Hairston, Jermont Martez v. State

Affirmed and Memorandum Opinion filed April 20, 2006 Affirmed and Memorandum Opinion filed April 20, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-04-01016-CR NO. 14-04-01017-CR _______________ JERMONT MARTEZ HAIRSTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause Nos. 931,833 & 931,834 M E M O R A N D U M   O P I N I O N Appellant, Jermont Martez Hairston, appeals his convictions for aggravated robbery and aggravated sexual assault. In two issues, appellant contends that (1) he was denied his constitutional right to confront and cross-examine a witness, and (2) the trial court coerced the jury to return a punishment verdict. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background On July 1, 2002, appellant held a gun to the complainant=s back as she was returning home and forced her and her two-year-old son into her apartment. Once inside the apartment, appellant took approximately $600 in rent money and a plastic milk jug containing coins. Appellant forced the complainant to perform oral sex and have sexual intercourse with him in front of her son. After sexually assaulting her, appellant attempted to destroy any physical evidence by pouring hydrogen peroxide and rubbing alcohol on her. A maintenance worker saw appellant rushing out of the complainant=s apartment carrying a plastic container. He asked a female housekeeper to check on the complainant. The complainant told the housekeeper about the sexual assault, and the housekeeper called the police. The complainant was taken to the hospital for treatment. A DNA sample taken from sperm on the complainant=s underwear matched appellant=s DNA. A jury convicted appellant of aggravated robbery and aggravated sexual assault and assessed his punishment at thirteen years= imprisonment for aggravated robbery and thirty years= imprisonment for aggravated sexual assault. II. Confrontation Clause In his first issue, appellant complains of the maintenance worker=s testimony concerning his identification of appellant in a video lineup. Specifically, appellant contends that he was denied his right under the Sixth Amendment of the United States Constitution to confront and cross-examine the worker because he could not Ashow any fact concerning the video lineup.@ At trial, appellant objected to the testimony of the worker concerning the video lineup on the ground that it was testimony about a matter not in evidence. The State explained that it was attempting to lay a predicate to introduce the tape in evidence, and the trial court overruled appellant=s objection. Appellant cross-examined the worker without restriction concerning his original description of appellant and his identification of appellant in the video lineup. Appellant did not make any further objections concerning the worker=s identification testimony. The videotape was later admitted into evidence, also without objection. A party must make a timely and specific objection, request, or motion at trial to preserve error for appellate review. Tex. R. App. P. 33.1(a). Consequently, a defendant waives any complaint on appeal concerning his constitutional right to cross-examine and confront witnesses if he does not lodge a proper and timely objection at trial. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). Unless apparent from the context, an objection must be made with sufficient specificity to apprise the trial court of the complaint. Young v. State, 826 S.W.2d 141, 150 (Tex. Crim. App. 1991). At no point did appellant object on the grounds that the witness=s testimony amounted to a violation of his right to confrontation, and appellant=s objection to the witnesses=s testimony on direct-examination regarding the video was not sufficient to apprise the trial court of appellant=s Sixth Amendment complaint. Therefore, appellant waived any error. Moreover, even if appellant preserved error, he was not deprived of his constitutional right to confront and cross-examine witnesses. The Sixth Amendment=s Confrontation Clause grants a criminal defendant the right to cross-examine those who testify against him at trial. U.S. Const. amend. VI; Tennessee v. Street, 471 U.S. 409, 414 (1985) (citing Douglass v. Alabama, 380 U.S. 415, 418 (1965)). The Confrontation Clause does not bar the admission of a witnesses=s prior statements when the witness is available at trial to defend or explain himself. Id.; California v. Green, 399 U.S. 161, 164 (1970). Here, the witness was available at trial, and no restrictions were placed on appellant=s cross-examination of the witness concerning the videotape or otherwise. Therefore, appellant=s Sixth Amendment right to confrontation was not violated. Accordingly, we overrule appellant=s first issue. III. Jury Charge In his second issue, appellant contends that the trial court erred by coercing the jury to return a punishment verdict in the aggravated sexual assault case. After approximately five hours of deliberation, the jury informed the trial court that it could not reach a decision on punishment for one of the charges because two jurors were unwilling to negotiate. The jury requested further instructions, and the trial court gave a supplemental AAllen@ or Adynamite@ charge instructing the jury to continue deliberations.[1] Appellant did not object to the trial court=s supplemental instructions at trial. Nonetheless, appellant contends that the instructions caused harm so egregious that it deprived him of a fair and impartial punishment hearing. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (holding that when there is no objection at trial, reversal is required if appellant shows egregious harm resulted from error in the jury charge). The use of a supplemental Allen charge has long been upheld by federal and Texas courts. See Allen v. United States, 164 U.S. 492, 501B02 (1896); Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996); Willis v. State, 761 S.W.2d 434, 437B38 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d). To determine the propriety of an Allen charge, we consider whether it had a coercive effect on juror deliberation, in context and under all circumstances. Howard, 941 S.W.2d at 123. Appellant argues that the Allen charge improperly encouraged the jurors to negotiate. In some contexts, identifying and addressing jurors with minority viewpoints can be coercive. Id. at 124. However, here, the trial court=s information as to the two jurors Aunwilling to negotiate@ was from an unsolicited note from the jury. The trial court did not attempt to identify the two jurors, and the Allen charge was addressed to the jury as a whole. See id. (finding no error when the trial court=s information as to the numerical division of the jury was unsolicited and no attempt was made to probe the jury or identify jurors with minority viewpoints). In addition, the trial court specifically instructed the jurors to continue deliberations in an effort to arrive at a verdict acceptable to all jurors. The trial court also cautioned the jurors not to arrive at a verdict unless they could agree without doing violence to their consciences. See id. (finding no error in a similarly worded charge). Appellant also argues that the trial court=s Allen charge misled the jury into believing that Athe entire case may or may not be retried.@ However, here, the trial court first accepted the jury=s verdict on the aggravated assault charge, and then specifically stated that the further instructions were Aregarding the other charge.@ Therefore, there is no indication that the jury would have believed that failure to reach a verdict on the aggravated sexual assault charge would result in a mistrial with respect to both charges. Moreover, informing the jury that a mistrial may result is not, of itself, coercive. Stanton v. State, 535 S.W.2d 182, 184 (Tex. Crim. App. 1976); Arrevalo v. State, 489 S.W.2d 569, 570B72 (Tex. Crim. App. 1973); see Howard, 941 S.W.2d at 124B25 (rejecting appellant=s argument that the Allen charge given at punishment phase was coercive because the jury Amight erroneously assume that failure to agree would result in an entirely new trial@). Because the Allen charge was not coercive on its face, and appellant did not file a motion for a new trial or otherwise develop a record showing that the jury was coerced in fact, we overrule appellant=s second issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Opinion filed April 20, 2006. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The instructions were as follows: Ladies and gentlemen, regarding the other charge, I=m going to give you what is known as an Allen charge. I=m going to read it to you. >Members of the jury 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 the jury. This matter will still be pending and it is reasonable to assume that the jury C that the case will be tried again before another jury at some future time. Any such future jury will be impaneled in the same way this jury has been impaneled 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 questions confronting you, and there is no reason to hope that the next jury will find these questions any easier to decide than you have found them. 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 conscious (sic).=