                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00025-CR


DERRICK FLORENCE                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2010-1034-D
                               ----------

                        MEMORANDUM OPINION1

                                     ----------

                                   Introduction

      Appellant Derrick Florence was tried on six counts of aggravated sexual

assault of a child less than fourteen years of age. A jury found him not guilty of

four counts but guilty of two and assessed his punishment at 30 years’ and 35

years’ confinement, respectively. The trial court sentenced Appellant accordingly,


      1
       See Tex. R. App. P. 47.4.
ordering the sentences stacked. In three issues, Appellant contends that the trial

court erred by (1) failing to charge the jury to render a unanimous verdict on each

count, (2) denying Appellant’s motion to sequester and (3) not declaring a

mistrial. We affirm.

                                      Facts

      C.B. testified that Appellant sexually assaulted her four to five times a

week for a period of three years, beginning when she was six years old. She

further testified that Appellant warned her he would kill her and her mother if she

told anyone.

      The jury retired to deliberate at 2:40 p.m. Before 5:00 p.m., it passed a

note to the trial court. The record reveals the following as the trial court worked

out its response to the jury’s note with the assistance of counsel from both sides:

              THE COURT: [. . .] The jury has sent out a note. There are
      five questions on it, kind of more procedural rather than substantive.
      I’ll read all the questions, and then we can formulate the answers.

            First question is:      (Reading) Must we complete the
      deliberations today? The second question is: (Reading) What time
      should we stop deliberating for the day? No. 3 is: (Reading) If we
      cannot decide unanimously, what happens? No. 4: (Reading) If we
      have to stay, can food be provided? Five: (Reading) We would like
      to meet again at 8:30.

               ....

             [U]sually I need to refer to the charge of the Court, but pretty
      much all of them, except for that not being unanimous, can simply, I
      think, be answered without any concern of––must we complete
      deliberations today? Just no.

               ....


                                         2
      [APPELLANT’S COUNSEL]: Yeah. Now, that––that’s an
appropriate answer. I––I don’t think you’ll violate anything and
cause any error by––by answering that, that––I think you could
advise them that they can complete deliberations when––

      THE COURT: Okay.

     [APPELLANT’S COUNSEL]: ––when and if they reach a
unanimous verdict. There’s no time limit.

     THE COURT: And so to the––to the question, must we
complete the deliberations today, anything further than a no?

      [THE STATE]: Nope.

      [APPELLANT’S COUNSEL]: No, ma’am.

      THE COURT: Okay. Then I’m writing that.

      To Question 2: (Reading) What time should we stopped [sic]
deliberating for the day?

      [THE STATE]: I mean, you can just say when you want to or
5:00 o’clock, I guess, would be my––

      ....

       [APPELLANT’S COUNSEL]: Yeah. I––I––I think––I think a
good answer, you know, with all due respect to everybody here, I
think, is: That’s usually left up to the jury, but typically we recess at
5:00 o’clock. Would that––

      THE COURT: I recess as close to 5:00 for security reasons
these days. But I think it is their decision on it, but they certainly can
recess at 5:00.

      [APPELLANT’S COUNSEL]: Absolutely. . . .

      THE COURT: . . . . Okay. So 2: (Reading) What time should
we stop deliberating for the day? I think an appropriate response
would be: The jury can decide how long they wish to deliberate, but
you may stop at 5:00 if you choose.


                                    3
         [APPELLANT’S COUNSEL]: I think that’s fine.

         ....

         THE COURT: All right. Let me mention 4 and 5 to the
attorneys here. (Reading) If we have to stay, can food be provided?
I’ll just say: You do not have to stay.

     [APPELLANT’S COUNSEL]: But food will be provided if you
choose to or. . .

         THE COURT: Not unless they’re sequestered.

      THE BAILIFF: We have to find a place that would deliver, and
they have to pay for their own. It’s usually easier to let them go to
supper.

      THE COURT: Okay. Well, they’re not sequestered, so they
could go get some if they want to.

         ....

         [APPELLANT’S COUNSEL]: But they’ve got to stay together.

         THE COURT: Well––

       [APPELLANT’S COUNSEL]: No, they––no, they don’t have to
stay together. I’m sorry. That––that’s . . . . That was an improper
statement. I’m sorry. I’m thinking of something else.

      THE COURT: I––all right. 2: if we have to stay, can food be
provided?     My thought would be to respond:       You are not
sequestered, and, therefore, you may take a break and obtain the
food of your choice. . . . .

         [APPELLANT’S COUNSEL]: I thought the County paid for the
pizza.

         THE COURT: I think it is only if they are sequestered.

         [APPELLANT’S COUNSEL]: Well, maybe.



                                    4
     THE COURT: All right. Well, let me ask this: (Reading) You
are not sequestered, so you may break for dinner at your own
expense. Is that––

     [APPELLANT’S COUNSEL]: Or you can just say: The
County does not provide food. You may break for dinner and get––

      THE COURT: Right.

      [APPELLANT’S COUNSEL]: ––it on your own.

      THE COURT: Yeah. County does not––yeah.                 You may
break for dinner––I––I’m going to put County does not––


      (Pause in proceedings)

     THE COURT: ––County does not provide it. All right.
(Reading) We would like to meet again at 8:30 in the morning.

      No problem.

      [THE STATE]: No problem.

      [APPELLANT’S COUNSEL]: No problem. Up to the jury. No
problem.

      THE COURT: Definitely, yes. No problem.

       All right. The one in the middle: (Reading) If ––if we do not—
if we cannot decide unanimously what happened, I don’t know that
that really warrants an Allen charge right now. You are instructed
that you can continue deliberating in the morning, would be my
thought. Just tell them to deliberate. I think I need to be a little more
firm.

       [APPELLANT’S COUNSEL]: I––I think it’s more appropriate
to direct them to their jury instructions, as opposed to––

       THE COURT: What part of the jury instructions is going to
give their answer? I’m not pulling off––

      [APPELLANT’S COUNSEL]: No, no. But––but you––that
they should deliberate until they reach a unanimous verdict.



                                   5
             THE COURT: (Reading) If we cannot decide unanimously
      what happens––I––to me, if they said, we cannot reach a
      unanimous verdict, we are––we cannot do that, then I’d give them
      the Allen charge.

            [APPELLANT’S COUNSEL]: Yes.

            ....

            THE COURT: And my thought is: If you cannot decide
      unanimously what happens, you will be directed to continue
      deliberating. You are instructed––

             [APPELLANT’S COUNSEL]: Or maybe: Should that––you
      know, should that happen––should that happen, you’ll be given
      additional instructions. Because it––it does seem like it’s not a
      conclusion at this point but what happens further on down the road.
      So if indeed that does happen, you’ll be given additional instructions.
      Maybe? I just want to make sure everything is clean and––

             THE COURT: I want to make them deliberate before they
      decide if they want––if they want to figure out what the instructions
      are, all we have to say is, we’re not unanimous at this time.

            [APPELLANT’S COUNSEL]: Uh-huh.

            ....

             THE COURT: How about: You will be requested to continue
      to deliberate until you reach a verdict?

            [APPELLANT’S COUNSEL]: Sure.

      Counsel for both sides agreed to the trial court’s written responses to the

jury’s questions, and the trial court judge signed off on them and sent them to the

jury. Later that day, the jury asked to break for the night, and with no objections

from either side, the trial court issued admonishments and released the jury until

the next day.      The jury reconvened in the morning and deliberated until

approximately 2:00 p.m., at which point it sent out the following note:



                                         6
            With diligent deliberation all twelve jurors have reached their
      decisions and are firmly resolved. However, it is not unanimous.
      We honestly believe that no amount of additional deliberation will
      provide the necessary unanimous verdict.

           We understand the seriousness of the crime and the great
      responsibility the law has placed upon us.

             Given our position, what is the direction of the court?


      The court issued an Allen charge, and the jury retired to the jury room and

resumed deliberations. When it had deliberated for approximately two and a half

more hours, Appellant moved for a mistrial based on a deadlocked jury. The trial

court denied the motion, at which point Appellant moved to sequester. The trial

court denied that motion as well, and after the jury had deliberated for the rest of

the day without having reached a verdict, the trial court admonished and

dismissed it for a second night.      The jury retuned again in the morning and

reached a verdict at 9:40 a.m.

                          Untimely Motion to Sequester

      In Appellant’s first issue, he contends that the trial court erred by allowing

the jurors to separate once deliberations had begun. But by failing to ask the trial

court to sequester the jury until after the deliberations were already underway,

Appellant has forfeited this issue.

      We agree with our sister court in Austin, which has reasoned under similar

circumstances,

              Appellant’s right to have the jury sequestered is one that is
      forfeited if no motion to sequester is made. Therefore, to preserve


                                         7
      for appeal a complaint that the trial court has deprived him of the
      right to have the jury sequestered, the defendant must first timely
      request sequestration. A timely request is one that is made before
      jury deliberations begin or before the jury asks to separate. Without
      such a request, it is within the trial court’s discretion to permit the
      jury to separate.

Keiser v. State, 880 S.W.2d 222, 223 (Tex. App.––Austin 1994) (pet. ref’d)

(internal citations omitted).

      Because the record shows that Appellant agreed to allow the jury to

separate and did not ask that it be sequestered until it had deliberated for two full

days, we hold that Appellant did not invoke his right to sequestration in a timely

manner and has forfeited this issue for appellate review. Cf. Sanchez v. State,

906 S.W.2d 176, 178 (Tex. App.––Fort Worth 1995, pet. ref’d) (holding that

appellant preserved his claim by timely objecting to jury’s first separation for

lunch during trial). Accordingly, we overrule Appellant’s first issue.

                       Charge Error Caused No Egregious Harm

      In his second issue, Appellant claims that the trial court’s jury charge at

guilt-innocence was improper because it failed to require a unanimous verdict on

each count. The State concedes that the charge is erroneous under Cosio v.

State, 353 S.W.3d 766, 774 (Tex. Crim. App. 2011) (concluding that court of

appeals correctly held that charges allowed for the possibility of non-unanimous

verdicts). The trial court’s charge in this case instructed the jury on six allegations

of sexual assault but contained only a single unanimity instruction.

      The Cosio court explained,



                                          8
              First, non-unanimity may occur when the State presents
      evidence demonstrating the repetition of the same criminal conduct,
      but the actual results of the conduct differed. For example, if the
      State charges the defendant with the theft of one item and the
      evidence shows that the defendant had in fact stolen two of the
      same items, the jury's verdict may not be unanimous as to which of
      the two items the defendant stole. To ensure a unanimous verdict in
      this situation, the jury charge would have to make clear that the jury
      must be unanimous about which of the two items was the subject of
      the single theft.

             Second, non-unanimity may occur when the State charges
      one offense and presents evidence that the defendant committed
      the charged offense on multiple but separate occasions. Each of the
      multiple incidents individually establishes a different offense or unit
      of prosecution. The judge’s charge, to ensure unanimity, would
      need to instruct the jury that its verdict must be unanimous as to a
      single offense or unit of prosecution among those presented.

             And third and finally, non-unanimity may occur when the State
      charges one offense and presents evidence of an offense,
      committed at a different time, that violated a different provision of the
      same criminal statute. To ensure unanimity in this situation, the
      charge would need to instruct the jury that it has to be unanimous
      about which statutory provision, among those available based on the
      facts, the defendant violated.

Id. at 771–72.

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must

determine whether error occurred. The State concedes that there was error in

the charge: it did not sufficiently instruct the jury that it had to reach a unanimous

verdict on each count of sexual assault.

      Because the State correctly concedes error in the charge, we must then

evaluate whether sufficient harm resulted from the error to require reversal. Id. at



                                           9
731–32.    The test for harm depends on whether Appellant objected to the

erroneous charge. Appellant did not object to the jury charge. If there is error in

the charge that was not objected to it at trial, we must decide whether the error

was so egregious and created such harm that appellant did not have a fair and

impartial trial––in short, that “egregious harm” has occurred. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code

Crim. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 171

(Tex. Crim. App. 1996). Jury charge error is egregiously harmful if it affects the

very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.

App. 2007); Hutch, 922 S.W.2d at 171.

      When examining the record to determine whether jury-charge error is

egregious, the reviewing court should consider the entirety of the jury charge

itself; the evidence, including the contested issues and weight of the probative

evidence; the arguments of counsel; and any other relevant information revealed

by the record of the trial as a whole. Stuhler, 218 S.W.3d at 719; Bailey v. State,

867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Almanza, 686 S.W.2d at 171.           The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to

prove and must be determined on a case-by-case basis. Ellison v. State, 86

S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.




                                         10
      The trial court’s charge to the jury contained a general unanimity

instruction and provided six separate verdict forms. Both the State and Appellant

explained to the jury that it was to reach a verdict on six separate counts. Jury

communications with the court specifically referred to the need to reach

unanimous verdicts.     The jury convicted Appellant on Counts I and II, but

acquitted him on the remaining four counts.

      In arguing that the erroneous charge caused him harm, Appellant argues

that the verdict implies that the jury either had doubts about the complainant’s

credibility or desired to extend leniency toward Appellant. Additionally, Appellant

argues that the erroneous charge makes it impossible to determine whether

jeopardy has attached to any given act alleged against him. At most, the harm

that Appellant argues he has suffered is hypothetical. Given the jury’s multiple

communications with the trial court indicating its awareness that the verdicts

were required to be unanimous, we hold that Appellant suffered no egregious

actual harm, and we overrule his second issue.

                             Mistrial Properly Denied

      Two-and-a-half hours after the trial court issued its Allen charge, Appellant

moved for a mistrial. Now, without citing authority, he claims that the trial court

reversibly erred by denying his motion for mistrial because the jury had

deliberated for eleven-and-a-half hours at that point.

      The jury began deliberations at 2:40 p.m. on December 6. It sent out a

note inquiring about food and what would happen if they could not reach a


                                        11
unanimous verdict. The trial court and the parties agreed that the unanimity

question did not require an Allen charge. The jurors were allowed to separate for

the night, and were required to return to court to continue deliberating at 8:30 the

next morning.

      On December 7, the jury returned as instructed. It sent out a note with four

questions related to the evidence. Later the same day, it sent out another note

informing the court that it was not in unanimous agreement. Both the State and

Appellant requested an Allen charge. The trial court read the Allen charge to the

jury without objection. Two-and-a-half hours after the jury received the Allen

charge, Appellant orally moved for mistrial. He points out that he did so after the

jury had deliberated for more than eleven-and-one-half hours over two days. As

grounds for his motion, Appellant cited the length of time the jury had spent

deliberating, the notes it had sent to the trial court during deliberations, and its

silence since receiving the Allen charge. The trial court denied the motion for

mistrial, and the jury sent no additional notes stating that it had any difficulty

reaching a verdict. At 9:40 the following morning, December 8, the jury reached

a verdict.

      There are no time limits on the amount of time a jury may deliberate. The

length of time a jury may be held for deliberation in a criminal case rests in the

sound discretion of the trial judge, who will not be reversed on appeal absent an

abuse of that discretion. Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App.

1999), cert. denied, 531 U.S. 837 (2000).


                                        12
         The jury was presented with an indictment that required them to consider

allegations of six separate offenses. The evidence suggested that the offenses

were alleged to have been committed over a period of several years. The

offenses alleged were of a very serious nature, involving accusations of

aggravated sexual assault of a child. Although the trial court, as well as counsel

for both parties, believed it was proper to respond to the jury note regarding lack

of unanimity with an Allen charge, only a single Allen charge was required.

         Nothing in the record suggests that the trial court abused its discretion by

denying Appellant’s motion for mistrial. We therefore overrule Appellant’s third

issue.

                                     Conclusion

         Having overruled Appellant’s three issues on appeal, we affirm the trial

court’s judgment.



                                                      /s/ Anne Gardner
                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: July 24, 2014




                                          13
