warrants, Deputy
    Gutierrez shined his flashlight in the back of Appellant’s car. He saw, in plain
    1
    See TEX. PENAL CODE ANN. 38.04(b)(2)(A) (Vernon Supp. 2014) (evading arrest);
    TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (Vernon 2010) (possession
    of phencyclidine).
    2
    See Allen v. United States, 
    164 U.S. 492
    , 501, 
    17 S. Ct. 154
    , 157 (1896).
    2
    view, what he believed to be a large bag of marihuana. When Deputy Gutierrez
    turned around to ask Appellant to step out his vehicle, Appellant sped off.
    Two other sheriff’s deputies, Deputy B. Graham and his partner Deputy
    Faughtenbery, arrived at the scene just as Appellant was fleeing. Deputy Gutierrez
    asked the two deputies to pursue Appellant. Deputy Gutierrez got in his patrol car
    and joined the other officers in pursuing Appellant’s vehicle. Deputy Graham saw
    Appellant throw two baggies from his vehicle during the chase. Deputy Gutierrez
    stopped and picked up a baggie from the road, which he believed contained the
    marihuana that he had seen in the backseat.
    Appellant drove about one mile until he came to a dead end. At the dead
    end, Appellant jumped out of his car and ran into a nearby wooded area. Two of
    the officers gave chase but were not able to apprehend Appellant that night.
    Before it was towed, the officers inventoried Appellant’s car.           They
    recovered what appeared to be a baggie with marihuana from the driver’s seat.
    The officers also recovered a pill bottle from the center console, containing a
    smaller bottle inside it. The smaller bottle contained a liquid that a forensic
    laboratory later determined was 3.3 grams of phencyclidine, also known as PCP.
    A warrant was issued for Appellant’s arrest. He was charged in two separate
    indictments with the offenses of evading arrest or detention in a motor vehicle and
    possession of a controlled substance, namely, phencyclidine, weighing more than 1
    3
    gram and less than 4 grams. Each indictment also contained two enhancement
    paragraphs alleging that Appellant had previously been convicted of the offenses
    of possession of a controlled substance and possession of a controlled substance
    with the intent to deliver.
    At trial, the State presented the testimony of Deputy Gutierrez and Deputy
    Graham. The State also presented the testimony of the forensic lab employee, who
    had tested the substance in the bottle recovered from Appellant’s car.          The
    employee testified that her analysis of the substance revealed it was 3.340 grams of
    PCP, including adulterants and dilutants.
    After beginning deliberations, the jury sent a note to the trial court stating
    that it had reached a verdict regarding the evading arrest offense, but it was
    deadlocked 10 to 2 regarding the possession offense. The trial court gave the jury
    an Allen charge. Thereafter, the jury found Appellant guilty of the offenses of
    evading arrest or detention in a motor vehicle and of possession of a controlled
    substance, namely, phencyclidine, weighing more than 1 grams and less than 4
    grams. Appellant choose to have the trial court assess punishment.
    At the punishment hearing, Appellant, both orally and in writing, stipulated
    that he had previously been convicted of 23 offenses.          These included 17
    misdemeanors and 6 felonies. Among these were the two felony offenses forming
    the basis of the two enhancement paragraphs in the indictments. The stipulation of
    4
    evidence and each of the 23 judgments of conviction were admitted into evidence.
    Appellant also stipulated to two unadjudicated offenses.
    During closing argument, the defense requested the trial court to sentence
    Appellant to 25 years in prison, which, given the two enhancement paragraphs to
    which he had stipulated, was the minimum sentence Appellant could receive. The
    State requested that Appellant be sentenced to 35 years in prison.
    The trial court sentenced Appellant to 30 years in prison for each offense,
    with the sentences to run concurrently. Appellant now appeals the judgments of
    conviction.
    Sufficiency of the Evidence
    In his first and second issues, Appellant asserts that the evidence was legally
    and factually insufficient to support the judgment of conviction for the offense of
    possession of PCP. Specifically, Appellant contends that the State failed to prove
    that he knowingly possessed the PCP, an element of the charged offense. See TEX.
    HEALTH & SAFETY CODE ANN. §§ 481.002(38), 481.102(8), 481.115(a), (c)
    (Vernon 2010)
    A.    Standard of Review
    We review the sufficiency of the evidence establishing the elements of a
    criminal offense for which the State has the burden of proof under a single
    standard of review, regardless of whether an appellant presents the challenge as a
    5
    legal or a factual sufficiency challenge. See Ervin v. State, 
    331 S.W.3d 49
    , 53–54
    (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of
    Brooks v. State, 
    323 S.W.3d 893
     (Tex. Crim. App. 2010)). This standard of review
    is the standard enunciated in Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979). See Winfrey v. State, 
    393 S.W.3d 763
    , 768 (Tex. Crim. App.
    2013).
    Pursuant to the Jackson standard, evidence is insufficient to support a
    conviction if, considering all the record evidence in the light most favorable to the
    verdict, no rational fact finder could have found that each essential element of the
    charged offense was proven beyond a reasonable doubt. See Jackson, 
    443 U.S. at 319
    , 
    99 S. Ct. at 2789
    ; In re Winship, 
    397 U.S. 358
    , 361, 
    90 S. Ct. 1068
    , 1071
    (1970); Laster v. State, 
    275 S.W.3d 512
    , 517 (Tex. Crim. App. 2009); Williams v.
    State, 
    235 S.W.3d 742
    , 750 (Tex. Crim. App. 2007). We can hold evidence to be
    insufficient under the Jackson standard in two circumstances: (1) the record
    contains no evidence, or merely a “modicum” of evidence, probative of an element
    of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
    Jackson, 
    443 U.S. at 314
    , 318 & n.11, 320, 
    99 S. Ct. at 2786
    , 2789 & n.11; see
    also Laster, 
    275 S.W.3d at 518
    ; Williams, 
    235 S.W.3d at 750
    .
    The sufficiency-of-the-evidence standard gives full play to the responsibility
    of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
    6
    to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 
    443 U.S. at 319
    , 
    99 S. Ct. at 2789
    ; Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim.
    App. 2007). An appellate court presumes that the fact finder resolved any conflicts
    in the evidence in favor of the verdict and defers to that resolution, provided that
    the resolution is rational. See Jackson, 
    443 U.S. at 326
    , 
    99 S. Ct. at 2793
    .
    In our review of the record, direct and circumstantial evidence are treated
    equally; circumstantial evidence is as probative as direct evidence in establishing
    the guilt of an actor, and circumstantial evidence alone can be sufficient to
    establish guilt. Clayton, 
    235 S.W.3d at 778
    . Finally, “[e]ach fact need not point
    directly and independently to the guilt of the appellant, as long as the cumulative
    force of all the incriminating circumstances is sufficient to support the conviction.”
    Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007).
    B.    Elements of the Offense and Pertinent Legal Principles
    A person commits an offense if he knowingly or intentionally possesses
    more than one gram, but less than 4 grams, of PCP, including adulterants and
    dilutants. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(8), 481.115(a), (c).
    To prove possession, the State must show the accused (1) exercised control,
    management, or care over the contraband and (2) knew the substance possessed
    was contraband. Evans v. State, 
    202 S.W.3d 158
    , 161 (Tex. Crim. App. 2006);
    Roberts v. State, 
    321 S.W.3d 545
    , 548 (Tex. App.—Houston [14th Dist.] 2010, pet.
    7
    ref’d). Possession may be proved through either direct or circumstantial evidence.
    Poindexter v. State, 
    153 S.W.3d 402
    , 405–406 (Tex. Crim. App. 2005); see also
    Rice v. State, 
    195 S.W.3d 876
    , 881 (Tex. App.—Dallas 2006, pet. ref’d) (stating
    jury could infer knowing or intentional possession of contraband).
    If a defendant is not in exclusive possession of the place where the illegal
    drugs are found, then additional independent facts and circumstances must link the
    defendant to the contraband in such a way that it can be concluded that he had
    knowledge of the contraband and exercised control over it. See Batiste v. State,
    
    217 S.W.3d 74
    , 79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Roberson v.
    State, 
    80 S.W.3d 730
    , 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Such
    linkage generates a reasonable inference that the defendant knew of the contraband
    and exercised control over it. See Roberson, 
    80 S.W.3d at 735
    . Proof of a link
    between the defendant and the illegal drugs is needed primarily to establish
    knowledge or intent. 
    Id.
     It is not sufficient to show the defendant was merely
    present in the vicinity of the contraband. Batiste, 
    217 S.W.3d at 80
    . Whether this
    evidence is direct or circumstantial, it must establish, to the requisite level of
    confidence, that the defendant’s connection with the drug was more than
    fortuitous. Poindexter, 
    153 S.W.3d at
    405–06.
    Possible links include, but are not limited to, the following: (1) whether the
    defendant was present when the search was conducted; (2) whether the contraband
    8
    was in plain view; (3) whether the defendant was in close proximity to and had
    access to the contraband; (4) whether the defendant was under the influence of
    narcotics when arrested; (5) whether the defendant possessed other contraband or
    narcotics when arrested; (6) whether the defendant made incriminating statements
    when arrested; (7) whether the accused attempted to flee; (8) whether the
    defendant made furtive gestures; (9) whether there was an odor of contraband; (10)
    whether other contraband or drug paraphernalia was present; (11) whether the
    defendant owned or had the right to possess the place where the drugs were found;
    (12) whether the place where the drugs were found was enclosed; (13) whether the
    defendant was found with a large amount of cash; and (14) whether the conduct of
    the defendant indicated a consciousness of guilt. Evans, 
    202 S.W.3d at
    162 n.12;
    Lair v. State, 
    265 S.W.3d 580
    , 600 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
    In deciding whether the evidence is sufficient to link a defendant to
    contraband, the fact finder is the exclusive judge of the credibility of the witnesses
    and the weight to be given to their testimony. Poindexter, 
    153 S.W.3d at 406
    . The
    link between the defendant and the contraband need not be so strong that it
    excludes every other outstanding reasonable hypothesis except the defendant’s
    guilt. Brown v. State, 
    911 S.W.2d 744
    , 747 (Tex. Crim. App. 1995).
    No formula of facts exists to dictate a finding of links sufficient to support
    an inference of knowing possession. See Taylor v. State, 
    106 S.W.3d 827
    , 831
    9
    (Tex. App.—Dallas 2003, no pet.). A factor that is of little or no value in one case
    may be the turning point in another. See Nhem v. State, 
    129 S.W.3d 696
    , 699 (Tex.
    App.—Houston [1st Dist.] 2004, no pet.).           When determining whether the
    defendant knew that he possessed contraband, the jury is allowed to infer the
    defendant’s knowledge from his acts, conduct, remarks, and from the surrounding
    circumstances. See Krause v. State, 
    243 S.W.3d 95
    , 111 (Tex. App.—Houston [1st
    Dist.] 2007, pet. ref’d). In sum, it is the logical force of the evidence, and not the
    number of links, that supports a fact finder’s verdict. Evans, 
    202 S.W.3d at 166
    .
    With these principles in mind, we turn to Appellant’s arguments and the
    evidence in the record.
    C.    Analysis
    To support his sufficiency challenge, Appellant cites a lack of direct proof
    that he knowingly or intentionally possessed the PCP. He points out that he was
    not present when the PCP was found in the car. Appellant acknowledges that he
    was driving the car, but asserts that the evidence did not show knowledge or
    awareness because the PCP was “found inside of a small pill bottle that itself was
    inside of another larger container that itself was then found stuffed down into the
    seat and center console of the vehicle the Appellant had been driving.”
    Appellant correctly points out that mere presence in the same place as the
    controlled substance alone is not sufficient to justify a finding of possession. See
    10
    Evans, 
    202 S.W.3d at
    161–62; Harrison v. State, 
    555 S.W.2d 736
    , 737 (Tex. Crim.
    App. 1977). Nonetheless, Appellant’s analysis does not appropriately view the
    evidence in the light most favorable to the verdict and improperly discounts
    significant evidence, linking him to the PCP. We also note that the absence of
    various affirmative links does not constitute evidence of innocence to be weighed
    against the affirmative links that are present. James v. State, 
    264 S.W.3d 215
    , 219
    (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
    Although he was not present when the deputies found the PCP, Appellant
    had been driving the car and was its sole occupant. This linked appellant to the
    PCP. See Ly v. State, 
    273 S.W.3d 778
    , 782 (Tex. App.—Houston [14th Dist.]
    2008, pet, ref’d) (considering appellant’s possession and ownership of vehicle as
    link to illegal drugs recovered from console); see also Stout v. State, 
    426 S.W.3d 214
     (Tex. App.—Houston [1st Dist.] 2012, no pet.) (relying, in part, on appellant’s
    status as driver of vehicle to link him to firearm concealed behind radio’s
    faceplate). In addition, the PCP was accessible to Appellant because it was located
    under an armrest in a console next to the driver’s seat. See Ly, 
    273 S.W.3d at 782
    (determining that cocaine was accessible to appellant because it was located in
    center console next to driver’s seat); see also Robinson v. State, 
    174 S.W.3d 320
    ,
    326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (determining that contraband
    was “conveniently accessible” to defendant when it was “within the close vicinity
    11
    of the accused and easily accessible while in the vehicle so as to suggest that the
    accused had knowledge of the contraband and exercised control over it.”).
    Several other factors also affirmatively linked Appellant to the PCP. These
    factors included: (1) the presence of other contraband, that is, what Deputy
    Gutierrez testified was marihuana in Appellant’s vehicle; (2) Appellant’s flight
    from the deputies both in his vehicle and then on foot; (3) Appellant’s act of
    throwing the baggies out of the vehicle as he fled, indicating a consciousness of
    guilt; and (4) the center console, where the PCP was found, was an enclosed place.
    See Ly, 
    273 S.W.3d at 782
     (determining, among other factors, that console where
    cocaine was found to be an enclosed space).
    The circumstantial evidence outlined above, when viewed in combination,
    constitutes ample evidence connecting appellant to the actual care, custody,
    control, or management of the PCP such that a jury could have reasonably inferred
    that Appellant knowingly possessed it. See Evans, 
    202 S.W.3d at 166
    . Although
    Appellant cites link factors on which the State presented no evidence, as well as
    evidence that weighs in his favor, “[i]t is the logical force of the circumstantial
    evidence, not the number of links, that supports a jury’s verdict.” See 
    id.
     Viewing
    the evidence in a light most favorable to the verdict, we conclude that a rational
    fact finder could have found beyond a reasonable doubt that Appellant knowingly
    possessed the PCP. See Ly, 
    273 S.W.3d at 782
    .
    12
    We overrule Appellant’s first and second issues.
    Reading of Enhancement Paragraphs and Taking of Plea
    In his third issue in each appeal, Appellant asserts that the trial court erred
    because it did not read the allegations in the two enhancement paragraphs and
    receive a plea to these allegations before assessing his punishment.
    Appellant relies on Code of Criminal Procedure article 36.01(a)(1), which
    provides as follows:
    (a) A jury being impaneled in any criminal action, except as provided
    by Subsection (b) of this article, the cause shall proceed in the
    following order:
    1.     The indictment or information shall be read to the jury
    by the attorney prosecuting. When prior convictions are alleged
    for purposes of enhancement only and are not jurisdictional,
    that portion of the indictment . . . reciting such convictions shall
    not be read until the hearing on punishment is held . . . .
    TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon 2007).
    The Court of Criminal Appeals has long held that the reading of the charging
    instrument is mandatory. Warren v. State, 
    693 S.W.2d 414
    , 415 (Tex. Crim. App.
    1985). It serves to inform the accused of the charges against him and to inform the
    jury of the charges against the accused. 
    Id.
    Article 36.01 applies to the punishment phase of a bifurcated trial. 
    Id.
     at
    415–16. Enhancement paragraphs must be read, and the defendant’s plea to the
    enhancement allegations must be entered during the punishment phase of the trial
    13
    when a jury assesses punishment. See Ex parte Sewell, 
    742 S.W.2d 393
    , 395 (Tex.
    Crim. App. 1987); see also Reed v. State, 
    500 S.W.2d 497
    , 499 (Tex. Crim. App.
    1973) (“There can be no question but that the enhancement portion of the
    indictment should be read to the jury if the punishment is to be assessed by the jury
    in light of Article 36.01(1).”).
    Here, however, the jury did not assess punishment. Appellant elected to
    have the trial court assess punishment. The Court of Criminal Appeals has also
    held that, when the punishment phase of the trial is held before the trial court, the
    Code of Criminal Procedure does not require the reading of the enhancement
    paragraphs and the receipt of the defendant’s plea to the enhancement paragraphs.
    See Reed, 
    500 S.W.2d at 499
    ; see also Davis v. State, 
    970 S.W.2d 747
    , 749 (Tex.
    App.—Houston [14th Dist.] 1998, no pet.) (“[Article 36.01] does not support
    Davis’ argument that the trial court erred by failing to read the indictment before
    the punishment hearing because this article concerns the procedure for trial before
    a jury.”); Garner v. State, 
    858 S.W.2d 656
    , 659 (Tex. App.—Fort Worth 1993, pet.
    ref’d) (“[T]here is no requirement that the enhancement paragraphs be orally read
    to the defendant when punishment is assessed by the trial court alone.”); Simms v.
    State, 
    848 S.W.2d 754
    , 755 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)
    (“Appellant had the trial judge assess punishment; therefore, it was not necessary
    14
    for the State to read the enhancement paragraphs, and appellant did not have to
    plead to them.”).
    When the trial court assesses punishment, a defendant is not required to state
    an oral plea to enhancement paragraphs on the record if he has previously
    stipulated to the allegations in the enhancement paragraphs. Garner, 858 S.W.2d
    at 659; see also Reed, 
    500 S.W.2d at 499
     (“At the hearing on punishment, while
    represented by retained counsel, appellant stipulated to the truthfulness of the
    enhancement portion of the indictment. It would be difficult to say that he was
    misled as to that with which he was charged.”); Davis, 970 S.W.2d at 749
    (“Having stipulated to the truthfulness of these [enhancement] paragraphs, he
    cannot be heard to complain that he did not know the charges against him.”).
    Here, after the jury found Appellant guilty of the offenses of evading arrest
    and possession of a controlled substance, the trial court assessed Appellant’s
    punishment. 3 The trial court did not read the two enhancement paragraphs in the
    indictments at the beginning of the punishment hearing.             Rather, the State
    introduced, and the trial court admitted, Appellant’s written stipulation of his 23
    3
    We note that Appellant never objected to the trial court’s failure to read the
    enhancement paragraphs and to receive his plea to the enhancement paragraphs.
    See Reed v. State, 
    500 S.W.2d 497
    , 499 (Tex. Crim. App. 1973) (“It would also
    appear that appellant may not raise the question for the first time on appeal. Had
    there been an objection, the problem could have been easily remedied by
    reintroducing the evidence, if any had been offered after the enhancement
    allegations of the indictment had been read, and the appellant’s plea thereto
    entered.”).
    15
    prior convictions and the corresponding judgments and sentences. Among these,
    Appellant stipulated that he had committed the two felonies alleged in the
    enhancement paragraphs of the indictments. The trial court cautioned Appellant,
    “You understand that by stipulating to this evidence, you’re giving up your right to
    require the State to prove it?”       Appellant responded affirmatively that he
    understood.
    Additionally, during his closing argument, defense counsel remarked, “[W]e
    know that [punishment] starts at 25 years.” Appellant requested the trial court to
    assess the minimum sentence of 25 years in prison. By these statements, Appellant
    acknowledged that he was aware of the two enhancement allegations in the
    indictments. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2011) (providing
    range of punishment between 25 and 99 years for felony conviction enhanced by
    two prior felony convictions). The trial court sentenced Appellant to 30 years in
    prison for each offense to run concurrently. After pronouncing the sentence, the
    trial court clarified on the record that it had found both enhancement paragraphs to
    be true.
    A review of the record shows that, although it did not read the enhancement
    paragraphs to Appellant before assessing punishment, the trial court admitted
    Appellant’s stipulation that he had committed the prior offenses alleged in the
    enhancement paragraphs, received verbal confirmation from Appellant that he was
    16
    aware of the consequences of the stipulation, and stated on the record that it found
    the allegations in the enhancement paragraphs to be true. In addition, the record
    shows that Appellant was aware of the enhancement paragraphs by his
    acknowledgment of the minimum sentences he could receive.
    We conclude that, because it assessed punishment, the trial court was not
    required to read the allegations in the enhancement paragraphs to Appellant. See
    Reed, 
    500 S.W.2d at
    499–500; see also Seeker v. State, 
    186 S.W.3d 36
    , 39 (Tex.
    App.—Houston [1st Dist.] 2005, pet. ref’d) (“When the trial court alone assesses a
    defendant’s punishment, the court is not required to read . . . the enhancement
    paragraphs or the findings to the defendant.”); Davis, 970 S.W.2d at 749; Garner,
    858 S.W.2d at 659. Thus, we hold that the trial court did not err when it did not
    read the enhancement paragraphs and receive a plea from Appellant regarding the
    enhancement allegations.
    As to each appeal, we overrule Appellant’s third issue.
    Allen Charge4
    4
    In Allen, the United States Supreme Court approved the use of supplemental jury
    instructions to encourage a deadlocked jury to continue deliberating in order to
    reach a verdict if the jurors could do so without violating their consciences. See
    Allen, 
    164 U.S. at 501
    , 
    17 S. Ct. at 157
    . The Texas Court of Criminal Appeals has
    defined an Allen charge as a “supplemental charge sometimes given to a jury that
    declares itself deadlocked.” Barnett v. State, 
    189 S.W.3d 272
    , 277 n.13 (Tex.
    Crim. App. 2006). The supplemental charge “reminds the jury that if it is unable
    to reach a verdict, a mistrial will result, the case will still be pending, and there is
    no guarantee that a second jury would find the issue any easier to resolve.” 
    Id.
    17
    In his fourth issue, Appellant complains that the Allen charge, given with
    respect to the possession offense, was “unduly coercive and had the net effect of
    coercing the jury into arriving at a guilty verdict without the opportunity for free,
    fair and full jury deliberations.” As pointed out by the State, the record does not
    reflect that Appellant objected to the Allen charge in any respect.
    To preserve error concerning the submission of an Allen charge, the
    defendant must object to the submission of the supplemental charge. See Thomas
    v. State, 
    312 S.W.3d 732
    , 740 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
    (“There is no evidence in the record that appellant objected to the submission of
    this [Allen] charge. Appellant has, therefore, waived any error with respect to the
    trial court’s decision to deliver the Allen charge.”); see also TEX. R. APP. P.
    33.1(a)(1)(A) (providing that, to preserve error, complaining party must make
    complaint to trial court by timely request, objection, or motion that states grounds
    for ruling sought with sufficient specificity to make trial court aware of complaint).
    Because he did not object to the submission of the Allen charge, Appellant failed to
    preserve for appellate review his complaint that the Allen charge was unduly
    coercive. See Thomas, 
    312 S.W.3d at 740
    .
    We overrule Appellant’s fourth issue.
    18
    Conclusion
    We affirm the judgments of the trial court.
    Laura Carter Higley
    Justice
    Panel consists of Justices Jennings, Higley, and Huddle.
    Do not publish. TEX. R. APP. P. 47.2(b).
    19