                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00330-CR

BRITT LEE MILLER                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE
                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1456595D

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      Appellant Britt Lee Miller appeals from his convictions for three counts of

aggravated robbery and concurrent, thirty-year sentences.       In a single point,

Miller argues that the trial court abused its discretion by denying his motion for

mistrial after the jury indicated it could not reach a unanimous verdict. Because

the trial court appropriately exercised its discretion by denying Miller’s mistrial

motion, we affirm the trial court’s judgments.


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       See Tex. R. App. P. 47.4.
      On April 19, 2016, a man wearing a mask with no gloves entered a Family

Dollar store and robbed two employees and a customer at gunpoint. During the

robbery, the man placed his left hand on a credit-card payment machine near the

cash register. Miller was later arrested for the robbery, and his fingerprints were

matched to those taken from the credit-card machine.        A grand jury indicted

Miller with three counts of aggravated robbery.      See Tex. Penal Code Ann.

§ 29.03(a)(2) (West 2011). Miller’s trial lasted approximately three hours during

which he attacked the credibility of the fingerprint expert and pointed out

testimony inconsistencies about the appearance of the gun used by the robber.

      The jury began deliberating at 9:14 a.m. on the second day of trial. After

the jury returned from lunch at 1:01 p.m., the foreperson sent a note to the trial

court: “The jury is at an impasse. We are split 9-3.” The trial court responded in

writing, “Please continue with your deliberations.” At 2:42 p.m., the foreperson

again notified the trial court of the jury’s “impasse”: “Still at an impasse. No

movement at all.     Same folks holding to their objections from the majority

position.” The trial court gave the jury an Allen or dynamite charge:

      You are instructed that in a large proportion of cases absolute
      certainty cannot be expected. Although the verdict must be the
      verdict of each individual juror, and not a mere acquiescence in the
      conclusion of other jurors, each juror should show a proper regard to
      the opinion of the other jurors.

            You should listen, with a disposition to being convinced, to the
      arguments of the other jurors. If a large number of jurors are for
      deciding the case one way, those in the minority should consider
      whether they are basing their opinion on speculation or guesswork,
      and not on the evidence in the case. Those in the minority should


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      keep in mind the impression the evidence has made on a majority of
      the jurors who are of equal honesty and intellect as the minority.

              ....

            With this additional instruction, you are instructed 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.

See generally Allen v. United States, 164 U.S. 492, 501–02 (1896) (approving

supplemental jury charge, instructing jurors to be open and deferential to each

other’s opinions).    The record does not reflect whether there were any

discussions about or objections to the trial court’s responses

      At 3:47 p.m., the foreperson sent another note to the trial court: “Would

appreciate a break (hopefully for the evening) before we resume deliberations.

The status quo remains.” Miller then moved for a mistrial based on the three

notes indicating that the jury was deadlocked. The trial court denied the motion

“due to the wording of this note, which clearly implies they are deliberating

because it states ‘Before we resume deliberations.’” The trial court sent the jury

home and directed them to return the next morning to resume deliberations. The

next day, the jury deliberated for approximately thirty minutes before informing

the trial court that it had reached a unanimous verdict: guilty of each count. In

total, the jury had deliberated for approximately six hours.           The trial court

assessed Miller’s punishment at concurrent thirty-year sentences.

      We review the trial court’s ruling on Miller’s mistrial motion for an abuse of

discretion.   See Rosales v. State, Nos. 14-16-00764-CR, 14-16-00766-CR,


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2018 WL 1866026, at *3 (Tex. App.—Houston [14th Dist.] Apr. 19, 2018, no pet.

h.). A trial court has the discretion to discharge a jury “where it has been kept

together for such time as to render it altogether improbable that it can agree”;

however, there is no limit to the length of time a jury may deliberate. Tex. Code

Crim. Proc. Ann. art. 36.31 (West 2006); see Melancon v. State, 66 S.W.3d 375,

383 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (en banc op. on reh’g).

The length of time a jury may be held to deliberate is a discretionary

determination that accounts for the nature of the case and the evidence to be

considered. See Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989).

      Here, the main evidence specifically linking Miller to the robberies was the

fingerprint evidence, which Miller strongly contested during the trial.        The

eyewitnesses gave differing accounts of the appearance of the gun used in the

robbery or whether it could have been a toy gun. During its deliberations, the

jury requested to see the fingerprint cards, the surveillance video of the robbery,

and a portion of one of the employee’s testimony. We cannot say that denying

Miller’s mistrial motion under these facts, especially when the final note did not

reflect that the jurors were hopelessly deadlocked, was an abuse of discretion.

See Camarillo v. State, No. 05-16-00925-CR, 2018 WL 490913, at *6–7 (Tex.

App.—Dallas Jan. 19, 2018, pet. filed) (mem. op., not designated for publication);

Katzenberger v. State, 439 S.W.3d 566, 570–71 (Tex. App.—Houston [14th Dist.]

2014, pet. ref’d); Moses v. State, No. 14-99-00377-CR, 2004 WL 78162, at *1–2




                                        4
(Tex. App.—Houston [14th Dist.] Jan. 20, 2004, no pet.) (mem. op., not

designated for publication); Melancon, 66 S.W.3d at 384.

      Miller also seems to assert that the trial court’s dynamite charge was

unduly coercive because it suggested to the minority jurors that they were relying

on “speculation” or “guesswork” and was, therefore, an abuse of discretion. The

language included in the trial court’s supplemental charge here has expressly

been held to not be coercive. See Allen, 164 U.S. at 501–02; see also Johnson

v. State, No. 02-11-00516-CR, 2013 WL 43990, at * 1–3 (Tex. App.—Fort Worth

Jan. 4, 2013, no pet.) (mem. op., not designated for publication); West v. State,

121 S.W.3d 95, 107–09 (Tex. App.—Fort Worth 2003, pet. ref’d).            Miller’s

arguments do not persuade us to stray from these precedents.

      For these reasons, we overrule Miller’s sole point and affirm the trial

court’s judgments. See Tex. R. App. P. 43.2(a).


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 7, 2018




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