Nolan Turner v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00050-CR
NOLAN TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Bowie County, Texas
Trial Court No. 17F0520-005
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
A Bowie County jury found Nolan Turner guilty of continuous sexual abuse of a young
child, Kathy Smith,1 and assessed a sentence of thirty years’ imprisonment. See TEX. PENAL
CODE ANN. § 21.01. On appeal, Turner argues that the trial court erred in excluding expert
testimony on the lack of medical evidence to support the allegations, commented on the weight
of the evidence by supplementing an Article 38.07 instruction, and used an impermissibly
coercive Allen2 charge. Turner also argues that the bill of costs erroneously included $500.00 in
fees “when applicable.”
While we conclude that (1) there was no abuse of discretion in the exclusion of expert
testimony, (2) Turner was not egregiously harmed by any comment on the weight of the
evidence, and (3) the Allen charge was not impermissibly coercive, (4) we modify the bill of
costs to reflect the imposition of $634.00 in court costs in the judgment, delete the remaining
cost from the bill of costs, and affirm the trial court’s judgment.
At trial, thirteen-year-old Kathy testified that she was routinely abused when she was in
the third grade by Turner, who watched her and her brother after school. Kathy testified that the
first time Turner made her do “uncomfortable stuff” was when he took her hand and placed it on
his privates underneath his clothes. Although her brother was also in the room, Kathy testified
that he was on a computer facing the other way.
1
We use pseudonyms for the victim and her family to protect the identity of the child. See TEX. R. APP. P.
9.10(a)(3).
2
See Allen v. United States, 164 U.S. 492, 501 (1896).
2
According to Kathy, the abuse became worse. Kathy told the jury that Turner touched
her hand to his penis several times on different occasions and did something inappropriate
“[p]retty much everyday after school.” Kathy said that Turner touched his private to her private
underneath a blanket, put his private in her private and in her “bootie,” grabbed her private and
“like stretch[ed] it out and stuff,” and “st[u]ck his finger in the hole of [her] private and” moved
it back and forth. Kathy also said Turner would suck on her chest and neck, leaving marks on
her body. According to Kathy, her mother saw one of the marks, but Turner claimed it was a
bug bite. Kathy testified that she was afraid to tell her mother of Turner’s abuse. The abuse
ended after eleven-year-old Kathy told her mother, Susan, that she had “bumps on [her] heinie
and it hurt[] really bad.”
When Susan investigated Kathy’s privates she saw “little red bumps” that raised a “red
flag . . . that maybe somebody had been messing with [Kathy].” When asked by Susan if
someone had sexually abused her, Kathy told Susan that Turner had touched her “down on [her]
heinie” and had “put his privates to [her] heinie.” The allegation reminded Susan that she had
seen bruising on Kathy’s neck one time when picking the child up from Turner’s house, joked
with Turner that the bruise looked like a hickey, and was told by Turner that the child was bitten
by a bug.3 Susan and her husband, Richard, called the police and met with investigators.
Chris Sutherland, an investigator with the Bowie County Sheriff’s Office, said that Kathy
reported that Turner had put his penis in her vagina many times. Susan had also told police that
3
During cross-examination, Susan testified that Kathy’s grades and extracurricular activities never changed, that her
son never saw or heard any sexual abuse by Turner, and that, aside from one mark on Kathy’s neck, she never saw
bleeding, bruising, cuts, or other signs of sexual abuse on Kathy, who often did not let her mother see her body.
Susan also testified that a civil lawsuit was filed against Turner as a result of the allegations.
3
Kathy said she was “touched in the vagina with [Turner’s] hands and penis.” Kathy was sent to
the Texarkana Children’s Advocacy Center (CAC) to speak with Jessica Kelley, a forensic
interviewer. Kelley testified that Kathy made allegations of abuse during her interview; provided
many sensory details of the sexual abuse, including that Turner had put his private into her
privates and bootie; and was consistent in the core details she had provided.
Kathy was taken to a sexual assault nurse examiner (SANE), Brandi Wilson, who heard
and recorded Kathy’s disclosure of sexual abuse by Turner. According to Wilson, Kathy said,
[Turner] sexually abused me. He put his private in my front private and my back
part. He kissed my neck and sucked my chest area. He’s done it since I was in
the third or fourth grade. After he does it he tells me I can have whatever I want.
He never gives me anything, but I don’t ask. He always is like you need to tell
me what you like so I can do it to you more. I never say anything because I don’t
like it. I remember when he first started I was sitting in a recliner. He picked me
up on the chair and put me in his lap. He pulled his private out and made me
touch it. . . . I remember one time he stuck his fingers all the way in me and it
hurt.
Because Kathy did not indicate that any abuse had occurred within ninety-six hours before the
SANE examination, Wilson did not use a rape kit to collect DNA evidence, a decision which
Kathy Lach, another SANE, testified was in accordance with normal practices. Wilson testified
that Kathy had “some dried, circular, red lesions” on her vagina, but clarified that blood tests
ruled out the possibility of any sexually transmitted diseases. Wilson said that the physical
examination was normal and that there was no medical evidence of any sexual assault.
However, she added that she rarely found injuries during her SANE examination and that sexual
assaults do not always leave signs of trauma or injury.
4
Sutherland and Robbie McCarver, supervisor of the Criminal Investigation Division of
the Bowie County Sheriff’s Office, interviewed Turner about the allegations. They both testified
that Turner denied the allegations and that they did not collect any DNA evidence or other
physical evidence of sexual assault. However, they were both struck by Turner’s lack of
emotion and calm demeanor during the interview, which was shown to the jury. Turner’s ex-
wife, who divorced Turner after hearing about Kathy’s allegations, also said that she did not see
the type of reaction from Turner that she expected. She testified that, other than one incident
when she found Kathy on Turner’s lap under a blanket, she saw nothing unusual between them.
After hearing this evidence, the jury convicted Turner of continuous sexual abuse of
Kathy.
(1) There Was No Abuse of Discretion in the Exclusion of Expert Testimony
After the State rested its case-in-chief, Turner attempted to call Dr. Jack McCubbin, a
retired gynecologist, as an expert witness. The State objected and asked to take McCubbin on
voir dire because it did not know the substance of his testimony. Outside of the jury’s presence,
McCubbin informed the trial court that he wished to testify that there was no medical evidence of
sexual assault or a diagnosis of a sexually transmitted disease. Because Wilson, Sutherland,
McCarver, and Lach had all testified to the same, the State objected that McCubbin’s testimony
was irrelevant and cumulative. Since it was uncontested that there was no medical evidence of
sexual assault and that Kathy did not have a sexually transmitted disease, the trial court sustained
the State’s objection because it found McCubbin’s testimony cumulative. In his first point of
5
error on appeal, Turner argues that the exclusion of McCubbin’s testimony was erroneous. We
disagree.
“We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.” Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d)
(citing Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion
occurs only if the decision is ‘so clearly wrong as to lie outside the zone within which reasonable
people might disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
2008) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh’g))). “We may not substitute our own decision for that of the trial court.” Id. (citing Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if
it was correct on any theory of law applicable to the case.” Id. (citing De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009)).
While Turner argues that McCubbin’s testimony was relevant, his brief does not
adequately address the trial court’s ruling that the testimony was cumulative. A trial court is
“well within its discretion to exclude . . . proffered evidence under Rule 403 because it [is]
cumulative of” other evidence. Buntion v. State, 482 S.W.3d 58, 81 (Tex. Crim. App. 2016)
(citing TEX. R. EVID. 403); see Blalock v. State, 728 S.W.2d 135, 137 (Tex. App.—Houston
[14th Dist.] 1987, pet. ref’d) (“If the import of improperly excluded evidence is conveyed to the
trier of fact through other evidence, no error is shown.”) (citing Geders v. United States, 425
U.S. 80, 87 (1976)).
6
Moreover, when evaluating harm from the erroneous exclusion of evidence, we “need
only determine whether or not the error affected a substantial right of the defendant.” Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); see TEX. R. APP. P. 44.2(b). Substantial
rights are not affected by the erroneous admission or exclusion of evidence “if the appellate
court, after examining the record as a whole, has fair assurance that the error did not influence
the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002). Because several witnesses had already testified to the substance of McCubbin’s
testimony, Turner failed to show that he was harmed by its exclusion. Anderson v. State, 717
S.W.2d 622, 628 (Tex. Crim. App. 1986) (to show harm, excluded evidence must be controlling
on material issue and not cumulative of other evidence).
We overrule this point of error.
(2) Turner Was Not Egregiously Harmed by Any Comment on the Weight of the Evidence
A conviction for continuous sexual assault of a child “is supportable on the
uncorroborated testimony of the victim of the sexual offense.” TEX. CODE CRIM. PROC. ANN. art.
38.07(a). During deliberations, the jury sent a note to the trial court asking, “What is the one
witness rule, explain.” In response to the jury’s question, the trial court provided a supplemental
charge stating, “A conviction for Continuous Sexual Abuse of a Child is supportable on the
uncorroborated testimony of the complainant of the sexual offense, if believed beyond a
reasonable doubt.” On appeal, Turner argues that the trial court’s response commented on the
weight of the evidence because it drew attention to Kathy’s testimony and its submission was not
supported by law.
7
“We employ a two-step process in our review of alleged jury charge error.” Murrieta v.
State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and
then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32)).
“A trial court’s substantive answer to a jury question during deliberations is considered
an additional or supplemental instruction to the jury that is governed by the requirements of
article 36.14 of the Code of Criminal Procedure.” Hernandez v. State, 340 S.W.3d 55, 60 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (citing Daniell v. State, 848 S.W.2d 145, 147 (Tex.
Crim. App. 1993)). Pursuant to Article 36.14, a trial court must submit a “written charge
distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight
of the evidence, not summing up the testimony, discussing the facts or using any argument in his
charge calculated to arouse the sympathy or excite the passions of the jury.” TEX. CODE CRIM.
PROC. ANN. art. 36.14.
“A trial court comments on the weight of the evidence if the charge ‘assumes the truth of
a controverted issue,’ Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986), or ‘directs
undue attention’ to particular evidence,” Giesberg v. State, 945 S.W.2d 120, 124 (Tex. App.—
Houston [1st Dist.] 1996) (citing Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983),
aff’d, 984 S.W.2d 245 (Tex. Crim. App. 1998)); Lacaze v. State, 346 S.W.3d 113, 118 (Tex.
App—Houston [14th Dist.] 2011, pet. ref’d). “An instruction, albeit facially neutral and legally
8
accurate, may nevertheless constitute an improper comment on the weight of the evidence.”
Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012). Even where an instruction does
not ‘“pluck out’ any specific piece of evidence for special attention,” it may constitute a
comment on the weight of the evidence if it “improperly focus[ed] the jury on the type of
evidence that would support a finding” sought by the State. Id.In the context of the one-witness-rule instruction, our sister courts have concluded that
use of the term “victim” in the instruction assumes the truth of the State’s allegation and,
therefore, constitutes an impermissible comment on the weight of the evidence. Hernandez, 340
S.W.3d at 61; Veteto v. State, 8 S.W.3d 805, 817 (Tex. App.—Waco 2000, pet. ref’d), abrogated
on other grounds by State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008). Here, the trial
court’s instruction referred to the “complainant,” not the victim.
Even so, our sister courts have found that a one-witness-rule instruction that does not
assume the truth of the State’s allegation still constitutes a comment on the weight of the
evidence because it draws the jury’s attention to particular evidence. Jimenez v. State, No. 13-
13-00066-CR, 2016 WL 6804454, at *3 (Tex. App.—Corpus Christi Nov. 17, 2016, pet. ref’d)
(mem. op., not designated for publication) (also finding there was no authority to include the
instruction, which “routinely converts to a question during jury selection to determine whether
prospective jurors are challengeable for cause” in the jury charge on guilt/innocence) (citing
Lemasters v. State, 297 S.W.2d 170, 171–72 (Tex. Crim. App. 1956) (holding that the trial court
improperly commented on the weight of the evidence by instructing the jury that a person may
be convicted of keeping a policy game based on the uncorroborated testimony of an
9
accomplice—even when a statute authorized the defendant’s conviction based on such
testimony, stating: “[the statute] was passed for the guidance of trial and appellate courts in
passing on the sufficiency of the evidence[,] but . . . the Legislature did not intend that the jury
be instructed in accordance with the terms thereof”)); Wesbrooks v. State, No. 05-09-00093-CR,
2010 WL 3222184, at *2 (Tex. App.—Dallas Aug. 17, 2010, pet. ref’d) (mem. op., not
designated for publication) (finding that a one-witness-rule instruction constituted a comment on
the weight of the evidence because it “singled out the complaining witness’s testimony”); Veteto,
8 S.W.3d at 817 (same); Hernandez v. State, No. 03-03-00758-CR, 2004 WL 2110396, at *5
(Tex. App.—Austin Sept. 23, 2004, no pet.) (mem. op., not designated for publication) (same).4
Assuming error in the submission of the supplemental one-witness-rule instruction, we turn to
the issue of harm.
“The level of harm necessary to require reversal due to jury charge error is dependent on
whether the appellant properly objected to the error.” Murrieta, 578 S.W.3d at 555 (citing
Abdnor, 871 S.W.2d at 732). When the trial court informed Turner of the jury’s request for an
explanation of the one-witness rule, Turner urged the court to respond with a note stating it could
not answer the question and argued that the Legislature did not intend for the rule to be a part of
the jury instructions. Yet, Turner did not argue that submission of the supplemental charge
would constitute a comment on the weight of the evidence or that it would do so because it
4
“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
10
would draw the jury’s attention to Kathy’s testimony.5 As a result, we will not reverse the
judgment “unless the record shows the error resulted in egregious harm, Ngo v. State, 175
S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984) (op. on reh’g)), such that he did not receive a fair and impartial trial.”
Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—
Texarkana 2008, no pet.)).
“Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory.” Id. (quoting Stuhler v.
State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “In making this determination, we review
‘the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant
information in the record as a whole.’” Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106
(Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing Almanza, 686 S.W.2d at 171)).
“Direct evidence of harm is not required to establish egregious harm.” Id. (citing Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
Turner focuses on the one-witness-rule instruction and argues that he was harmed
because it focused the jury’s attention on Kathy’s testimony. Also, even though the one-witness
rule was included as a supplemental instruction, it was a correct statement of the law. See
5
Turner also argued that if the trial court was inclined to submit the instruction, it could submit an instruction saying
“that a jury can convict someone based on the testimony of only one witness as long as the jury believes that witness
beyond a reasonable doubt.” Citing Turner’s proposed language for the instruction and cases requiring that the
defendant detail the specific grounds for why an instruction constitutes a comment on the weight of the evidence
because a general objection is insufficient to preserve error, the State argues that Turner waived the issue for appeal.
Harrington v. State, 424 S.W.2d 237 (Tex. Crim. App. 1968); Andrews v. State, 774 S.W.2d 809, 811–12 (Tex.
App.—Eastland 1989, pet. ref’d). We disagree. Because failure to properly object merely impacts the harm
analysis when considering jury-charge error, we conclude that Turner’s lack of a proper and specific objection
merely results in an evaluation for egregious harm.
11
Aschbacher v. State, 61 S.W.3d 532, 538 (Tex. App.—San Antonio 2001, pet. ref’d) (observing
that, “[g]enerally, ‘a correct statement of the law by the trial court, even during trial, is not
reversible’ as a comment on the weight of the evidence”) (quoting Powers v. State, 737 S.W.2d
53, 54 (Tex. App.—San Antonio 1987, pet. ref’d)). As a result, Turner cannot show that the
instruction was reasonably calculated to benefit the State or to prejudice his rights to a fair trial.
See id.Also, “[t]he trial court’s response to the jury’s question must be reviewed in the context
of the entirety of the court’s charge.” Hernandez, 340 S.W.3d at 63. The jury charge on
guilt/innocence contained no other errors, properly instructed the jury on the presumption of
innocence and the State’s burden of proof, and reminded the jurors that they were “the exclusive
judges of the facts proved, the credibility of the witnesses, and the weight to be given their
testimony” and could “believe all, any part, or none of the testimony of any witness.” These
instructions “ensured that the jury understood that [Turner] could not be convicted unless the
State presented credible testimony, whether through one or more witnesses, establishing each
and every element of the crime beyond a reasonable doubt.” Jimenez, 2016 WL 6804454, at *4.
We further note that the instruction was not included in the application portion of the jury
charge, which authorizes the jury to act. Id. (citing Hutch v. State, 922 S.W.2d 166, 172 (Tex.
Crim. App. 1996) (observing that charge error appearing in the application portion of a jury
charge is especially egregious because, in contrast to the abstract portion, the application portion
of the jury charge is the section that actually authorizes the jury to act)); see Hernandez, 340
S.W.3d at 63. Viewing the charge in its entirety, we find that the supplemental one-witness-rule
12
instruction “did not override or contradict the other parts of the charge that correctly instructed
the jury as to the presumption of evidence and the burden to prove all elements of the charged
offenses beyond a reasonable doubt.” Hernandez, 340 S.W.3d at 63.
Turning to the state of the evidence, we disagree with Turner’s conclusion that it was
weak. In addition to Kathy’s detailed testimony, “[t]he State brought forth other witnesses and
circumstantial evidence that corroborated [Kathy’s] testimony” and mitigated any harm from the
supplemental instruction. Id. Susan testified that she had once witnessed what looked like a
hickey on Kathy’s neck while picking the child up from Turner’s house. Susan said Kathy told
her that Turner had touched her “down on [her] heinie” and had “put his privates to [her] heinie.”
Sutherland testified that Kathy reported that Turner had put his penis in her vagina many times
and that Susan said that Kathy told her she was “touched in the vagina with [Turner’s] hands and
penis.” Kelley, the CAC interviewer, testified that Kathy made allegations of abuse during her
interview, provided many sensory details of the sexual abuse, including that Turner had put his
private into her privates and bootie, and was consistent in the core details she had provided.
Wilson, the SANE nurse, recited the sexual abuse history Kathy disclosed to her during the
SANE examination, including Kathy’s statements that Turner had placed his penis in her vagina
and anus and his fingers in her vagina. Turner’s ex-wife testified that she had found Kathy on
Turner’s lap under a blanket. From these witnesses, the jury was able to determine the
consistency of Kathy’s allegations. Even though there was a lack of physical or medical
evidence supporting the allegations, we find that the state of the evidence strongly supported the
jury’s finding of guilt. See id. at 63.
13
Next, both the State and Turner discussed the one-witness rule during voir dire and
opening statements. While the State also discussed the one-witness rule in closing, it focused on
summarizing the evidence and emphasized that the jury had to believe beyond a reasonable
doubt that Turner committed continuous sexual abuse in order to convict. All of these arguments
“preceded the error identified by [Turner’s] appeal, which occurred after the presentation of all
evidence and the final arguments of counsel.” Id. at 64. Thus, “[t]here was no opportunity for
the State to present any argument capitalizing on or exacerbating the effect of the trial court’s”
comment on the weight of the evidence and, “[a]ccordingly, the arguments of counsel did not
cause the erroneous instruction to become egregious.” Id.After reviewing the entire record, we conclude that the supplemental one-witness-rule
instruction did not deprive Turner of a fair and impartial trial. The jury charge required the jury
to believe Kathy’s allegations beyond a reasonable doubt, did not lower the State’s burden of
proof, and contained an application paragraph that required the jury to find every element of the
offense proven beyond a reasonable doubt. The jury’s verdict of guilt was supported by Kathy’s
direct testimony, corroborating testimony of the State’s other witnesses, and circumstantial
evidence supporting Kathy’s credibility. No such error was exacerbated by arguments of
counsel, because it would have occurred after closing arguments. Because there was no
egregious harm, we overrule this point of error. See id. at 64–65.
14
(3) The Allen Charge Was Not Impermissibly Coercive
It is well settled that the length of time a jury deliberates is discretionary with the trial
court. TEX. CODE CRIM. PROC. ANN. art. 36.31; Montoya v. State, 810 S.W.2d 160, 166 (Tex.
Crim. App. 1989)). “An Allen charge is usually given in response to a specific request by the
jury for additional guidance when the jury is deadlocked.” Taylor v. State, 173 S.W.3d 851, 854
(Tex. App.—Texarkana 2005, no pet.) (citing West v. State, 121 S.W.3d 95, 107 (Tex. App.—
Fort Worth 2003, pet. ref’d)). “To prevail on a complaint that an Allen charge is coercive, an
accused must show that jury coercion or misconduct likely occurred or occurred in fact.” Id.“An Allen charge is unduly coercive and therefore improper if it pressures jurors into reaching a
particular verdict or improperly conveys the court’s opinion of the case.” Id. We examine the
Allen charge for coercive effect on juror deliberation “in its context and under all the
circumstances.” Lowenfield v. Phelps, 484 U.S. 231, 237 (1988).
The jury began deliberating at 11:00 a.m. but informed the trial court that it was not
unanimous. In response to the jury’s first note notifying the trial court that it could not come to a
unanimous verdict, the trial court instructed the jury, at 2:18 p.m., to continue its deliberations.
The jury sent another note asking, “Is there a way to have a juror dismissed if the other jurors
believe someone is not following the law?” At 3:21 p.m., the trial court responded, “The Court
cannot answer that question. Please continue to deliberate.” The jury responded by immediately
returning another note asking, “What can be done about a juror that says they believe some of
what the victim says then changes their mind about not believing anything the victim says when
asked to deliberate,” prompting the trial court’s response, “The Court cannot answer that
15
question. Please continue to deliberate.” The jury sent two more notes about Kathy’s testimony,
resulting in a portion of the testimony being read back to them, and another note asking for the
recorded interrogation, which the trial court provided. After 4:34 p.m., the jury sent its eighth
note, stating, “Hung 11-1,” which resulted in the trial court’s submission of an Allen charge.6
An Allen charge is coercive on its face if it amounts to a coercive attempt to force the
minority position to accede to the majority position, but “a charge that speaks to the jury as a
whole is not coercive on its face.” Freeman v. State, 115 S.W.3d 183, 187 (Tex. App.—
Texarkana 2003, pet. ref’d). The charge here “addresse[d] the jury as a whole and [did] not
single out any specific juror or jurors,” “simply encourage[d] the jury to reach a verdict and
ask[ed] the jurors to re-examine their views,” and reminded the jurors not to surrender
6
The trial court’s Allen charge read:
Your foreperson has advised the court that you are having difficulty reaching a
unanimous verdict.
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 this jury. The 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 empaneled in the same way this jury has been empaneled and will likely
hear the same evidence that 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.
It is your duty as a juror to keep your mind open and free to every reasonable argument that may
be presented by your fellow jurors so that this jury may arrive at a verdict that justly answers the
consciences of the individuals making up this jury.
You should not have any pride of opinion and should avoid hastily forming or expressing
an opinion. At the same time, you should not surrender any conscientious views founded on the
evidence unless convinced of your error by your fellow jurors.
With this additional instruction, you are requested 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. Do not do violence to your conscience, but continue deliberating.
16
conscientious views founded on the evidence or to do violence to their conscience. Id. at 187.
Turner does not argue that the language of the Allen charge is coercive on its face, and as in
Freeman, we find that it is not.
“If an Allen charge is not coercive on its face, an appellant has the burden to show that
jury misconduct occurred in fact.” Id. Turner argues that the Allen charge was impermissibly
suggestive because it caused the lone holdout to immediately cave in. This type of bare assertion
is insufficient to meet the requirement to show that jury coercion or misconduct likely occurred
or occurred in fact. Aguilar v. State, No. 02-18-00175-CR, 2018 WL 4140741, at *2 (Tex. App.
—Fort Worth Aug. 30, 2018, pet. ref’d) (mem. op., not designated for publication) (rejecting
defendant’s argument “that the jury ‘immediately’ returned a guilty verdict after receiving the
Allen charge, thus evidencing that the instruction had a coercive effect on the lone holdout
juror”). Moreover, the record does not support Turner’s argument.
The jury deliberated for several hours before reporting that it was “[h]ung 11-1.” In
Taylor, this Court found that an Allen charge worded like the one issued here was not
impermissibly suggestive, even though the jury had reported that it was split eleven to one.
Taylor, 173 S.W.3d at 855. In Taylor, the jury deliberated approximately two hours after
receiving the Allen charge. Here, the record does not indicate how long the jury deliberated after
receiving the Allen charge. As in Freeman, Turner presents no evidence of coercion caused by
the combined effect of the Allen charge and acceptance of a verdict. See Freeman, 115 S.W.3d
at 187. Instead, Turner “simply speculates that the combined effect of the two actions created
coercion.” Id. Under the circumstances presented in this case, we conclude that Turner “has not
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shown that jury coercion or misconduct likely occurred or occurred in fact.” Taylor, 173 S.W.3d
at 855; see Freeman, 115 S.W.3d at 187. Therefore, we overrule this point of error.
(4) We Modify the Bill of Costs
Turner also challenges the bill of costs. The trial court’s judgment assessed a total of
$634.00 in court costs. In addition to the uncontested court costs of $234.00, the clerk’s bill of
costs contained the following additional fees, “when applicable”: a $10.00 fee for taking and
approving bond, a $40.00 jury fee, a $100.00 emergency medical services fee, a $250.00 fee for
DNA testing, and a $100.00 fee for the child abuse prevention fund. Turner argues that, because
the bill of costs states that the fees apply only “when applicable,” all of these fees should be
deleted. The State concedes that the emergency services fee listed in the bill of costs is
unconstitutional and should be deleted from the bill of costs, but otherwise argues that the
remaining fees, which total $634.00, are supported by the record.7
When a criminal action is appealed, the Texas Code of Criminal Procedure provides that
“an officer of the court shall certify and sign a bill of costs stating the costs that have accrued and
send the bill of costs to the court to which the action or proceeding is . . . appealed.” TEX. CODE
CRIM. PROC. ANN. art. 103.006. Turner does not challenge the sufficiency of the evidence
supporting any assessment of court costs. Instead, he argues that none of the additional fees have
been imposed because they are listed under the heading “when applicable.” We disagree. The
trial court determined that all of the fees, except for the emergency services fee, were applicable
when it assessed $634.00 in court costs, and Turner does not challenge that finding. As a result,
7
See Casas v. State, 524 S.W.3d 921, 927 (Tex. App.—Fort Worth 2017, no pet.).
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we will affirm the court costs imposed in the judgment. However, because the bill of costs also
contains the emergency services fee, we modify the bill of costs by deleting that $100.00 fee.
We modify the bill of costs by deleting the $100.00 emergency services fee and by
conforming it with the recitation in the judgment that only $634.00 in court costs were imposed.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 13, 2020
Date Decided: November 25, 2020
Do Not Publish
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