Opinion issued May 30, 2013




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-11-01114-CR
                           ———————————
                      JOHN JAMES SMITH, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1234109



                         MEMORANDUM OPINION

      A jury convicted appellant, John James Smith, of the first-degree felony

offense of aggravated robbery.1 After the trial court found the allegations in two


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
enhancement paragraphs true, it assessed punishment at forty-five years’

confinement. In four issues, appellant contends that the trial court erroneously:

(1) gave an unrequested Allen charge, which coerced the jury into arriving at a

guilty verdict; (2) gave an unrequested Allen charge in violation of Code of

Criminal Procedure article 36.16; (3) failed to instruct the jury “on the factual issue

of eyewitness identification”; and (4) allowed a witness to make an in-court

identification of appellant after participating in an impermissibly suggestive pre-

trial identification procedure.

      We affirm.

                                    Background

      Shami Campbell worked as a cashier at an Exxon station on the Eastex

Freeway in northeast Harris County. On September 24, 2009, she was working the

night shift with the store manager, Huelon Houston, when two men came into the

convenience store together. Campbell identified appellant in court as one of the

men. Appellant paced around one side of the store while his companion, later

identified as Joseph Johnson, searched for something to purchase. After the other

customers in the store left, Johnson approached the cash register to purchase a bag

of chips. Johnson then decided that he wanted to purchase something else. As

Campbell opened the register to ring up this second purchase, appellant ran behind

the counter, placed Campbell in a chokehold, pressed a knife to her neck, and told

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her not to move. Appellant and Johnson took the money located in the register,

and appellant threw Campbell to the ground and again told her not to move.

Appellant and Johnson then ran out of the store.

      Right after appellant and Johnson fled the store, Houston came inside and

Campbell told him that the store had been robbed.          Houston called 9-1-1.

Campbell never looked at any lineups or photo-arrays prepared by the police to

identify appellant, but she did watch the store’s security footage before she went

home that evening.

      Huelon Houston testified that he was standing outside taking a cigarette

break when the robbery occurred. Appellant and Johnson were already in the store

when Houston went outside, and Houston stated that nothing unusual was

occurring in the store when he left. Houston remained outside for three or four

minutes. He was walking back into the store when he saw appellant and Johnson

running from the store. The men paused to look at Houston, and Houston took

note of the license plate number of their vehicle. Houston then entered the store,

and Campbell reported that she had just been robbed.

      When Harris County Sheriff’s Department Deputy M. Gustafson arrived at

the Exxon station, Houston showed him the surveillance footage of the incident

and gave him the license plate number that he had written down.            Deputy

Gustafson then left the station. He returned about an hour later with appellant and

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Johnson in the back seat of his patrol car, and he asked Houston if the men fit the

description of the robbers. Houston identified the men as the same men he had

seen running from the store and getting into a vehicle. At trial, Houston testified

that appellant “looks familiar” but that he also “looks very different today.” 2 He

stated that he was positive that the men that Deputy Gustafson brought back to the

store were the same men that he had previously seen fleeing the store. Defense

counsel did not object to Houston’s testimony concerning Deputy Gustafson’s

actions in bringing appellant and Johnson back to the store for identification

purposes, and he did not object to Houston’s in-court identification of appellant.

Instead, defense counsel questioned Houston concerning this encounter with

appellant, Johnson, and Deputy Gustafson on cross examination.

      Deputy Gustafson testified that he spoke with Campbell and Houston upon

arriving at the store. Deputy Gustafson used the license plate number that Houston

had obtained to determine a possible address for the suspects, and he drove over to

this address and parked a few houses away. He waited for around thirty or forty-

five minutes before a vehicle matching the description and license plate number

that Houston had provided arrived at the house. Deputy Gustafson then brought

appellant and Johnson back to the Exxon station. Houston had the opportunity to


2
      Shami Campbell and Deputy Gustafson agreed with Houston that appellant looked
      different than he had on the night of the robbery. Specifically, all three witnesses
      testified that appellant had gained weight.
                                           4
look at the men, and he identified them as the men who had robbed the store.

While Deputy Gustafson was waiting for appellant and Johnson, Campbell had

gone home, so she was not present when Gustafson arrived back at the Exxon

station for Houston’s identification. Defense counsel did not object to Deputy

Gustafson’s testimony concerning Houston’s viewing of the suspects while they

were in the back of the police car.

      After the jury had been deliberating for several hours, it sent a note to the

trial court stating, “What do we do if we don’t all agree and are not going to come

to a unanimous decision[?]” The trial court proposed giving an Allen charge, and

defense counsel did not object on any grounds. The court then read the following

response to the jury:

      It would be necessary for the Court to declare a mistrial if the jury
      found itself unable to arrive at a unanimous verdict after a reasonable
      length of time; the indictment would still be pending, and it is
      reasonable to assume the case will be tried again with the same
      questions to be determined by another jury and with no reason to hope
      such other jury would find the questions any easier to decide.
      The length of time the jury would be required to deliberate is within
      the discretion of the Court and the Court does not at present feel the
      jury has deliberated a sufficient length of time to fully eliminate the
      possibility of its being able to arrive at a verdict.
      Please continue your 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.

Shortly over an hour later, the jury reached a verdict and found appellant guilty of

aggravated robbery. The trial court subsequently found the allegations in two
                                         5
enhancement paragraphs true and assessed punishment at forty-five years’

confinement.

                                     Allen Charge

      In his first issue, appellant contends that the trial court erroneously gave an

unrequested Allen charge “to a deliberating non-deadlocked jury which had the net

effect of coercing the jury into arriving at a guilty verdict.”

      A.     Giving of Allen Charge

      Both the United States Supreme Court and the Court of Criminal Appeals

have accepted the use of a supplemental Allen charge. See Allen v. United States,

164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896); Howard v. State, 941 S.W.2d

102, 123 (Tex. Crim. App. 1996). In Allen, the Supreme Court approved the use of

supplemental jury instructions to encourage a deadlocked jury to continue

deliberating in order to reach a verdict if the jurors could do so without violating

their consciences. See Allen, 164 U.S. at 501, 17 S. Ct. at 157. The Court of

Criminal Appeals has defined an Allen charge as a “supplemental charge

sometimes given to a jury that declares itself deadlocked.” Barnett v. State, 189

S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006).                This supplemental charge

“reminds the jury that if it is unable to reach a verdict, a mistrial will result, the

case will still be pending, and there is no guarantee that a second jury would find

the issue any easier to resolve.” Id.

                                            6
      When reviewing an Allen charge, the “primary inquiry” is to determine the

charge’s “coercive effect on juror deliberation, ‘in its context and under all

circumstances.’” Howard, 941 S.W.2d at 123 (quoting Lowenfield v. Phelps, 484

U.S. 231, 237, 108 S. Ct. 546, 550 (1988)); Freeman v. State, 115 S.W.3d 183,

186–87 (Tex. App.—Texarkana 2003, pet. ref’d). A charge that speaks to the jury

as a whole, instead of specifically addressing a minority of the jurors, and that

encourages jurors to re-examine their views and change their opinions without

“surrendering honest convictions” is not coercive on its face.         Freeman, 115

S.W.3d at 187.

      To preserve error concerning the submission of an Allen charge, the

defendant must object to the submission of the supplemental charge. See Thomas

v. State, 312 S.W.3d 732, 740 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)

(“There is no evidence in the record that appellant objected to the submission of

this [Allen] charge. Appellant has, therefore, waived any error with respect to the

trial court’s decision to deliver the Allen charge.”); see also TEX. R. APP. P.

33.1(a)(1)(A) (providing that, to preserve error, complaining party must make

complaint to trial court by timely request, objection, or motion that states grounds

for ruling sought with sufficient specificity to make trial court aware of complaint).

      Here, the jury sent a note to the trial court asking, “What do we do if we

don’t all agree and are not going to come to a unanimous decision[?]” In response,

                                          7
the trial court proposed giving an Allen charge. Defense counsel did not object.

We therefore conclude that because defense counsel did not object to the

submission of the Allen charge, appellant failed to preserve for appellate review his

complaint that the Allen charge was unduly coercive. See Thomas, 312 S.W.3d at

740.

       We overrule appellant’s first issue.

       B.    Violation of Article 36.16

       In his second issue, appellant contends that, in giving an Allen charge, the

trial court violated Code of Criminal Procedure article 36.16.

       Code of Criminal Procedure article 36.16 provides:

       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, and in the event of such further
       charge, the defendant or his counsel shall have the right to present
       objections in the same manner as is prescribed in Article 36.15.

TEX. CODE CRIM. PROC. ANN. art. 36.16 (Vernon 2006).

       To preserve an article 36.16 complaint for appellate review, the defendant

must object at trial on the basis that the submission of an Allen charge would

violate article 36.16. See Loving v. State, 947 S.W.2d 615, 619 (Tex. App.—

Austin 1997, no pet.); see also Bledsoe v. State, 21 S.W.3d 615, 622 (Tex. App.—

Tyler 2000, no pet.) (citing Loving and holding that complaint that trial court

violated article 36.16 was not preserved when trial objection “did not implicate
                                          8
article 36.16” but instead merely argued that portion of proposed Allen charge was

improper); Duc Vu v. State, 750 S.W.2d 8, 10 (Tex. App.—Texarkana 1988, pet.

ref’d) (“An objection to a failure to follow statutory procedures is necessary to

preserve a claimed error when the court gives an Allen charge to a deadlocked

jury.”).

       As mentioned above, defense counsel did not object on any ground when the

trial court gave the jury a supplemental Allen charge. Thus, appellant also failed to

preserve his complaint that the trial court violated article 36.16 when it gave the

Allen charge.3 See Bledsoe, 21 S.W.3d at 622; Loving, 947 S.W.2d at 619.

       We overrule appellant’s second issue.

                    Eyewitness Identification Jury Instruction

       In his third issue, appellant contends that the trial court committed

fundamental error when it failed to include in the written charge an instruction “on

the factual issue of eyewitness identification.”

3
       We note that, in Loving, defense counsel objected that the Allen charge given by
       the trial court was “premature and coercive” because the jury had deliberated for
       less than five hours and “had not indicated it was in disagreement or deadlocked in
       reaching a verdict.” Loving v. State, 947 S.W.2d 615, 619 (Tex. App.—Austin
       1997, no pet.). The Austin court noted that “[m]any courts believe an Allen charge
       is less coercive if submitted before a jury comes to an impasse in reaching a
       verdict and thus have expressed a preference for the trial court to give the charge
       before a jury deadlocks.” Id. The court ultimately concluded that “the trial court
       did not err in giving the Allen charge before the jury indicated it was unable to
       reach a verdict and deadlocked.” Id. at 620; see also Love v. State, 909 S.W.2d
       930, 937 (Tex. App.—El Paso 1995, pet. ref’d) (finding “no authority condemning
       the issuance of the ‘Allen’ type instruction in the court’s main [punishment]
       charge” presented to jury before punishment-phase deliberations began).
                                            9
      We use a two-step process in reviewing jury charge error. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists

in the charge. Id. If error does exist, we review the record to determine whether

the error caused sufficient harm to require reversal of the conviction. Id. When, as

here, the defendant fails to object, or states that he has no objection to the charge,

we will not reverse for jury charge error unless the record shows “egregious harm”

to the defendant. Id. at 743–44.

      In each case, the trial court shall deliver to the jury a written charge that sets

forth the law applicable to the case and does not express “any opinion as to the

weight of the evidence,” does not sum up the testimony, and does not discuss the

facts of the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). It is

erroneous for the trial court to give a jury instruction that “instructs a jury on the

weight to be given certain testimony.” Russell v. State, 749 S.W.2d 77, 78 (Tex.

Crim. App. 1988). The Court of Criminal Appeals has previously rejected jury

instructions on issues such as misidentification, concluding that it would be

erroneous for the trial court to “single out the facts concerning [an eyewitness’s]

identification of [the defendant] and magnify them before the jury.” See, e.g.,

Waller v. State, 581 S.W.2d 483, 484 (Tex. Crim. App. 1979); see also Roberson v.

State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993) (“[T]his Court has held that a

charge on mistaken identity is an improper comment on the weight of the evidence

                                          10
and should not be given.”); Laws v. State, 549 S.W.2d 738, 740 (Tex. Crim. App.

1977) (“Appellant requested the court to instruct the jury that if they had a

reasonable doubt that appellant had been mistakenly identified to find him not

guilty. The court did not err in refusing to submit the instruction because it would

have been singling out particular parts of the testimony.”).

      Appellant contends that the trial court should have given an instruction on

“eyewitness identification” that tracks the pattern jury instruction recommended

for federal district courts in the Fifth Circuit. Specifically, appellant contends for

the first time on appeal, that the trial court should have given an instruction similar

to the following:

      The burden is on the State to prove beyond a reasonable doubt not
      only that the offense was committed as alleged in the indictment, but
      that the defendant was the person who committed it.
      In considering whether or not the State has proved beyond a
      reasonable doubt that the defendant is the person who committed the
      offense you may consider any one or more of the following:
      1.     The witness’ opportunity to observe the criminal acts and the
             person committing them[,] including the length of the
             encounters, the distance between the various parties, the
             lighting conditions, the witness’ state of mind at the time of the
             offense, and other circumstances affecting the witness’
             opportunity to observe the person committing or persons
             committing the offense that you deem relevant.
      2.     Any subsequent identification, failure to identify or misidentify
             by the witness, the circumstances surrounding the
             identification, the certainty or lack of certainty expressed by the
             witness, the state of mind of the witness at the time and other


                                          11
             circumstances bearing on the reliability of the witness’
             identification that you deem relevant.
      3.     Any other direct or circumstantial evidence which may identify
             the person or persons who committed the offense charged or
             corroborate or negate the identification by the witness.
      You must be satisfied beyond a reasonable doubt of the accuracy of
      the identification of the defendant before you may convict him. If the
      circumstances of the identification of the defendant are not convincing
      to you beyond a reasonable doubt, you must find the defendant not
      guilty.

      The requested jury instruction in this case is similar to the requested

instructions in Roberson, Waller, and Laws. As the Court of Criminal Appeals

concluded in those cases, we conclude that the requested instruction singles out

evidence relating to the identification of appellant and constitutes an improper

comment on the weight of the evidence.          See Roberson, 852 S.W.2d at 511;

Waller, 581 S.W.2d at 484; Laws, 549 S.W.2d at 740. We therefore hold that the

trial court did not commit error by failing to submit this instruction.

      We overrule appellant’s third issue.

                        Pre-trial Identification Procedure

      Finally, in his fourth issue, appellant contends that the trial court erroneously

allowed the complainant to make an in-court identification of appellant that was

the product of an impermissibly suggestive pre-trial identification procedure.

      A pre-trial identification procedure may be so suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny

                                          12
the defendant due process of law. Barley v. State, 906 S.W.2d 27, 32–33 (Tex.

Crim. App. 1995) (citing Stovall v. Denno, 388 U.S. 293, 301–02, 87 S. Ct. 1967,

1972 (1967)); Page v. State, 125 S.W.3d 640, 646 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d). We conduct a two-step analysis to determine the admissibility of

the in-court identification of the accused:           (1) whether the out-of-court

identification procedure was impermissibly suggestive; and (2) whether that

suggestive procedure “gave rise to a very substantial likelihood of irreparable

misidentification.” Barley, 906 S.W.2d at 33 (citing Simmons v. United States, 390

U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). The defendant bears the burden of

establishing, by clear and convincing evidence, that the pre-trial identification

procedure was impermissibly suggestive. Page, 125 S.W.3d at 647.

      The Court of Criminal Appeals has also held, however, that “the failure of

the appellant to complain or object in the trial court about the out of court

identification procedure or the in court identifications constitute[s] a procedural

default . . . .” Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986). In

Perry, the Court of Criminal Appeals noted that the appellant failed to object or

complain in the trial court about the out-of-court identification procedure or the in-

court identification, and he also “failed to show any justification, cause, or excuse

for his failure to complain or object in the trial court.”      Id. The court thus

concluded that Perry waived any error concerning the out-of-court identification

                                         13
procedure and the admission of the in-court identifications. Id.; Rodriguez v. State,

975 S.W.2d 667, 673 (Tex. App.—Texarkana 1998, pet. ref’d) (“Failure to object

to out-of-court identification procedures waives error.”); Van Zandt v. State, 932

S.W.2d 88, 94 (Tex. App.—El Paso 1996, pet. ref’d) (“Without an objection to an

in-court identification or to testimony based on an impermissibly suggestive

identification procedure, no error is preserved.”).

      Here, both Houston and Deputy Gustafson testified, without objection, as to

the out-of-court procedure that Gustafson used to obtain Houston’s identification

of appellant and Johnson on the evening of the robbery. Defense counsel also

questioned both witnesses on cross-examination concerning this procedure.

Defense counsel did not object when the State asked Houston at trial if he could

recognize anyone in the courtroom as one of the men who robbed the store; nor did

he object when Houston testified that appellant “looks familiar.” Furthermore,

although defense counsel filed a pre-trial motion to suppress other evidence, he did

not move to suppress any identification testimony on the ground that the out-of-

court identification procedure was impermissibly suggestive. See Green v. State,

835 S.W.2d 142, 145 (Tex. App.—Corpus Christi 1992, no pet.) (holding that pre-

trial motion to suppress that raised suggestibility of identification procedure and

was carried with case properly preserved issue for appellate review).




                                          14
      We therefore conclude that because appellant did not object to either the out-

of-court identification procedure or to Houston’s in-court identification of

appellant, he failed to preserve his complaint that the out-of-court procedure was

impermissibly suggestive for appellate review.

      We overrule appellant’s fourth issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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