      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00067-CR



                                    Zachary Jones, Appellant

                                                 v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
       NO. 2011046, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               Zachary Jones was convicted of the state-jail felony of possessing a controlled

substance, cocaine, in an amount less than one gram after his plea of guilty. See Tex. Health &

Safety Code Ann. § 481.112(a), (b) (West 2003). Two enhancement paragraphs of the indictment

charged that Jones had been convicted on prior occasions of the felony of possession of cocaine. See

Tex. Pen. Code Ann. § 12.42(a)(2) (West Supp. 2004). The jury found the enhancement paragraphs

true and sentenced Jones to confinement for ten years. In nine points of error, Jones challenges

rulings and limitations set by the judge during voir dire, a comment made by the trial judge in the

presence of the jury, and oral and written supplemental instructions the judge gave to the jury

regarding its deliberations. For the reasons that follow, we affirm the judgment of the trial court.
                                         BACKGROUND

               Jones was charged with possession of less than a gram of cocaine, a state-jail felony

punishable by 180 days to two years in state jail. See Tex. Health & Safety Code Ann. § 481.112(a),

(b); Tex. Pen. Code Ann. § 12.35 (West 2003). Because Jones had been previously convicted of two

non-state-jail felonies (both for possession of cocaine), the indictment contained enhancement

paragraphs alleging these two prior convictions. If found true, the enhancement paragraphs would

increase Jones’s punishment range to two to twenty years in the institutional division of the Texas

Department of Criminal Justice. See Tex. Pen. Code Ann. § 12.33(a) (West 2003), § 12.42(a)(2)

(West Supp. 2004). The case was set for trial, a jury was convened, and voir dire commenced. After

the jury was selected, Jones pled guilty in the presence of the jury. The court accordingly instructed

the jury to find Jones guilty of the offense, and the jury returned a guilty verdict, ending the guilt-

innocence phase of the trial. The trial then proceeded on the punishment issue because Jones had

elected to have the jury determine his punishment. After hearing evidence, the jury found that the

enhancement charges were true and assessed a punishment of ten years’ imprisonment. Jones

appeals both his conviction and sentence.1




       1
          Although Jones’s prayer for relief asks that the conviction be set aside, because he pled
guilty and because his points of error relate only to the punishment assessed, we will address only
the sentence.

                                                  2
                                            DISCUSSION

Errors relating to voir dire

                In points of error one through five, Jones challenges the district court’s limitations

upon his voir dire questioning and its overruling of his motion for mistrial based on the limitations.

Jury voir dire serves two primary purposes: (1) to discover if a venire member has such bias or

prejudice as to be challengeable for cause, and (2) to aid the attorneys in intelligently exercising their

peremptory strikes. See Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002). We review a

trial court’s rulings on particular voir dire questions under an abuse-of-discretion standard. Id. at

38. A trial court abuses its discretion only when a proper question about a proper area of inquiry is

prohibited. Id. A question is proper if it seeks to discover a juror’s views on an issue applicable to

the case. Id. An otherwise proper question is impermissible, however, if it attempts to commit the

juror to a particular verdict based on particular facts or is so vague or broad in nature as to constitute

a “global fishing expedition.” Id. at 38-39. If a trial court errs by preventing the asking of a proper

question during voir dire, the appellate court conducts a harmless-error review. Gonzales v. State,

994 S.W.2d 170, 171-72 (Tex. Crim. App. 1999); see Tex. R. App. P. 44.2(a). Under harmless-error

review, the court of appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction or

punishment. Tex. R. App. P. 44.2(a).

                Jones’s first point challenges the trial court’s limitation of his questioning venire

members about their experiences with drug abuse or abusers. Initially, Jones’s trial counsel raised

the subject of drug use by asking venire member Herrera, “Do you know anybody that uses drugs?”



                                                    3
After Herrera responded that he knew people who formerly used drugs, defense counsel probed

further: “Tell me about your experience with those people. How did that affect their lives?” Herrera

answered that drugs affected those people’s lives “in a bad way,” and he and defense counsel

continued to converse about the subject. Defense counsel then moved on to venire member Frager:

“[T]ell me about your experience or someone you know their experience with drugs.” The State

objected to the question as improper voir dire. Defense counsel responded, “I should be allowed to

ask this juror whether he knows or whether he’s had any experience with drugs that might affect his

decision and his ability to be a fair and impartial juror in this case.” The court allowed defense

counsel to ask the amended question, which inquired whether experience with drugs would affect

the juror’s ability to be fair. After a short exchange about the importance of being fair, defense

counsel asked Frager if he knew anybody with a drug problem, to which Frager replied, “No.”

Defense counsel then asked venire member Hardin, “Do you know anybody that’s had a drug

problem?” After Hardin replied that he did, defense counsel asked him, “Tell me about that.” Again

the State objected. The court replied that if the question included the query as to whether the

experience would affect his ability to be fair, then it would be proper. Defense counsel amended his

question to include the fairness inquiry and continued to speak with Hardin, as well as several other

venire members on the subject of drug use.

               The State asserts on appeal, as it did in the trial court, that Jones’s questions asking

the venire members to “tell [him] about [their] experience with drugs” or people with drug problems

were improper questions because they were overbroad. We agree. Although the substance of his




                                                  4
questions sought information about an issue relevant to the case—namely the venire members’

prejudices about people who use drugs—the form of the questions was improper. By wording the

questions with the open-ended phrase, “Tell me about . . . ,” defense counsel invited narrative

responses that potentially could have been lengthy, irrelevant, or prejudicial. These questions are

like other questions that have been held to be overly broad. See Boyd v. State, 811 S.W.2d 105, 119-

20 (Tex. Crim. App. 1991) (improperly broad to ask “What I’m basically asking you is what you as

a layman think is a case that is proper for the death penalty to be imposed?”); Smith v. State, 703

S.W.2d 641, 645 (Tex. Crim. App. 1985) (improperly broad to ask venire members what “their

thoughts” were on insanity defense). To have been proper, defense counsel’s questions should have

sought more directed responses on the subject of venire members’ experience with drug use. See

Barajas, 93 S.W.3d at 39 (Tex. Crim. App. 2002) (trial court may, within its discretion, require that

parties phrase questions in way that is precise enough to glean relevant information from venire

member’s answer).

               Even if the questions Jones sought to ask were proper, we conclude that the court’s

limitation on them did not constitute reversible error. Jones specifically complains about five venire

members whose questioning about drugs was limited. Venire member Hardin answered the amended

question by stating that he viewed drug problems as an illness and indicated that rehabilitation was

possible (“to recreate the norm, you have to remove the chemical, change the environmental stimulus

that created the situation in the beginning and then the person has an opportunity”). Hardin’s answer

was plausibly favorable to the defense. Venire member Booher simply answered “No” to the




                                                  5
question of whether she had had any experience with drugs that would affect her ability to be fair.2

The third venire member, Frager, stated that he did not know anyone who had had a drug problem.

The restriction of the question to how one’s experiences with drugs or drug addicts might affect his

ability to be fair could not have contributed to the sentence with respect to this jury member. The

fourth venire member, Buggs, answered the questions, “do you think that drugs are an illness?” and

“tell me about [your experiences with drug illnesses]” as it affected her ability to be fair. Her

responses, however, did not indicate a tendency to be heavy on punishment. If anything, her

responses were equivocal: “I don’t think that it would affect my ability to be fair. . . . I really believe

rehabilitation can work. . . . I also think that prison sometimes works. . . . So I’m not definite on

one side or the other. In the cases that I’ve seen [her cousin and her sister], neither one had to go to

jail.” The fifth venire member, Galvan, replied as equivocally as Buggs (“I could definitely look at

the low spectrum and the high spectrum depending on the facts of the case.”).

                 The only error Jones asserts here is that the trial court required him to amend his

question to ask whether the venire members’ drug experiences would affect their ability to be fair.

Reviewing the answers of jurors Buggs and Galvan to the question as amended, we conclude that

the limitation on the question did not affect Jones’s substantial rights.

                 Jones next asserts that the trial court prevented his proper questioning of venire

member Acosta. After Acosta mentioned that a repeat offender might be in need of a more severe




        2
            Neither Booher nor Hardin ultimately served on the jury.

                                                    6
punishment because he should have learned from his mistake the first time, Jones’s attorney

followed up by asking what she meant. He pursued this line of inquiry by first asking, “What do you

think affects a person’s ability to learn?” He then asked, “What do you think about how far someone

goes in school? Would that be important to you to know whether someone could learn?” The State

objected to the two questions as improper commitment questions. The court sustained the objection.

               Jones asserts that the questions were not improper because they were merely follow-

up questions seeking to ascertain what Acosta’s answer meant. Also, he asserts that the ruling

usurped his right to effectively exercise his peremptory strikes. We disagree.

               Commitment questions are those that commit a prospective juror to resolve, or refrain

from resolving, an issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d

177, 179 (Tex. Crim. App. 2001). Sometimes the law requires a certain type of commitment from

jurors, such as being able to consider the full range of punishment; such questions are therefore

proper, even though they are commitment questions. Id. at 181. However, if the law does not

require a commitment—such as whether a juror considers a particular type of evidence to be

mitigating—such questions are invariably improper. Id. A trial court does not abuse its discretion

by refusing to allow a defendant to ask venire members questions based on facts peculiar to the case

at trial, such as about particular mitigating evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim.

App. 1998). We conclude that here defense counsel’s questions were improper because they were

designed to bind the prospective juror to particular facts—that the defendant was not well-

educated—in an effort to commit her to taking a stance on whether that would be a mitigating factor




                                                  7
in the punishment.3 Thus, the trial court did not abuse its discretion in sustaining the State’s

objection. Jones’s second point is overruled.

                Jones’s third point challenges the trial court’s limitation of his questioning of venire

member Sagebiel about a defendant’s age and background. After a discussion with a few other

venire members about prior convictions and the role that one’s age plays, defense counsel posed the

following hypothetical to Sagebiel:


       Young woman, living with sister because father is in the penitentiary and mother has
       died of an overdose. Sister couldn’t get a job because she was born—she had
       difficulty getting a job because she was born with a birth defect. And other brothers
       and sisters are selling drugs and they learned that from their father. And so that this
       child, this little sponge that all this little kid knows from the time that they’re old
       enough to hear and understand words is about drugs and selling drugs and poverty.
       Do you think that that kid has the same understanding as the kids you’re talking
       about [who are past the age of ten]?


The State objected that this was again an improper commitment question, and the court sustained

the objection. Defense counsel pressed on: “Tell me, do you think that there are other things that

might impact a child’s understanding or perception of their options?” Again, the State objected as

an improper question, and the court sustained the objection. Jones asserts that the trial court

improperly prohibited him from asking these questions because defense counsel was trying to

understand what Sagebiel’s answers meant, and because the questions were proper as means to

enable him to effectively exercise his peremptory strikes.




       3
           Acosta did not ultimately serve on the jury.

                                                   8
               The first question, in the form of a hypothetical, was properly prohibited as an

improper commitment question. It conveyed to Sagebiel particular facts—a child growing up in a

poor family with drug problems and a dire future—in an effort to commit her to a determination that

such circumstances would be mitigating. The second question, seeking Sagebiel’s thoughts about

other things that might impact a child’s understanding, was properly prohibited as being overly broad

and vague. Like the question about venire members’ experiences with drugs or drug abuse, this

question was not “precise enough to glean relevant information from the venire member’s answer.”

Barajas, 93 S.W.3d at 39; see Smith v. State, 703 S.W.2d 641, 645 (Tex. Crim. App. 1985). Because

the questions were improper, we overrule Jones’s third point.

               In his fourth and fifth points of error, Jones asserts that the trial court reversibly erred

in overruling his motion for mistrial based on the voir dire limitations. Specifically, he asserts that

the limitations prevented him from adequately exploring the issues necessary to intelligently exercise

his peremptory challenges and thus violated the U.S. and Texas constitutions. See U.S. Const.

amend. V, VI, XIV; Tex. Const. arts. I, §§ 10, 19. A mistrial is an extraordinary measure used when

an error is so prejudicial that an impartial verdict cannot be reached. Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999). Because we have concluded that any error caused by the voir dire

limitations was not reversible error, we overrule Jones’s fourth and fifth points.


Court’s comment

               In point of error six, Jones challenges the trial court’s denial of his motion for mistrial

based on the court’s comment to the jury that the judge was surprised by Jones’s guilty plea. Before

the jury was convened for voir dire, Jones pled “not guilty” in the presence of the judge. Voir dire

                                                   9
was then conducted. After several jurors were excused and the remaining twelve jurors were

assembled in the courtroom for the beginning of the trial, the jury was sworn in and the prosecutor

read the indictment. The judge then asked Jones how he pled:


       Jones:        Guilty.

       The Court: I am sorry?

       Jones:        Guilty.

       The Court: You may be seated. Thank you. May I have the lawyers approach,
                  please?


After a bench conference outside the hearing of the jury, the judge instructed the jury:


       Ladies and gentlemen of the jury, that—that plea of guilty from Mr. Jones is—comes
       as a little bit of a—well, not a little bit, a lot—surprise to the Court. And what takes
       place at this point is that the Court has to prepare some written instructions for you
       and then you will return to the jury room with those instructions to arrive at a verdict.
       It will be based on defendant’s plea of guilty to the charges, as opposed to a not
       guilty plea. So the instructions that I will give you are going to be somewhat
       different than the instructions I had prepared in the event of a not guilty plea. So it’s
       going to take me a little bit of time to put those together. But the good news is, this
       phase of the trial is—is quite a bit shorter, the guilt-innocence phase of the trial.


                Outside the presence of the jury, defense counsel objected to the judge’s comment

about being surprised and requested a mistrial; the judge denied the mistrial but gave the jury the

following instruction to disregard:


       We’re almost ready for the reading of the Court’s charge [instructing the jury to find
       Jones guilty]. And there’s one thing I need to mention to you before we start that.
       And it’s basically an instruction that I’m going to give you that’s not in the charge.
       It’s just an additional verbal instruction. And that is, before the first break, after the

                                                  10
       defendant’s plea of guilty, the Court made a comment about being surprised. And
       you are instructed to completely disregard the Court’s comment about that. And you
       may not consider that comment for any purpose whatsoever in your deliberations,
       either in this part of the trial or in your deliberations in the punishment part of the
       trial. You’re not to consider that at all, has no bearing on the case. Does everybody
       understand that?


               To constitute reversible error, a comment by the trial judge to the jury must be

reasonably calculated to benefit the state or to prejudice the rights of the defendant. Becknell v.

State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986). The comment is to be considered from the

jury’s standpoint. Kincade v. State, 552 S.W.2d 832, 835 (Tex. Crim. App. 1977). To determine

whether the comment is either reasonably calculated to benefit the state or to prejudice the rights of

the defendant, an appellate court must first determine whether the trial court’s statement was material

to the case. Burge v. State, 443 S.W.2d 720, 724 (Tex. Crim. App. 1969); Clark v. State, 878

S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). A statement is material if it: (1) implies

approval of the state’s argument, (2) indicates any disbelief in the defense’s position, or (3)

diminishes the credibility of the defense’s approach to its case. See Clark, 878 S.W.2d at 226.

               Jones asserts that the judge’s statement about surprise at his guilty plea was material

because it diminished the credibility of his decision to “accept responsibility by pleading guilty” and

to argue leniency in sentencing on that basis. Jones cites as evidence of such materiality certain

jurors’ “reactions” to the comment noted on the record by defense counsel. However, in the context

of the trial at that point and considering the overall defense advanced, we hold that this comment did

not diminish Jones’s approach to the case. Although Jones’s trial counsel focused in voir dire

exclusively on punishment, rather than guilt-innocence, it is unlikely from the jurors’ perspectives



                                                  11
that Jones had any approach to the case. Defense counsel had not yet made any arguments or put on

any evidence. It is unlikely that Jones’s trial strategy—to accept responsibility—was prejudiced,

because nothing along those lines had yet been argued. Jones’s trial counsel argued in his opening

statement that the evidence would show Jones had accepted responsibility for the cocaine in this case

as well as the previous two occasions; that as a result of this arrest Jones had made a big change in

his life, getting sober and becoming involved in his two-year-old daughter’s life; and that Jones

himself had suffered a rough family life with an absentee, drug-addict father. However, Jones did

not present any evidence to substantiate counsel’s opening remarks. It is difficult to conclude that

the court’s comment diminished the credibility of an approach that was never developed at trial.

               Furthermore, even if we determined that the judge’s comment was material, any error

resulting from such a comment may generally be cured by an instruction to disregard. See Marks

v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981). We must presume that curative instructions

are efficacious. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial


       ought to be an exceedingly uncommon remedy for the residual prejudice remaining
       after objections are sustained and curative instructions given. . . . Only when it is
       apparent that an objectionable event at trial is so emotionally inflammatory that
       curative instructions are not likely to prevent the jury [from] being unfairly
       prejudiced against the defendant may a motion for mistrial be granted.


Id. at 698. In this case, we believe that the judge’s instruction to disregard his comment about

surprise cured any error that may have arisen. Although Jones argues that the instruction merely

compounded the prejudice by repeating the comment, we find that the instruction was specific to the

comment and mitigated its effect. In looking at the comment in light of the entire record, we cannot



                                                 12
say that the judge’s comment and subsequent failure to order a mistrial after the curative instruction

were reversible error. We therefore overrule Jones’s sixth point of error.


Supplemental jury instructions

               In points of error seven through nine, Jones asserts that the trial court erred in making

oral and written supplemental jury instructions and in overruling his motion for mistrial based on

the instructions. After six hours of jury deliberation on punishment, the court called the jury into the

courtroom because it had received word through the bailiff that the jury had reached a verdict. The

jury entered the courtroom, but the presiding juror remained behind. The trial court then had a bench

conference with the attorneys, indicating to them that the jury had communicated to the bailiff that

the presiding juror had reservations about the verdict and could not or would not go through with

it. The court then suggested two alternatives for dealing with the situation:


       The Court:      I’m going to ask the question: Has the jury reached a unanimous
                       verdict? And depending upon the answer to that, we either go
                       forward or we don’t go forward. If—if the answer is yes, certainly
                       both sides are entitled to a poll of the jury. But so—apparently, she
                       is teetering on whether that is her verdict or not. And the question is
                       going to be: Have you reached a unanimous verdict or not? It’s my
                       view that it’s better to ask that in the courtroom out here where she’s
                       not subject to pressure from the other 11 jurors in the jury room. An
                       alternative would be to send them back in the jury room and let us
                       know when they have a unanimous verdict. But it seems to me there
                       is more pressure on the one juror in that situation than when she has
                       to answer to the Court the question. But that—I mean, that’s just my
                       thinking. I will allow it.

       Defense:        I would request that they just be sent back, since she’s the foreperson
                       of the jury and has indicated through a communication to the bailiff
                       that she’s not certain of the verdict that she had previously apparently
                       agreed to with the other 12. That to have her in here, I think I

                                                  13
                         disagree with the Court would be coercive and that she would not feel
                         as free to—

       The Court:        Okay.


               The presiding juror then joined the rest of the jury in the courtroom to receive the

following instruction:


       [I]t has come to my attention that there is a question about whether the verdict is a
       unanimous verdict. As the instructions tell you, the verdict must be a unanimous
       verdict. It must be each individual’s verdict without exception. And so what I need
       you to do is retire again to the jury room and continue to deliberate, if you can, in an
       attempt to reach a unanimous verdict. You are to follow the instructions that I have
       given you in the charge. And if it’s necessary for you to communicate with me
       further, do so in the manner that the charge requires, which is in writing signed by the
       presiding juror. So please retire to the jury room and continue your deliberations at
       this point. Thank you.


               The jury again retired to deliberate, and shortly thereafter the court received a written

question signed by the presiding juror reading, “Can the presiding juror be changed?” The judge

prepared a written reply stating,


       The presiding juror you have elected will continue to be the presiding juror unless
       she resigns or refuses to serve as such. In the event that she should resign or refuse
       to continue to serve, the jurors may choose another presiding juror. Whether or not
       you elect a new presiding juror, your verdict must be unanimous.


               Jones’s seventh issue argues that the trial court’s oral instruction sending the jury

back to deliberate was erroneous because it was not written, was not in response to a written jury

request, and was coercive by assuming that a verdict had been reached when one had not and by




                                                  14
suggesting that the presiding juror was holding out. Specifically, Jones asserts that the oral

instruction violated articles 36.16 and 36.27 of the code of criminal procedure.4 See Tex. Code

Crim. Proc. Ann. arts. 36.16, .27 (West 1981). However, Jones did not preserve this error because

he did not object to the oral instruction at trial. See Brooks v. State, 967 S.W.2d 946, 950 (Tex.

App.—Austin 1998, no pet.). Rather, Jones appeared to agree with the court’s decision to choose

the alternative requested by defense counsel—to send the jury back for more deliberation. If this was

error, we will not reverse unless the error is so egregious and created such harm that the appellant

has not had a fair and impartial trial—in other words, unless there has been egregious harm.

Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985) (op. on reh’g); Brooks, 967

S.W.2d at 950. Errors that result in egregious harm are those that affect the essential dispute in a

case or disturb the basis of the defensive theory. Brooks, 967 S.W.2d at 950. In determining


       4
           Article 36.16 provides in relevant part:

           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 (West 1981). Article 36.27 provides in relevant part:

           When the jury wishes to communicate with the court, it shall so notify the sheriff,
           who shall inform the court thereof. Any communication relative to the cause
           must be written, prepared by the foreman and shall be submitted to the court
           through the bailiff. The court shall answer any such communication in writing,
           and before giving such answer to the jury shall use reasonable diligence to secure
           the presence of the defendant and his counsel, and shall first submit the question
           and also submit his answer to the same to the defendant or his counsel . . . .

Id. art. 36.27 (West 1981).

                                                   15
whether egregious harm occurred, we must review the error in light of 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. Id.

               Based on the communication from the jury passed along to the court through the

bailiff, the court did not improperly “assume” that a verdict had been reached, despite Jones’s

argument to the contrary. Indeed, the final verdict form sentencing Jones to ten years’ imprisonment

contained the signature of the initial presiding juror, obliterated and re-signed by the new presiding

juror. This is strong evidence that the presiding juror at one point, likely before the communication

was sent through the bailiff, did reluctantly agree to the verdict. She then apparently had second

thoughts and declined to support the verdict. However, once the jury received confirmation that the

presiding juror could be changed, the jury quickly returned a unanimous verdict. The judge’s oral

instruction, given in context of a juror having second thoughts about a verdict, was not egregious

error. The comment merely reiterated to the jury the earlier charge that a verdict must be unanimous

and summed up the communications received through the bailiff. The court’s comment was not

coercive because it merely requested the jurors to deliberate some more, if they could, in an attempt

to reach a unanimous verdict. We accordingly overrule Jones’s seventh point.

               Jones’s eighth point challenges the trial court’s written answer to the jury’s question

about whether the presiding juror could be changed. Specifically, Jones challenges the last sentence

of the court’s written answer, alleging that it went beyond the question asked by including a mention

that the verdict must be unanimous and in so doing it was coercive. Jones objected to the instruction

at trial but was overruled. Jones asserts that the written answer violates article 36.16 of the code of



                                                  16
criminal procedure because it went beyond the jury’s request. See Tex. Code Crim. Proc. Ann. art

36.16 (“[N]o further charge shall be given to the jury unless required by . . . the request of the jury.”).

If a supplemental jury instruction violates article 36.16, the judgment “shall not be reversed unless

the error appearing from the record was calculated to injure the rights of [the] defendant, or unless

it appears from the record that the defendant has not had a fair and impartial trial.” Tex. Code Crim.

Proc. Ann. art. 36.19 (West 1981). The last sentence of the instruction merely restated the court’s

initial written charge to the jury conveying the fact that a verdict must be unanimous. If an

instruction may properly be given in the original charge, it may be given as an additional instruction.

Allaben v. State, 418 S.W.2d 517, 521 (Tex. Crim. App. 1967). A reference to the original charge

is not considered an additional instruction. Earnhart v. State, 582 S.W.2d 444, 449-50 (Tex. Crim.

App. 1979). Viewed in context of the initial presiding juror’s reservations about serving and the

jury’s question about whether a different presiding juror could be chosen, the instruction that a

verdict must be unanimous, no matter who served as the presiding juror, was not calculated to injure

Jones’s rights and did not result in an unfair trial.

                Because we overrule Jones’s seventh and eighth points on supplemental jury

instructions, we also overrule his ninth and last point, which asserts that the trial court erred in

denying his motion for mistrial based on these instructions. We review the denial of a motion for

mistrial under an abuse of discretion standard. Ladd, 3 S.W.3d at 567. Here, any error arising from

the oral and written supplemental instructions was not so prejudicial as to contribute to the rendering

of an impartial verdict and therefore was not an abuse of discretion. See id.




                                                    17
                                         CONCLUSION

               We hold that none of Jones’s asserted errors rise to the level of reversible error. We

therefore affirm the district court’s judgment.




                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: December 11, 2003

Do Not Publish




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