Carlos Landrian v. State

Opinion issued May 29, 2009

  In The

Court of Appeals  

For The

First District of Texas  

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  NO. 01-05-00697-CR

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CARLOS LANDRIAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 998050

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MEMORANDUM OPINION

          A jury convicted appellant, Carlos Landrian, of aggravated assault and assessed punishment at seven years’ confinement in prison with a recommendation for community supervision. See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2008). The jury answered a separate special issue on the use or exhibition of a deadly weapon in the affirmative. The trial court suspended appellant’s sentence and assessed punishment at seven years’ community supervision.   

          Appellant appealed, raising six points of error. We reversed the conviction on appellant’s first point of error, holding that the trial court had erred by not requiring the jury to reach a unanimous verdict as to one of two paragraphs alleged in a one-count indictment, i.e., on whether appellant intentionally or knowingly caused bodily injury by using a bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing a bottle in the complainant’s direction. Landrian v. State, 263 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2007), rev’d, 268 S.W.3d 532 (Tex. Crim. App. 2008).  

          The State filed a petition for discretionary review, which was granted, and the Texas Court of Criminal Appeals reversed the judgment of this Court. See Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008). The Court of Criminal Appeals remanded the case to this Court to address appellant’s remaining points of error. Id. at 542.   

          We now determine (1) whether the evidence is legally sufficient to support the conviction and deadly weapon finding, (2) whether the evidence is factually sufficient to support the conviction, (3) whether the trial court erred by denying appellant’s request to reopen the case, (4) whether the trial court erred by denying appellant’s motion for new trial on grounds of newly discovered evidence, (5) whether the trial court erred in charging the jury, and (6) whether the trial court improperly coerced the jury.

           We affirm.      

Facts

          On December 19, 2003, appellant attended a company Christmas party at the Camino Real Apartments clubhouse. The complainant, Luis Brizuela, testified that he went to the party to pick up his cousin, who worked for the company. Sometime after arriving, the complainant went outside to the back of the clubhouse to answer his cell phone. After finishing his call, the complainant returned to the front of the clubhouse, where he saw Luis Miguel, a drunk “party-crasher,” lying on the ground, bleeding. Miguel and appellant had been fighting, according to witnesses, whose versions of the fight varied drastically. Although the complainant did not see the preceding fight, he later saw appellant come from inside the clubhouse and throw a bottle that injured the complainant. A piece of glass from the bottle lodged in the complainant’s eye.

          The complainant suffered a severe laceration of the cornea and sclera and significant trauma of the retina and other interior parts of the eye. The complainant’s eye had to be removed. Dr. Matthew Benz performed the initial surgery on the complainant’s eye. He thought that the injury was more consistent with an act of throwing a broken bottle into the eye than with a piece of glass flying into the eye after a bottle had been broken on someone else’s head. Dr. Benz said that for the piece of glass to penetrate the eye, “it would take a significant amount of force.”

           The day after the incident, Officer Bang Le of the Houston Police Department (“HPD”) met with the complainant at his home to complete an offense report. The complainant told Officer Le that the incident the day before had been “an accident” and that appellant had attempted to hit Miguel with the bottle, but had hit the complainant instead. Appellant was eventually arrested for the aggravated assault of the complainant.

          At trial, the State presented witnesses who testified that appellant had thrown a bottle and injured the complainant. However, the witnesses’ testimony differed about how appellant had thrown the bottle. The complainant testified that appellant had exited the front door of the clubhouse and had intentionally thrown an unbroken beer bottle directly at him, striking the complainant in the head and causing the glass to become lodged in his eye. Two HPD officers testified that the complainant’s original complaint stated that appellant had attempted to throw the bottle at Miguel, but had accidentally hit the complainant with the bottle. The State’s witness Hernan Martinez testified that appellant had exited the clubhouse with a beer bottle, which he had broken on the pavement, and then had thrown the bottle at the complainant. After Martinez made this statement, the State showed Martinez his original statement to police, in which he stated that appellant had thrown the bottle at Miguel, but had hit the complainant. Finally, State’s witness Piedad Salazar, then Martinez’s wife, testified that appellant had broken the bottle against a wall as he was reentering the clubhouse, then had turned around at the door and thrown the bottle, not aiming at anyone. She stated that the broken bottle had hit the complainant.   

          Appellant and his witnesses, which included Mardoqueo Lopez, appellant’s boss and the host of the party, and Gerardo Tapia, Lopez’s business partner, testified that appellant had gone outside the party to help clean up and that a group of men, including the complainant and Miguel, were outside the clubhouse, drinking. According to Lopez, the three men had been asked to leave the party about an hour earlier because they were drinking, causing problems, and two of them—including the complainant—had not even been invited. Appellant’s witnesses testified that Miguel had attacked appellant as appellant had exited the building. Appellant testified that he had hit Miguel in the head with a beer bottle in an attempt to ward off a second attack by Miguel. The bottle exploded on Miguel’s head, appellant stated, and some glass hit the complainant. Appellant further testified that he did not find out until the following day that the complainant had been injured by the broken glass.

Sufficiency of the Evidence

          In his sixth point of error, appellant argues that the evidence is legally and factually insufficient to support the jury’s verdict.   

A.      Legal sufficiency

            Appellant asserts three separate contentions of reversible error for legal insufficiency: (1) the State introduced “no evidence” that appellant “threw the bottle at [the complainant]”; (2) the State failed to “provide any evidence showing that [appellant] was not acting in self-defense”; and (3) the State offered “no evidence” that the beer bottle could have caused death or serious bodily injury.

          1.       Standard of review

          When evaluating the legal sufficiency of the evidence, a reviewing court must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). A reviewing court does not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses because these are the functions of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, the duty of this Court is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Adelman, 828 S.W.2d at 422. In doing so, we resolve any inconsistencies in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and “defer to the jury’s credibility and weight determinations,” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).   

          2.       Discussion

                    (a)     Evidence that bottle was thrown in regard to allegations in second paragraph

          Appellant asserts that the State presented no evidence proving that appellant threw the bottle directly at the complainant.

          The jury was authorized to convict appellant, under the second paragraph of the indictment, if appellant recklessly caused serious bodily injury to the complainant by throwing a bottle in the direction of the complainant. The record reveals that both the complainant and Martinez testified that appellant threw the bottle directly at the complainant. Viewing all the evidence in the record in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant recklessly caused serious bodily injury to the complainant by throwing a bottle in the direction of the complainant.   

                    (b)     Evidence that disproved defense of deadly force in defense of person in regard to allegations in first paragraph   

          Appellant also contends that the State failed to prove and that “the jury could not have found beyond a reasonable doubt that [appellant] was not acting in self-defense, which is a required element of the State’s case.” Because the trial court submitted the law of deadly force in defense of person only as a defense to the first paragraph of the indictment, which alleged intentional or knowing conduct, we construe appellant’s argument to be that the evidence is legally insufficient to support the jury’s implied finding against his defense of deadly force in defense of his person in regard to the allegations in the first paragraph of the indictment.  

          The jury was authorized under the charge to convict appellant of aggravated assault if each juror found either that: (1) appellant intentionally or knowingly caused bodily injury to the complainant by using a deadly weapon, namely, a bottle (as alleged in paragraph one), or that (2) appellant recklessly caused serious bodily injury to the complainant by throwing a bottle in complainant’s direction (as alleged in paragraph two). Landrian, 268 S.W.3d at 533, 539. Because the jury was authorized to convict appellant under alternate allegations, appellant’s conviction will be upheld if the evidence is legally sufficient to support either of the two alternate allegations under which conviction was authorized by the charge. See Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) (“It is well-settled that when a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted [to the jury,] the verdict will be upheld.”)

          Because we have already found that the evidence was legally sufficient to support appellant’s conviction under the allegations in the second paragraph of the indictment, we need not determine whether the evidence is legally sufficient to support his conviction under the allegations in the first paragraph of the indictment. We therefore need not address appellant’s complaint that the evidence is legally insufficient to support any implied jury finding against his defense of deadly force in defense of his person as to the first paragraph of the indictment.   See id. (“We must therefore determine whether there was sufficient evidence to support the finding of guilt based upon any one of the paragraph allegations which were submitted to the jury.”); Powell v. State, 112 S.W.3d 642, 646 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (declining to address sufficiency of evidence for one basis for conviction authorized by charge when appellate court had already determined evidence sufficient to support another basis for conviction authorized by charge) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).

                    (c)     Evidence that bottle was deadly weapon in regard to allegations in first paragraph and jury’s deadly weapon finding

          Finally, appellant contends that the State failed to show “any evidence” that the bottle was a deadly weapon.

          A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008). The State presented evidence that appellant intentionally threw the bottle directly at the complainant. Officer Le testified that a bottle thrown or slashed at another could cause death or serious bodily injury. The evidence further showed that the complainant lost his right eye as a result of the broken glass from the bottle. The complainant’s permanent loss of his right eye constitutes serious bodily injury. Id. § 1.07(a)(46) (Vernon Supp. 2008) (“‘Serious bodily injury’ means . . . protracted loss or impairment of the function of any bodily member or organ.”). Accordingly, viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that the bottle was capable of inflicting serious bodily injury and so was a deadly weapon.

          3.       Resolution

          Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found, beyond a reasonable doubt, that appellant was guilty of the offense of aggravated assault and that the bottle was a deadly weapon. We overrule appellant’s challenges to the legal sufficiency of the evidence, hold that the evidence is legally sufficient to support the conviction, and overrule the legal-sufficiency portion of appellant’s sixth point of error.

B.      Factual sufficiency  Appellant also argues that the evidence is factually insufficient to support his conviction. Appellant does not make a specific challenge regarding the factual sufficiency of any particular element of the offense, but merely states generally that the great weight and preponderance of the evidence contradicts the jury’s verdict. Appellant also does not cite this Court to any specific testimony or other evidence that he asserts contradicts the jury’s verdict, nor does he provide any argument or analysis as to why the evidence is insufficient under a factual sufficiency standard.

          Appellant has failed to brief this issue adequately on appeal and presents nothing for review. See Tex. R. App. P. 38.1(i); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). However, even assuming that appellant adequately presented his factual–sufficiency arguments, the evidence is factually sufficient to support his conviction.

          When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Id. at 11. Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before concluding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. 

          In conducting a factual-sufficiency review, we must be cognizant of the fact that a jury has already passed on the facts and avoid substituting our judgment for that of the jury. Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may choose to believe all, some, or none of the testimony presented. Id. at 707. We therefore afford almost complete deference to a jury’s determination when that decision is based on an evaluation of credibility. Id. at 705. In conducting a factual-sufficiency review, we also must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not find the evidence factually insufficient simply because we disagree with the verdict, but only because the verdict represents a manifest injustice. Watson, 204 S.W.3d at 414.

          There was divergent testimony presented at trial regarding appellant’s actions during the incident and the circumstances surrounding his actions. Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). Here, the jury, despite defense counsel’s extensive and thorough cross-examination, chose to believe the testimony of the State’s witnesses implicating appellant. It was within the province of the jury to weigh the evidence presented, to evaluate the credibility of the witnesses, to accept or to reject the theories presented to it, and we must afford almost complete deference to the jury’s decision when it is based on an evaluation of credibility. Lancon, 253 S.W.3d at 707. Reviewing the evidence in a neutral light, we hold that the jury verdict is not against the great weight and preponderance of the evidence. Therefore, we hold that the evidence is factually sufficient to support appellant’s conviction and overrule the remainder of appellant’s sixth point of error.

Request to Reopen Evidence   

          In his second point of error, appellant maintains that the trial court committed reversible error in denying his motion to reopen the evidence. After appellant had rested, but before closing arguments were made, he sought to call Rosa Jimenez, explaining to the court that Jimenez would testify that Salazar, who testified for the State in rebuttal, was inside the clubhouse dancing with Jimenez at the time of the fight and so was not outside, as Salazar had claimed in her testimony. The court denied the request without hearing any testimony. Appellant asked to put on the witness and to make a proffer of her evidence; the court declined his request to do so at that time, but indicated that he could do so after closing argument. After argument, outside the presence of the jury, Jimenez testified that she and Salazar had been dancing in the middle of the dance floor near Jimenez when someone said, “Close the door. Somebody is fighting.” Jimenez also testified that Salazar had commented to “several of us” on the dance floor that she was waiting on her then-husband, Martinez, to arrive at the party and that Martinez was not yet present at the time of the fight.   

A.      Standard of review and the law

          The decision to reopen a case is left to the sound discretion of the trial court. Kennerson v. State, 984 S.W.2d 705, 707 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Thus, we review the trial court’s decision not to reopen evidence under an abuse–of–discretion standard. See Thompson v. State, 480 S.W.2d 624, 629 (Tex. Crim. App. 1972). “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). The trial court commits error when it denies a motion to reopen the case in order to allow a witness to testify when the following criteria are satisfied: (1) the witness is present and ready to testify; (2) the motion to reopen is made before final arguments and before the charge is read to the jury; (3) the movant states with specificity what testimony the witness is expected to give and the importance that the testimony carries; and (4) it is not apparent that the motion’s purpose is to frustrate the due administration of justice. Scott v. State, 597 S.W.2d 755, 758 (Tex. Crim. App. 1979).  

          A “due administration of justice” means that the trial court should reopen the case if the evidence would materially change the case in the proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). The proffered evidence must be more than just relevant; it must actually make a difference in the case. Id. at 79. Among the factors to be considered in determining the materiality of evidence proffered in a request to reopen under article 36.02, are the weight of the evidence, its probative value, the issue upon which it is offered, and whether it is cumulative. See id. at 78–79 (noting that such factors were not to be considered under Vital v. State, 523 S.W.2d 662 (Tex. Crim. App. 1975) and overruling Vital); see also Birkholz v. State, 278 S.W.3d 463, 464 (Tex. App.—San Antonio 2009, no pet.) (holding that evidence must actually make difference in case and not be cumulative, citing Peek).   

          If we hold that a trial court has erred in not granting a motion to reopen, we must then conduct a harm analysis for non-constitutional error under Texas Rule of Appellate Procedure 44.2(b) and determine whether the error affected the appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Kennerson, 984 S.W.2d at 707; see also Reeves v. State, 113 S.W.3d 791, 794–95 (Tex. App.—Dallas 2003, no pet.) (discussing overlap between Peek materiality requirement and rule 44.2(b) review and conducting review under rule 44.2(b)). A substantial right is affected when the error has a substantial and injurious effect or influence in determining a jury’s verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In conducting a harm analysis under rule 44.2(b), we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the jury instructions given by the trial court, and the State’s theory and any defensive theories. Id. We may not overturn a conviction for non-constitutional error if we are assured that the error did not influence the jury or that it had but a slight effect. Id.   

B.      Discussion

          The parties do not dispute that appellant’s witness, Jimenez, was present and ready to testify when appellant moved to reopen the evidence and that such motion was timely. Appellant stated with specificity the testimony that Jimenez was expected to give. The sole question before this Court, then, is whether the trial court abused its discretion in determining that Jimenez’s testimony was not “necessary to a due administration of justice.”  

          Appellant contends that Jimenez’s testimony flatly contradicted the claimed eyewitness testimony from Martinez and Salazar, demonstrating that they were not present at the scene of the fight, and argues that such testimony would have had a substantial effect on the jury verdict. The State contends that Jimenez’s testimony would not have materially changed the case in appellant’s favor because the testimony was cumulative and did not directly contradict Martinez’s and Salazar’s testimony. The State argues that “merely because Piedad Salazar may have been with Jimenez inside the club when Jimenez heard about a fight does not necessarily establish that Piedad Salazar was not outside when appellant assaulted the complainant.”

          We review the record to determine whether the trial court abused its discretion in finding that Jimenez’s testimony, offered to impeach Salazar’s credibility regarding whether Salazar had witnessed the fight, would not have “materially change[d] the case in appellant’s favor.”

          During the State’s case, the complainant testified that Martinez and Salazar were standing behind him and to his right, with their infant son, when appellant threw the bottle at him. The complainant also testified that Martinez and Salazar came to his aid after he was injured. Martinez testified that he arrived at around 11:30 p.m and went “in and out” of the clubhouse to say hello to some people, spending a very short period of time inside. About five minutes after he had arrived, after he had gone back outside, the fight began. According to Martinez, his wife, Salazar, was outside holding the baby and saw everything that he saw. In response to inquiries from the State, Martinez explained that Salazar had not come to testify at trial the same day as he because she was taking care of the children, but he agreed to make arrangements for her to come to testify the following day.

          In the presentation of appellant’s case, Tapia testified that he had seen the fight and that Salazar was inside the clubhouse, not outside, during the fight. Another defense witness, and previous co-worker of appellant, Carlos Fuentes, testified that he had seen the fight, but had not seen a woman with a baby in the area where the fight took place. Appellant testified that he had not seen Martinez outside, though he remembered Fuentes and Tapia being present; he did not mention Salazar.

          During the State’s rebuttal case, Salazar testified that she had arrived at the party with a girlfriend at around 7:00 to 7:30 p.m. and that she and her children had eaten and then enjoyed the party for a while. Her husband had not arrived until between 11:00 and 11:30. After he had arrived, she went outside to talk to him because he wanted to take the children home and she wanted to stay at the party. While she was outside, she witnessed the fight.         

          Jimenez testified, for purposes of the appellate record, that she had been inside the clubhouse, dancing, when someone said, “Close the door. Somebody is fighting.” At that time, Salazar was also in the middle of the dance floor with her children, “to one side” of Jimenez. Jimenez said that she knew that Martinez was not present at the time of the fight because Salazar had been waiting for her husband to arrive and had commented on this fact to several people, explaining that he was at a meeting. According to Jimenez, Martinez had not arrived at the clubhouse at the time of the fight.   

          Initially, we observe that Jimenez’s sparse testimony did not provide a time frame for the statement that she heard, or for Salazar’s presence on the dance floor, nor did it actually establish that the fight that Jimenez referenced was the one at issue at trial. Jimenez’s testimony was not specific enough to establish that the acts that she described occurred at the time of the fight at issue or during the time period in which Salazar and Martinez testified that they had been outside. Jimenez did not testify that Salazar had remained on the dance floor after the statement was made nor did she state whether Salazar had gone outside afterwards, and if so, how much later. Jimenez also did not provide any testimony regarding what time she had seen Martinez arrive at the clubhouse relative to such statement or whether she had even seen him at all that evening. Jimenez’s scant testimony in the record establishes only that Salazar had been on the dance floor at the unspecified time that someone stated, “Close the door. Somebody is fighting[,]” and that, at that time, Jimenez had not seen Martinez arrive at the party where Salazar had been waiting for him.

          Jimenez’s proffered testimony would have allowed the jury to infer that Salazar was not outside at the inception of the fight at issue, and that Martinez had either not arrived at the party at the time of the fight or had not come inside the clubhouse first, as he had testified. However, it does not directly contradict Salazar’s testimony that she witnessed the fight or Martinez’s testimony that he witnessed the fight. Jimenez’s testimony would have simply corroborated the testimony of Tapia, Fuentes, and appellant that Martinez and Salazar were not present at the scene of the fight and corroborated Tapia’s testimony that Salazar was inside the clubhouse at the time of the fight. Jimenez’s testimony did not go directly to the issue of whether appellant acted intentionally, knowingly, or in self-defense or acted recklessly in reference to his actions with the bottle; rather, the proffered testimony would have merely provided an additional indirect, partial impeachment of Salazar and Martinez, which would have been cumulative and corroborative of more direct, complete, and significant evidence contradicting Salazar and Martinez that was already before the jury.

          Considering the entire record in this case, the weight of the evidence offered, its probative value, the issue upon which it was offered, and its cumulative nature, we conclude that the trial court did not abuse its discretion by implicitly ruling that Jimenez’s proffered testimony would not have “materially change[d] the case in appellant’s favor”—that is, would not have “actually make a difference in the case”— and we hold that it did not abuse its discretion in denying appellant’s request to reopen the evidence. See, e.g., Chalker v. State, No. 05-07-00570-CR, 2008 WL 3906405, at *2–3 (Tex. App.—Dallas, Aug. 26, 2008, pet. ref’d) (memo op., not designated for publication) (holding that when there was ample testimony to place appellant’s theory before the factfinder, additional evidence supporting theory was cumulative and would not have materially changed case in appellant’s favor); Ramirez v. State, No. 07-02-0345-CR, 2003 WL 22903974, at *2 (Tex. App.—Amarillo, Dec. 9, 2003, pet. ref’d) (memo op., not designated for publication) (holding that because there was sufficient evidence already before jury to support defensive argument, trial court did not abuse discretion in not reopening to permit more testimony on same issue).   

          Moreover, even if the trial court did err in not reopening the evidence to permit Jimenez to testify, such error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Reviewing the record as a whole, and considering in particular the evidence already before the jury from the testimony of Tapia, Fuentes, and appellant, we hold that no harm is shown. See, e.g., Decluitt v. State, No. 09-01-00278-CR, 2002 WL 1990777, at *4 (Tex. App.—Beaumont Aug. 28, 2002, pet. ref’d) (holding that trial court’s refusal to reopen evidence to allow jury to hear additional testimony on same issue on which considerable evidence had already been presented was harmless).

          Accordingly, we overrule appellant’s second point of error.Motion for New Trial

          In his third point, appellant contends that the trial court erred in denying his motion for new trial based on newly discovered evidence, specifically, the testimony of two additional witnesses, Danilo Gonzalez and Miguel Cruz, who testified at the hearing on appellant’s motion for new trial.

          Gonzalez, a co-worker of appellant and the complainant at the time of the incident, and a co-worker of appellant at a different company at the time of the motion for new trial, testified that the complainant had told him that the fact that a piece of glass “fell in his eye” was an “accident” and was not the fault of appellant. Gonzalez said that he had also overheard the complainant tell his employer, Rigoberto Lopez, and Lopez’s wife that the accident was not appellant’s fault and overheard the couple advising the complainant to press charges because “an eye was worth $120,000,” and offering to cover legal expenses for him. Gonzalez further testified that he was afraid to come forward during the trial because the son of Lopez was “in problems” with a street gang, and he did not want any “repercussions” from Lopez’s son, but he had come forward after the trial because he “became aware that they were accusing [appellant] unjustly.” Gonzalez also stated that he knew that the trial was going to occur; agreed that Rigoberto Lopez was the brother of Mardoqueo Lopez, who had testified on behalf of appellant during trial; and admitted that he had worked for Rigoberto Lopez for about a year and then was fired. He did not explain to whom he had come forward or how appellant had become aware of his information, though he did state that he had come forward after the verdict.

          Cruz testified that he had been with Martinez, a State’s witness, at an Alcoholic Anonymous meeting on the night of the incident. According to Cruz, the meeting ended at 11:00 p.m., and they had remained outside talking after the meeting for about 45 minutes before heading to the party in separate cars at 11:45 p.m. When Cruz arrived, people were gossiping about the fight, which had just occurred. Cruz stated that Hernan Martinez was trying to reach him by telephone sometime after the fight, but that he did not call him back; later, after the trial, Cruz told a mutual friend of appellant’s about being with Martinez the night of the incident.

A.      Standard of review

          “A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court’s ruling.” Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Thus, we reverse a trial court’s decision denying a motion for new trial only if, viewing the evidence in the light most favorable to the ruling, we conclude that the trial court’s decision is arbitrary or unreasonable. Id. In reviewing the trial court’s ruling, we are mindful of the fact that the trial court is the sole arbitrator of the credibility of the witnesses and evidence offered. Id. We defer to the trial court’s determination of historical facts, presume all reasonable factual findings that could have been made against the losing party were made against that party, and defer to all reasonable implied factual findings that the trial court might have made. Id. at 208, 211. Then, in light of the implied reasonable factual findings, we determine whether the trial court, in denying the motion for new trial, was “arbitrary and unreasonable,” id. at 208, acting “without reference to any guiding rules or principles,” see Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh’g).   

          “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006); see Keeter v. State, 74 S.W.3d 31, 36 (Tex. Crim. App. 2002). Texas courts have used a four-part test in determining whether a trial court may grant a new trial based on newly discovered evidence: (1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant’s failure to discover or to obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Keeter, 74 S.W.3d at 36–37. A movant’s failure to establish any of these four requirements warrants the denial of the motion for new trial. Delamora v. State, 128 S.W.3d 344, 354 (Tex. App.—Austin 2004, pet. ref’d).   

          The credibility of the witnesses presented in a motion for new trial and the probable truth of the new evidence are matters to be determined by the trial court. See Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984). Should it appear to the trial court that, under the circumstances of the case, the weight or credibility of the new evidence is not such that it would probably bring about a different result in a new trial, it is within the discretion of the trial court to deny the motion. Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986).

B.      Discussion

          After review of the record, we conclude that the trial court did not abuse its discretion in finding that appellant failed to meet his burden to establish all four Keeter requirements.  

          We first note that appellant did not allege, either in his motion for new trial or at the hearing on his motion, that the failure to discover this evidence before trial was not due to a lack of diligence, a necessary finding under the second requirement of Keeter. Nor did appellant provide any testimony or other evidence at the hearing regarding his efforts, if any, to discover or to obtain Gonzalez’s and Cruz’s statements before trial. There is therefore no pleading and no evidence that establishes that the failure to discover the new evidence before trial was not due to a lack of diligence. Because appellant failed to plead or to prove the second requirement of Keeter, the trial court could have reasonably concluded that he had failed to meet his burden as to the requirement of diligence. See Burns v. State, 844 S.W.2d 934, 935 (Tex. App.—Amarillo 1992, no pet.) (holding that there was no error in overruling motion for new trial based on discovery of new evidence when appellant did not plead in motion that failure to discover evidence was not due to lack of diligence); see also Sanchez v. State, No. 11-05-00043-CR, 2006 WL 998181, at *6 (Tex. App.—Eastland 2006, pet. ref’d) (memo op., not designated for publication) (holding that appellant failed to meet burden as to Keeter requirement of diligence when he did not plead in motion for new trial that failure to discover evidence was not due to lack of diligence and he did not present any evidence on issue of diligence at hearing on motion).

          Likewise, considering the third requirement of Keeter, given the nature of the testimony offered, the trial court could have reasonably concluded that the testimony offered was merely impeaching or, in the case of Cruz, cumulative or corroborative and so was not a valid basis for the granting of a new trial. See Shafer v. State, 82 S.W.3d 553, 557 (Tex. App.—San Antonio 2002, pet. ref’d) (holding that when only purpose of new evidence was to impeach witness’s trial testimony, such was “an impermissible reason to grant a second trial based on new evidence”) (citing Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994)).   

          Gonzalez’s proffered testimony, which dealt with a statement made by Martinez and the overheard conversation between Martinez and the Lopezes, was entirely hearsay, admissible only for the purposes of impeaching Martinez, and therefore would not be a proper basis for the grant of a new trial. See Tex. R. Evid. 801(d), 802, 613(a); Keeter, 74 S.W.3d at 37; Shafer, 82 S.W.3d at 557; Blackmon v. State, 926 S.W.2d 399, 403 (Tex. App.—Waco 1996, pet. ref’d) (noting that hearsay testimony was admissible only for impeachment and therefore trial court did not abuse discretion in denying new trial); see, e.g., Bookman v. State, No. 01-04-01145-CR, 2007 WL 1018648, at *10 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, no pet.) (memo op., not designated for publication) (holding that new evidence consisting of alleged admissions of State’s witness that he had lied at trial was merely attempt to impeach witness and trial court did not abuse discretion in denying motion for new trial).

          Similarly, Cruz’s testimony that he and Martinez had left the meeting area for the party at 11:45 p.m. and that, when he arrived, the fight was over, was offered to impeach the testimony of Martinez and his wife that Martinez had arrived at the party between 11:30 and 11:45 and to impeach the testimony of the complainant, Martinez, and Salazar, who each said that Martinez had witnessed the fight. Because its sole purpose was to impeach the State’s witnesses, this evidence would not have supported the grant of a new trial. See Shafer, 82 S.W.3d at 557; Keeter, 74 S.W.3d at 37; Jones, 711 S.W.2d at 39 (affirming denial of motion for new trial and holding that testimony of new witness, that State’s witness wrongly testified that he saw new witness on evening of crime, was only impeachment evidence). Moreover, Cruz’s testimony was merely cumulative and corroborative of testimony already before the jury—that of appellant, Fuentes, and Tapia—that Martinez had not been present at the scene of the fight at the time that it had occurred and so would not have provided a basis for the grant of a new trial for that reason, as well. See Etter, 679 S.W.2d at 515 (holding that testimony of co-defendant was merely cumulative and corroborative of appellant’s testimony and new trial was not required); Kennerson, 984 S.W.2d at 708 (holding that new testimony from barber that appellant had facial hair two days after offense did not merit granting of motion for new trial; noting that evidence was merely cumulative of testimony regarding appellant’s facial hair already before jury); Decker v State, 734 S.W.2d 393, 395 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (concluding that newly available testimony that simply corroborated appellant’s testimony that he did not use gun during offense did not warrant granting of new trial).

          The trial court therefore could have reasonably concluded that appellant’s new evidence did not satisfy the third requirement under Keeter.

          Finally, the trial court also could have reasonably concluded that appellant failed to show that the testimony of Cruz and Gonzalez was “probably true” or that their testimony would probably bring about a different result in a new trial, as required by the fourth element under Keeter. The trial court is the sole arbitrator of the credibility of the witnesses and evidence offered. Charles, 146 S.W.3d at 208; Etter, 679 S.W.2d at 515. In order to find evidence “probably true,” a trial court must determine that the whole record presents no good cause to doubt the credibility of the witness whose testimony constitutes new evidence, either by reason of the facts proven at the trial or by the controverting affidavits on the motion or otherwise. Henderson v. State, 82 S.W.3d 750, 755 (Tex. App.—Corpus Christi 2002, pet. ref’d) (citing Jones, 711 S.W.2d at 37 n.4). Conversely, a trial court can find new evidence is probably not true when that evidence contradicts either the mass of reliable testimony at trial or the defendant’s own testimony, or the new testimony is inconsistent or otherwise inherently suspect. Id. (citing Jones, 711 S.W.2d at 37 n.4). In the present case, the trial court specifically found “both witnesses who testified . . . not credible.” Reviewing the record as a whole, in the light most favorable to the trial court’s decision, Charles,146 S.W.3d at 208, we conclude that the record does not demonstrate a clear abuse of discretion in the trial court’s finding that the testimony was not credible and therefore that the new evidence was not “probably true.” Furthermore, given that two other witnesses, in addition to appellant, had already testified before the jury that Martinez had not been present to witness the fight, the trial court could have reasonably concluded that Cruz’s and Martinez’s testimony would not probably bring about a different result in a new trial. See Jones, 711 S.W. 2d at 37. Therefore, the trial court could have reasonably found that appellant did not meet the fourth element under Keeter.   

          We hold that the trial court did not abuse its discretion in denying appellant’s motion for new trial and overrule appellant’s third point of error.

Jury Charge

          In his fourth point of error, appellant contends that the trial court erred by submitting a jury charge that denied appellant the right to a fair trial. He claims that the trial court’s charge “misled the jury because it was vague, hopelessly confusing, internally contradictory, failed to properly state required elements and definitions of the Law, and failed to apply self-defense to the Offense contained in Paragraph 2 of the charge.”

          In analyzing a jury-charge issue, our first duty is to decide if error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Only if we find error do we then consider whether an objection to the charge was made and analyze for harm. Id.; see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.”). If jury-charge error exists to which a timely objection was lodged, then reversal is required if the record demonstrates “some harm” to the defendant because of the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If jury-charge error exists to which no objection was lodged, we may not reverse on account of such error unless the error was so egregious and created such harm that appellant was denied a fair trial. Warner, 245 S.W.3d at 461; Almanza, 686 S.W.2d at 171. In order to determine egregious harm, we examine “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171. “The appellant must have suffered actual, rather than theoretical, harm.” Warner, 245 S.W.3d at 461.

A.      Jury confusion

          The jury’s confusion in this case was evident, appellant contends, by the multiple notes to the trial court during deliberation and the several announcements that it was deadlocked. Appellant argues that the trial court erred by charging the jury in an “either, or” manner, thereby presenting the jury with a hopelessly confusing task in determining guilt or innocence.

          Presumably, appellant’s aversion to “charging the jury in an ‘either, or’ manner” refers to the fact that the jury could convict appellant of a single charge of aggravated assault if it found that he committed either of the following acts: (1) unlawfully, intentionally and knowingly caused bodily injury to the complainant by using a deadly weapon or (2) unlawfully and recklessly caused serious bodily injury to the complainant by throwing a bottle in his direction. However, the Court of Criminal Appeals has spoken clearly on that question. Although the jury must agree that a defendant committed one specific crime, it need not unanimously find that a defendant committed that crime in one specific way or even with one specific act. Landrian, 268 S.W.3d at 542.  

          Accordingly, we hold that the trial court committed no reversible error by charging the jury in such a manner.  

B.      Transferred intent

          Appellant argues that the transferred intent instruction likely caused confusion among the jurors because it did not seem to fit the evidence. “No evidence was presented to the jury to show that appellant intentionally or knowingly ‘threw’ the bottle at Luis Miguel and missed, hitting Luis Brizuela instead,” appellant states.

          While some evidence was presented suggesting that appellant intentionally threw the bottle directly at the complainant, the State accurately points to other evidence supporting the transferred intent charge. For instance, Officer Le testified that the complainant told him that appellant had attempted to hit Miguel with the bottle, but had hit the complainant instead. Also, Officer Phillip Guerrero testified that the complainant’s original complaint stated that appellant had attempted to throw the bottle at Miguel, but had accidentally hit the complainant with the bottle. Finally, in his original statement to police, Martinez said appellant had thrown the bottle at Miguel, but had instead hit the complainant.   

          Transferred intent “is raised when there is evidence a defendant with the required culpable mental state intends to injure or harm a specific person but injures or harms a different person . . . [.] ” Manrique v. State, 994 S.W.2d 640, 647 (Tex. Crim. App. 1999) (McCormick, J., concurring); see Tex. Penal Code Ann. § 6.04(b)(2) (Vernon 2003) (“A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that . . . a different person or property was injured, harmed, or otherwise affected.”).   

          Evidence at trial raised the issue of whether appellant, acting intentionally or knowingly, used a deadly weapon, a bottle, intending to cause bodily injury to Miguel, but injuring the complainant. Because there was evidence supporting the granting of a charge on transferred intent, we hold that the trial court did not err in giving such a charge.

C.      Self-defense

          Appellant next challenges the trial court’s charge because (1) the trial court erred by not including appellant’s requested instruction on self-defense regarding paragraph two of the indictment and (2) in the self-defense instruction for paragraph one of the indictment, the trial court included the notion of “deadly force,” and not “necessary force” as well.   

          1.       Self-defense instruction as to reckless injury alleged in paragraph two

          Self-defense is not available to a defendant in a prosecution for recklessly injuring an innocent third person. See Tex. Penal Code Ann. § 9.05 (Vernon 2003) (“Even though an actor is justified under this chapter in threatening or using deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person”); Hayes v. State, 161 S.W.3d 507, 508 n.3 (Tex. Crim. App. 2005). Self-defense requires intentional conduct, and so one cannot “recklessly” act in self-defense. Tex. Penal Code Ann. §9.31 (Vernon Supp. 2008); Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see Fuller v. State, No. 01-06-01077-CR, 2008 WL 4427653, at *4 (Tex. App.—Houston [1st Dist.] Oct. 2, 2008, no pet.) (memo op., not designated for publication) (holding that jury could not have found that appellant acted in defense of self after determining that he acted recklessly because self-defense does not apply to reckless act).   

          Paragraph two of the indictment charged appellant with unlawfully and recklessly causing serious bodily injury to the complainant by throwing a bottle in the direction of the complainant. Therefore, self-defense—or in this case, deadly force in defense of person—was not available to appellant as a legal defense for the conduct with which appellant was charged in paragraph two. See Tex. Penal Code Ann. § 9.05; Hayes, 161 S.W.3d at 508 n.3. There is therefore no error in the court’s failure to provide a jury instruction on deadly force in defense of person as to paragraph two of the indictment.

          2.       “Deadly force” instruction as to paragraph one

          Regarding paragraph one of the indictment, appellant argues that by allowing the jury to consider only whether appellant was justified in using deadly force, rather than “the ordinary ‘self-defense’ charge,” the charge improperly commented on the evidence. See Tex. Penal Code Ann. §§ 9.31(a), 9.32 (Vernon Supp. 2008) (self-defense and deadly force in defense of person, respectively). Further, appellant contends that, had the trial court allowed the jury to consider “necessary force,” the jury could have found that appellant did not use deadly force, but used reasonable, necessary force in hitting Miguel with the beer bottle in self-defense. Finally, appellant objects to the trial court’s instruction to consider, in determining whether appellant was reasonable in using deadly force, “the facts and circumstances surrounding his relationship with Luis Brizuela prior to the incident.” (Emphasis in original.)   

          In order to determine whether the trial court should have included an application paragraph regarding non-deadly, “necessary” force under section 9.31 (self-defense), rather than the given instruction regarding deadly force under section 9.32 (deadly force in defense of person), a reviewing court must first decide if there was any evidence that the force used by appellant was not deadly force. Denman v. State, 193 S.W.3d 129, 134 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). For appellant to be entitled to a non-deadly-force instruction, there must be evidence that the instrument used—in this case, a bottle—was not capable of causing death or serious bodily injury in the manner of its use or intended use. See Ferrel v. State, 55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001). Under this standard, we must look at the end result of the act and, if the facts are such that the complainant suffered serious bodily injury or death, then, by definition, the force used was deadly, and an instruction under section 9.31 is not applicable to the case. Id. at 592.

          It is clear that the complainant suffered serious bodily injury—the loss of his eye. Accordingly, appellant necessarily used deadly force and so was not entitled to an instruction on non-deadly force. See Denman, 193 S.W.3d at 135. For the same reasons, the trial court properly allowed the jury to consider only whether appellant was justified in using deadly force and did not comment on the evidence in so doing.  

          Additionally, appellant objects to the fact that, as part of the deadly force charge, the trial court gave the following instruction:

You are instructed that you may consider all relevant facts and circumstances surrounding the offense, if any, and the previous relationship existing between the accused and [the complainant], together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense, if any.

Appellant does not complain on appeal that such an instruction should not have been given at all, but rather challenges the wording of the instruction, arguing that the trial court should have instructed the jury to consider appellant’s relationship with Miguel, rather than the relationship between appellant and the complainant.

          This portion of the charge arises from the provisions of Texas Code of Criminal Procedure article 38.36(a), which reads, “In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005). The plain language of article 38.36(a) dictates that the “previous relationship” that the jury may consider under such article is that between the defendant and the complainant of the offense. See id. Therefore, the trial court did not err in failing to instruct the jury that it could consider the previous relationship between appellant and Miguel.

D.      Resolution

          We hold that the trial court did not err in (1) charging the jury in an “either, or” manner, (2) providing a transferred intent instruction, (3) not including a deadly force instruction as to paragraph two, (4) providing an instruction on deadly force, rather than necessary force, and (5) not providing an article 38.36(a) instruction that would have permitted the jury to consider the previous relationship between appellant and Miguel. We overrule appellant’s fourth point of error.

Jury Coercion

          In his fifth point of error, appellant argues that the trial court committed reversible error by improperly coercing the jury through the cumulative effect of its conduct including hostile communications to the jury, submission of an Allen charge in the face of the jury’s claiming to be deadlocked, and improper refusal to declare a mistrial. Appellant contends that such jury coercion denied him the right to a fair and impartial trial, guaranteed by the Sixth Amendment to the U.S. Constitution and Article V, Section 10, of the Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. V, § 10.

A.      Allen charge and hostile communications

          Appellant argues that the trial court improperly coerced the jury by giving it an Allen charge and engaging in “hostile communications.” The Allen charge came after the jury had sent at least half a dozen notes, including one saying that it was deadlocked. Appellant objected to the Allen charge on the ground that giving that “charge this early in their deliberations is coercive and may result in an unfair, compromised verdict.” Appellant also objected to the manner in which the court responded to one of the jury notes, although he did not object to the content of the response. Appellant did not make any objection below that the cumulative effect of the trial court’s communications coerced the jury.

          1.       Standard of review  

          An Allen charge is an instruction given to a deadlocked jury to continue deliberating. Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896). The use of such a charge has long been sanctioned by the Supreme Court and the Texas Court of Criminal Appeals. See Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996). “The primary inquiry to determine the propriety of an Allen charge . . . is its coercive effect on juror deliberation ‘in its context and under all circumstances.’” Id.   

          2.       Discussion

           In the instant case, the Allen charge included very similar standard language to that in Arrevalo v. State, which was held not to be coercive. 489 S.W.2d 569, 571 (Tex. Crim. App. 1973). The charge in Arrevalo was a fairly standard Allen charge. Id. It informed the jury that the consequences of a hung jury were a mistrial and a probable retrial in which a future jury would be presented with the same evidence. Id. It also requested that the jurors continue deliberating “in an effort to arrive at a verdict which is acceptable to all members of the jury.” Id. (Emphasis added).          In the charge at issue, the trial court arguably made even more explicit than in Arrevalo that jurors should remain true to their personal convictions, stating: “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.” (Emphasis added.) Moreover, the timing and circumstances of the charge were not coercive. The trial court did not provide the Allen charge until after it had received numerous notes from the jury, including one indicating that the jury was deadlocked. See Loving v. State, 947 S.W.2d 614, 620 (Tex. App.—Austin 1997, no pet.) (holding that Allen charge given after fewer than five hours of deliberation, and before jury had indicated it was deadlocked, was not error). We hold that the Allen charge given, “in its context and under all circumstances,” was not coercive.   

          Appellant also argues that the cumulative effect of the trial court’s numerous instructions to the jury was coercive. Appellant did not make any such objection to the trial court and so has not preserved such complaint for appellate review. See Tex. R. App. P. 33.1(a)(1). However, because appellant did make one objection to one note, we will consider the trial court’s actions as to all the notes.   

          The jury sent out several notes, both substantive and logistical in nature. The appellate record does not clearly reflect all of the times and dates of the jury’s notes and the trial court’s responses or the exact order in which they were sent. Nonetheless, because the accounts by appellant and the State do not seem to contradict each other materially, we delineate and address appellant’s version of the exchange between the jury and the trial court.

          The jury first asked some questions, requesting the opportunity to read appellant’s testimony. The trial court responded by directing the court reporter to read back the requested testimony that the trial court believed answered “both of the jury’s questions.” The jury later requested a copy of the indictment. The court responded, stating that:

The language of the indictment is contained in the charge. Paragraph 1 of the indictment alleges that Mr. Landrian intentionally or knowingly caused bodily injury to Luis Brizuela by using a deadly weapon, namely, a bottle. Paragraph 2 of the indictment alleges that Mr. Landrian recklessly caused serious bodily injury to Luis Brizuela by throwing a bottle in the direction of Mr. Brizuela. Read the charge and continue to deliberate.

The jury continued deliberating and then asked, “Do we base our decision only on the evidence presented or may we apply our collective common sense to the evidence presented?” The court again answered, “READ THE CHARGE AND CONTINUE TO DELIBERATE.” The jury later asked two questions about the throwing of the bottle, one related to burden of proof, and the other to transferred intent. To both inquiries, the court responded, “READ THE CHARGE AND CONTINUE TO DELIBERATE.”   

          After more deliberation, the jury said that it was deadlocked. The trial court then read the jury the Allen charge. The jury later sent another note saying that it was “hopelessly deadlocked without an answer to the common sense question.” Before the end of that day, the jury sent two additional notes asking whether there was a typographical error in the charge, and the trial court answered in the negative. Finally, the jury sent a note asking, “Can we apply self-defense to paragraph II of the indictment?” The court answered, “READ THE CHARGE AND CONTINUE TO DELIBERATE.” Distinct from the previous instructions with the same messages, the “Read the charge” portion of the instruction was written in a font about triple the size of the “and continue to deliberate” portion and was followed by three exclamation points.

          After writing the instruction, but before giving it to the jury, the court addressed appellant’s objection to that instruction, asking, “The Defense is objecting to the size of my font, right?” In response, appellant’s counsel stated:

I’m objecting that the way that the Court has written this response is suggestive to the jury that he’s upset with them. It’s a comment on their deliberations and I believe that it’s coercive to the jury and so I object to that. I don’t object to the answer. I just object to the way the Court has exclamated and written the answer.  

The trial court denied that objection “as being silly.”

          The trial court did not abuse its discretion by this ruling. The jurors could have reasonably perceived that the trial court was frustrated by the repeated inquiries whose answers could be found within the jury charge. However, the trial court did not in any way convey in that jury instruction its opinion of the merits of the case or favor one side over the other. Nor did any of the notes improperly pressure the jury into returning a verdict. See Arrevalo, 489 S.W.2d at 571.  

          We hold that the notes to the jury, including the Allen charge, did not improperly coerce the jury into rendering a verdict. We overrule this portion of appellant’s fifth point of error. 

B.      Denial of motion for mistrial

          After the jury had sent a note saying it was deadlocked, the trial court contemplated reading the jury an Allen charge. Before it did so, the trial court asked appellant’s counsel, out of the presence of the jury, if he wanted to comment. After reviewing the proposed Allen charge, appellant moved for a mistrial on the grounds that the Allen charge would be “coercive and violates the province of the jury.” The court denied that motion. Appellant contends that the trial court abused its discretion by overruling his motion for mistrial.

          1.       Standard of review  

          Whether a jury should be dismissed and a mistrial ordered is a matter within the sound discretion of the trial court and, absent an abuse of that discretion, there is no error. Tex. Code Crim. Proc. Ann. art. 36. 31 (Vernon 2006) (“After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.”); DeLuna v. State, 711 S.W.2d 44, 48 (Tex. Crim. App. 1986); Love v. State, 627 S.W.2d 457, 458 (Tex. App.—Houston [1st Dist.] 1981, no pet.). In deciding whether the trial court abused its discretion in not ordering a mistrial and discharging a jury, it is appropriate for the appellate court to consider the amount of time that the jury deliberated. Love, 627 S.W.2d at 458.   

          2.       Discussion  

          Based on the number of witnesses and issues to resolve, as well as the length of the trial compared with the length of jury deliberation, the trial court did not abuse its discretion in denying appellant’s motion for mistrial. The guilt-innocence phase of the trial took place over the course of three days: June 22–24, 2005. The testimony presented came from more than a dozen witnesses. The trial court’s charge to the jury included several issues upon which it had to agree, including an instruction on transferred intent, self-defense, and a special “deadly weapon” issue.

          The trial court could have concluded that granting a mistrial would have been premature. As appellant’s counsel himself noted in his objection to the Allen charge, the jury had been deliberating fewer than five hours. The period of time that the jury deliberated was not so disproportionate to the length of the trial as to require the jury’s dismissal and a declaration of a mistrial. See id. 458–59 (holding that trial court did not abuse its discretion in refusing to declare mistrial when jury deliberated for approximately six hours after approximately two-hour trial). Accordingly, we hold that the trial court did not abuse its discretion in instructing the jurors to continue their deliberations.

          For the aforementioned reasons, we overrule the balance of appellant’s fifth point of error.

Conclusion

          We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. See Tex. R. App. P. 47.2(b).