Richard Roll v. State

NUMBER 13-98-462-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ RICHARD ROLL, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On appeal from the 94th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa Appellant, Richard Roll, was indicted for intoxication manslaughter after the motorcycle he was driving slammed into a parked vehicle, ejecting and killing his passenger. After a one-day trial, the jury deliberated about eight hours before sending out a note indicating they were unable to reach a unanimous verdict "at this time." After conferring with both trial counsel, the trial court gave the jury an Allen or "dynamite" charge designed to explain the consequences of failure to reach a verdict. Allen v. United States, 164 U.S. 492, 501 (1896). The jury found appellant guilty of the offense of intoxication manslaughter, and the trial court assessed his punishment at ten years' imprisonment, a $2,000 fine, and restitution of the victim's funeral and medical expenses. The sentence was suspended and appellant was placed on community supervision for ten years. As a condition of his community supervision, appellant was ordered to pay his fine and restitution. By three issues, appellant contends: (1) the trial court committed reversible error by submitting an Allen charge to the jury in violation of statutory procedure; (2) the Allen charge given was so improper as to coerce the jury and deny him a fair trial; and (3) he received ineffective assistance of counsel. In his first issue, appellant contends the giving of the Allen charge violated article 36.16 of the code of criminal procedure because none of the three conditions set out in article 36.16 was present: After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony[.] Tex. Code Crim Proc. Ann. art. 36.19 (Vernon 1981). Appellant objected to the Allen charge based on its possible coercive effect on the lone holdout juror, and on the possible inaccuracy of the Allen charge statement that a second jury would likely hear the same evidence, but he did not specifically raise article 36.16 as the basis for his objection. Appellant contends that his objection to the Allen charge being given "in the first place"(1) constitutes an objection based on article 36.16. However, a careful reading of the record shows that trial counsel was referring to his previous objection to the possible coercive effect on a lone holdout juror, which already had been overruled. He then objected to the charge because he had just learned from appellant that there could be two new witnesses if a new trial were held. Thus, a specific article 36.16 objection to the Allen charge was never raised at trial. To preserve jury charge error, the defendant's objection must be specific and clear enough to apprise the trial court of the nature of the objection. Tex. Code Crim. Proc. Ann. art. 36.14; Tex. R. App. P. 33.1(a)(1)(A); Pennington v. State, 687 S.W.2d 387, 390 (Tex. Crim. App. 1985); Williams v. State, 930 S.W.2d 898, 902 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). If a specific objection to an Allen charge is not raised at trial, it is not preserved for appeal. Calicult v. State, 503 S.W.2d 574, 576 n. 3 (Tex. Crim. App. 1974); Loving v. State, 947 S.W.2d 615, 619 (Tex. App.--Austin 1997, no pet.); Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App.--Texarkana 1988, pet. ref'd). We hold appellant did not properly preserve this issue for appeal by making a timely objection at trial. Appellant's first issue is overruled. In his second issue, appellant contends the Allen charge was so improper that it coerced the jury and denied him a fair and impartial trial. The Allen charge is an accepted part of both federal and Texas jurisprudence. Lowenfeld v. Phelps, 484 U.S. 231, 237 (1988); Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996). An Allen charge may be improperly coercive to holdout jurors by its very language, but an instruction will constitute reversible error only if, on its face, it is so improper as to render jury misconduct likely, or jury misconduct is demonstrated to have occurred in fact. Love v. State, 909 S.W.2d 930, 936 (Tex. App.--El Paso 1995, pet. ref'd); Davis v. State, 709 S.W.2d 288, 291 (Tex. App.--Corpus Christi 1986, pet. ref'd). The following Allen charge was given to the jury: If this jury, after a reasonable length of time finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the 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 empanelled in the same way this jury has been empanelled, and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same as the questions confronting you and there is no reason to hope that the next jury will find those questions any easier to decide than you have found them. With this additional instruction, you are instructed to continue deliberations in an effort to arrive at a verdict which is acceptable to all members of the jury. Texas courts have found this exact Allen charge not coercive on its face. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973); Rodela v. State, 666 S.W.2d 652, 652-53 (Tex. App.--Corpus Christi 1984, pet. ref'd). A supplemental charge which suggests that all jurors reevaluate their opinions in the face of disparate viewpoints cannot be said to be coercive on its face. Howard, 941 S.W.2d at 123. We conclude the charge is not coercive on its face. We find no evidence in the record showing that the jury was in fact coerced by the charge.(2) An Allen charge may also be coercive when taken in the overall context of the jury deliberation. Id. Thus, we are required to examine closely the history of the jury deliberation in this case. Trial Begins 08/11/98, morning Jury deliberation Begins 08/12/98 at 4:45 p.m. Note # 1 08/12/98, 4:45 p.m. Can we possibly get some soft drinks? Note # 2 08/12/98, 5:20 p.m. We need an extension cord. Note # 3 08/12/98 6:30 p.m. Could we have the transcript of Mr. Rolls [sic] testimony from today? Court (in writing): In response to your question, the Texas Code of Criminal Procedure provides the following: "If the jury disagrees as to the statement of any witness, they may have read to them from the Court Reporter's notes that part of such witness' testimony or the particular point in dispute, and no other." In accordance with the Rule, you are instructed that a request to have the court reporter's notes read cannot be complied with unless the jury disagrees as to the statement of the witness. Therefore, it will be necessary for you to certify that you are in disagreement as to the statement of a witness, and you should request that part of the witness' statement on the point in dispute, and only on that point which is in dispute. [Signed by judge] Please continue your deliberations or advice [sic] if you wish to recess for the evening. Note # 4 08/12/98, 7:30 p.m. We need Dr. Garriot's testimony read as to the Defendant's blood level alcohol content at the time of the Accit [sic]. Court (in writing) 7:40 p.m. The parties agree that Dr. Garriot testified that the defendant's blood alcohol level at the time of the accident was estimated to be between .07 and .08. (Initialed by both counsel.) Note # 5 08/12/98, 7:50 p.m. At this time the jury is not in total agreement. We are asking for a recess for the day and to return to deliberation tommorow [sic] at 9 am. We the jury. [Signed by foreperson] It is very very hot in the jury room in more than one way. Court (in open court): Ladies and gentlemen of the jury, the Court has received your notes, and I appreciate the note. I wish I could do something about the air conditioning in there, but they shut it down. It was beyond my control, so I apologize for that. The other heat I can do nothing about, but I do appreciate your note. [Court recessed until 9:00 next day.] Deliberation resumes: 08/13/98, 9:00 a.m. Note # 6 08/13/98, 9:15 a.m. 1. Were there two separate viles [sic] of blood drawn and what times were they drawn? 2. Is Dr. Garriat's [sic] testimony considered fact or evidence or an opinion? Court (in writing) 9:35 a.m. You are the exclusive Judges of the facts proven by the evidence presented, if any. Please re-read the Courts' Charge and continue your deliberations. Note # 7 08/13/98, 10:20 a.m. There was testimony given by the first officer on the scene and the MMC Hospital lab tech regarding drawing of lab samples at different times. Question: Did CCPD take a blood sample at 3:00 am and did the MMC Hospital lab tech testify that a separate blood sample was taken at 3:11 am, or was the first blood sample taken at 3:00 am divided up for both parties? Court (in writing): (Repeats same instruction above regarding certification of a jury disagreement before reading back of testimony is allowed.) AND In response to your question, you must determine this case upon the evidence which you have heard and the exhibits which have been admitted into evidence during the trial. Note # 8: 08/13/98, 11:30 a.m. In order to be more specific as to our request for testimony, we need a complete list of witnesses for this case. Court (in writing) 11:45 a.m. (Provides complete list of witnesses. List is initialed by both counsel.) Note # 9 08/13/98, 1:15 p.m. Witness: Jerome Edward Varney Testimony: As to the no. of blood samples taken. Point of Dispute: How many viles [sic] of blood did he (Mr.Varney) drew [sic] and what time were they taken? We the jury certify that we are in disagreement on this question. Court: (Court summoned the jury to the courtroom and had the court reporter read back the relevant testimony.) Note # 10 08/13/98, 2:00 p.m. We the jury are unable to come to a unanimous agreement on a verdict. We have one and a half jurors, who have what they feel is reasonable doubt on two areas of evidence. By the courts [sic] charge, we are at an impass [sic] and are unable to continue. Court (in writing): Please continue to deliberate. Note # 11 08/13/98, 3:00 p.m. One of the jurors has requested that the deliberation be halted as he feels that his mind will not be changed. We are still unable to unanimously come to a verdict at this time. Court: Receives and files note at 3:24 p.m. Summons both counsel. Defense moves for mistrial on grounds of coercion. State argues there has been progress in the last hour and requests Allen charge. Motion for mistrial denied. Defense objects to proposed modified Allen charge on ground that evidence in a new trial could be different. Defendant has just informed him of two new witnesses he could call if there is a new trial. "Modified" Allen charge given. Note # 12 08/13/98, 3:45 p.m. The jury request a 1 hour recess. Please! At which time we will continue to deliberate. Court (in writing) 3:57 p.m. You may recess for 20 minutes and then continue your deliberations. Note # 13 03/13/98, 5:50 p.m. We the jury have reached a unanimous decision. Verdict: Guilty of Intoxication Manslaughter Appellant made no motion to have the jury polled. A motion for leave to file an out of time motion for new trial was denied. This jury deliberated nearly twelve hours and sent out twelve notes before reaching a verdict. The history set out above clearly shows a jury continuing to struggle with the evidence and issues in a meaningful way. The first deadlock note (Note # 10) reports "one and a half jurors" with reasonable doubt. The second deadlock note (Note # 11) just one hour later reports only one juror unwilling to continue deliberating because "he feels his mind will not be changed," implying that there is now only one "holdout" who feels there could be reasonable doubt. This is when the Allen charge was given. The next note (Note # 12) requests a recess, but indicates the jury is now willing to continue deliberations. The guilty verdict was reached more than two hours after the Allen charge was given. Appellate courts have reviewed a number of factors in determining whether a certain Allen charge was coercive in its context. 1. Whether the court requested information about how the jury was split. This was held to be impermissibly coercive in Brasfield v. United States, 272 U.S. 448, 449 (1926). Appellant relies on United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984), in which the jury informed the judge on its own initiative that it was split eleven to one. He then polled each individual juror as to whether they thought additional deliberations would result in a verdict. The Ninth Circuit found this impermissibly coercive because the holdout juror was aware the judge knew he was the holdout and could reasonably infer that the Allen charge was directed to him personally. Id. at 531-32. However, in United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992), the Ninth Circuit re-examined Sae-Chua and held that where the numerical split is volunteered, but the holdout juror's identity is not known to the court, no juror could feel that the Allen charge is directed at him personally, and thus there can be no coercion. Id. at 894. In Howard, the Texas Court of Criminal Appeals held that where the trial court did not directly address the minority jurors and did not shade the instruction with coercive nuance, there was no reversible error merely because the court inadvertently learned the numeric division of the jury. Howard, 941 S.W.2d at 124; see also, Hollie v. State, 967 S.W.2d 516, 522 (Tex. App.--Fort Worth 1998, pet. ref'd) (trial court's unsolicited knowledge as to numerical split of jurors did not render Allen charge coercive); Odom v. State, 682 S.W.2d 445, 449 (Tex. App.--Fort Worth 1984, pet. ref'd) (jury foreman's volunteering the numerical split did not preclude trial court from giving Allen charge). This is clearly the case here. The jury volunteered that they were split 11-1, but the court had no way of knowing which juror was the holdout. Therefore, there can be no coercion in this respect. 2. That the trial court gave the Allen charge only once. Ajiboye, 961 F.2d at 894. Here, the Allen charge was given only once. 3. Whether the jury deliberated only briefly after the Allen charge was given. Ajiboye, 961 F2d at 894; Davis v. State, 709 S.W.2d 288, 291 (Tex. App.--Corpus Christi 1986, pet. ref'd). In the instant case, the jury deliberated approximately nine and one-half hours, received the Allen charge, and then deliberated at least another two hours before reaching the guilty verdict. We hold that the jury did not deliberate "only briefly" after the Allen charge was given. 4. The jury asked for some testimony to be read back after the Allen charge was given. Ajiboye, 961 F.2d at 894. That did not happen in this case. 5. The charge included a cautionary instruction that an honest view as to the weight and effect of the evidence should not be surrendered. Id.; Howard, 941 S.W.2d at 123-34; Garza v. State, 974 S.W.2d 251, 256 (Tex. App.--San Antonio 1998, pet. ref'd); Odom, 682 S.W.2d at 449; Dodd v. State, 753 S.W.2d 519, 520 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Here, the requisite cautionary language is present. The Allen charge instructed the jury to "continue deliberations in an effort to arrive at a verdict which is acceptable to all members of the jury." 6. Whether the charge was a comment on the evidence. Hollie, 967 S.W.2d at 523; Arrevalo, 489 S.W.2d at 571. The Allen charge in this case cannot be seen as a comment on the weight of the evidence. 7. Whether the charge spoke directly to the minority jurors. Allen, 164 U.S. at 501; Howard, 941 S.W.2d at 123-34; Hollie, 967 S.W.2d at 522-23; Dodd, 753 S.W.2d at 520. This Allen charge does not directly address the minority jurors. After reviewing the enumerated factors in the context of the history of the jury deliberation, we hold the Allen charge given to the jurors in this case was not coercive. Appellant's second issue is overruled. In his third issue, appellant contends he received ineffective assistance of counsel because his trial counsel failed to object to the Allen charge based on article 36.16, his purported absence during parts of the deliberation, and his failure to poll the jury after the verdict. Claims of ineffective assistance are analyzed under the rule set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). The appellant must show that: (1) his trial counsel's performance was not reasonably effective, falling below an objective standard of reasonableness under the prevailing professional norms, and (2) a reasonable probability this deficient performance prejudiced or harmed him. Strickland, 466 U.S. at 694; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989). The reasonably effective assistance standard does not mean errorless counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Hernandez v. State, 799 S.W.2d 507, 508 (Tex. App--Corpus Christi 1991, pet. ref'd). "A reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). A showing of deficiency requires a demonstration that the trial counsel made errors so serious that he was not functioning as the counsel guaranteed a defendant under the Sixth Amendment; the prejudice element requires a showing that the trial counsel's errors were so serious as to deprive the defendant of a fair trial: one whose result is reliable. Strickland, 466 U.S. at 687. The appellant bears the burden of showing why both prongs of this test must be answered in the affirmative. Jackson, 877 S.W.2d at 771 (citing Strickland, 466 U.S. at 689). The totality of the representation is evaluated from counsel's perspective at trial, not his isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986); Mayhue v. State, 969 S.W.2d 503, 510 (Tex. App.--Austin 1998, no pet.). There is a strong presumption that the defense counsel's conduct falls within the wide range of reasonable, professional assistance, and that the challenged action might be considered sound trial strategy, and the appellant bears the burden of overcoming this presumption. Jackson, 877 S.W.2d at 771. Texas courts have held that trial counsel is not ineffective for failing to object to an Allen charge that is not coercive. Jones v. State, 986 S.W.2d 358, 362 (Tex. App.--Beaumont 1999, pet. ref'd ); Clark v. State, 952 S.W.2d 882, 888 (Tex. App.--Beaumont 1997, no pet.). Therefore, even if appellant's trial counsel had made no objection at all to the Allen charge given here, his representation would not be deemed ineffective on this basis. Likewise, the representation was not ineffective because the trial counsel failed to object to the Allen charge on every conceivable basis. Furthermore, as Texas courts have long approved the giving of non-coercive Allen charges, it would be against the great weight of the case law to hold that article 36.16 prohibits the giving of such charges, or that a trial counsel was ineffective for failing to object to an Allen charge. At any rate, the only possible objection that could be made about this Allen charge under article 36.16 is that it was not given in response to a "request of the jury." However, the last jury note sent out before the giving of the Allen charge can reasonably be interpreted as a request for further guidance from the trial judge. We hold appellant's trial counsel was not ineffective for failing to object to the Allen charge on the basis that it violated Texas Code of Criminal Procedure article 36.16. The trial counsel's absence during portions of the jury deliberation is not clear from the record. He was present at the Allen charge conference, and his initials appear on the judge's written responses to Notes 4 and 8. Because no evidence of any absences by appellant's trial counsel during jury deliberation is properly before us, we do not reach the issue of whether this could render appellant's assistance ineffective. As to trial counsel's failure to poll the jury after the guilty verdict was announced, appellant has not adduced any evidence required by Strickland and Jackson to overcome the presumption that the trial counsel's action was within the wide realm of reasonable professional assistance. To quote Justice Baird's concurring opinion in Jackson, As a general rule, one should not raise an issue of ineffective assistance of counsel on direct appeal . . . because a trial record is generally insufficient to address claims of ineffective assistance of counsel in light of the "strong presumption the [trial] counsel's conduct falls within the wide range of reasonable professional assistance". . . [A] record focused on the conduct of trial or appellate counsel should be developed. Such a record is generally best developed in the context of a hearing held in relation to an application for writ of habeas corpus. . . . One may also develop such a record at the hearing on a motion for new trial . . .[but] in most cases this will be impractical because the time constraints for filing a motion for new trial . . . do not provide for adequate investigation. Further, the trial record will generally not be transcribed, and, therefore, unavailable for preparation for and use at the motion for new trial hearing. Jackson, 877 S.W.2d at 772. After reviewing the entire record before us, we find that appellant's trial counsel made pretrial motions, actively participated in voir dire, vigorously cross-examined the state's witnesses, and made a number of objections, including several to the complained-of Allen charge. Accordingly, we hold appellant did not receive ineffective assistance of counsel. We overrule appellant's third issue. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 31st day of August, 2000. 1. Appellant's Counsel: "Your Honor, I have an objection to the Court reading the charge, in the first place; but if the Court is going to read that charge, I have a specific objection to make to the charge the Court is prepared to read. I've had a chance to review it, and I would like to make a specific objection to it." 2. Under Texas Rule of Evidence 606(b), which became applicable to criminal cases for the first time on March 1, 1998 and was in effect at the time of this trial, jurors are no longer competent to testify about anything occurring during the deliberative process except as to outside influences brought to bear on the jury or to rebut a claim that a juror was not qualified to serve. See Hines v. State, 3 S.W.3d 618, 621 (Tex. App.--Texarkana 1999, pet. ref'd). Therefore, a juror affidavit concerning the coerciveness of an Allen charge will not be admitted.