                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-17-00060-CR
                           ____________________

                 JOSEPH CHRISTOPHER LEWIS, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                     On Appeal from the 1A District Court
                            Tyler County, Texas
                           Trial Cause No. 12,519
________________________________________________________________________

                          MEMORANDUM OPINION

      In a single issue, Joseph Christopher Lewis appeals his conviction for

aggravated sexual assault of a child for which he received a mandatory life sentence

in prison based on prior sexual offenses enhancing his sentence. See Tex. Penal Code

Ann. §§ 12.42(c)(2), 22.021(a)(1)(B)(ii), (a)(2)(B) (West Supp. 2018).1 Lewis



      1
        The amendments made to the Texas Penal Code after the commission of the
offense do not impact our resolution of the issue on appeal.
                                         1
argues the trial court abused its discretion by not granting a mistrial under manifest

necessity but rather improperly coercing the jury into reaching a verdict after it

notified the trial court it was deadlocked. The State contends Lewis failed to preserve

his issue, and even if the alleged error was preserved for review, the trial court did

not improperly instruct the jury to continue deliberations. We agree with the State

and affirm the trial court’s judgment.

                                     Background

      After hearing evidence from each party, listening to closing statements, and

receiving the trial court’s final instructions, the jury recessed at 2:58 p.m. for

deliberation. At 4:35 p.m., the jury sent a note to the trial court requesting certain

evidence. The trial court provided all the exhibits to the jury and requested they

clarify the testimony they desired. At 4:54 p.m., the jury stated they wanted the

testimony from the complaining witness. Soon thereafter, they were released for the

day at 5:03 p.m.

      The jury began its deliberations at 9:00 a.m. the next day. The jury then sent

another note requesting testimony from another witness, to which the trial court

asked the jury to specify what portion of the witness’s testimony they wanted. At

11:46 a.m., the jury requested the witness’s testimony in its entirety, and the trial

court agreed to get it to the jury as soon as it could be transcribed. At 2:22 p.m., the

                                           2
jury sent another note informing the trial court that they were “deadlocked at 7 guilty,

5 not guilty.” The trial court stated it would read the “dynamite” charge 2 after

assembling all the parties and the jury.

      Once everyone was present in the court room, the trial court noted the jury

had informed the court that it was deadlocked, and the court charged the jury as

follows:

             . . . If you resolve this case — if you can resolve this case by your
      verdict, you should do so. I don’t mean to say that any individual juror
      should yield his or her conscience and positive conviction but I do mean
      that when you’re in the jury room, you should discuss this matter among
      yourselves carefully and listen to each other. Try, if you can, to reach a
      conclusion on the issue. It is your duty as jurors to keep your minds
      open to every reasonable argument. A juror should not have any pride
      or opinion and should avoid hastily forming or expressing an opinion.
      A juror should not, however, surrender conscientious views founded
      upon the evidence unless convinced by fellow jurors. I am satisfied that
      you have not — and I am satisfied that you have not deliberated
      sufficiently.

             At this moment I’m not going to accept your — the statement
      that you are deadlocked. I’m going to ask you to deliberate just a little
      bit longer. If you within a reasonable amount of time do not think that
      you’re going to be able to come up with a verdict, then you need to let
      me know again.

The trial court then told the jury foreman to “try again,” “[j]ust a little while — give

it just another shot.”


      2
       A “dynamite” charge refers to a standard Allen charge. See Allen v. U.S., 164
U.S. 492, 501 (1896).
                                           3
      A little over an hour later, at 3:44 p.m., the jury informed the court it was

deadlocked “at guilty 11, not guilty 1.” The trial court explained to the State and

defense counsel it was considering asking the foreman, if given more time, would

the jury be able to reach a verdict. The trial court asked counsel whether the parties

had any suggestions. The State had no objection to the trial court’s suggestion:

Lewis’s counsel stated, “I can’t — I — what the situation is — I can’t ask for the

discharge of the jury. My client has to consent to that. I can’t consent to that.” At

3:50 p.m., after assembling the parties and the jury, the trial court informed the jury

of the following:

             I have personally never — well, I’ve been a district judge for
      about two years, a little over two years. So I’ve presided actually in
      those two years over many cases for — you know, for a person who’s
      been on the bench for two years so — but I do have to say that so far
      I’ve not had a jury that’s hung up, not that it’s — I’m certain it’s going
      to happen in my career at some time.

             But I want to say this: Y’all are very close. You’re very close to
      a verdict and I want to encourage you to try to keep an open mind and
      listen to one another because, you know, somebody else is going to
      have to come in here and do this if we can’t, you know, come to some
      resolution. So I really do want to encourage you to spend just a few
      more minutes.

             I don’t want — I’m not reading off anything. I’m just telling you
      that this is — it’s — there’s a lot to this and I don’t want to say to you,
      you know, disobey your own conscience and your own — you know,
      your own heart but I would ask you to open your minds and really try
      hard to listen to one another and, if it’s possible, to come up with a
      verdict. I do want y’all to spend a few more minutes, please, trying to
                                          4
         work through this. I’m not going to give up on y’all. So I’m going to
         give you a few more minutes.

               ....

                So anyway — but that’s what I’m going to ask you to do. Please
         spend a few more minutes discussing and trying to keep an open mind
         and, if it’s possible, to come up with a verdict. I sure hope you will.
         Okay.

         Soon thereafter, at 4:12 p.m., the trial court informed the parties the jury had

reached a verdict. The jury found Lewis guilty of aggravated sexual assault of a

child.

                                        Analysis

         Initially, we note Lewis did not preserve his complaint that the Allen charges

were coercive. To preserve an error for appellate review, a party must present a

timely objection to the trial court, state the specific grounds for the objection, and

obtain a ruling. Tex. R. App. P. 33.1(a). When a defendant does not object to the

trial court’s submission of an Allen charge, error is not preserved. Thomas v. State,

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

Freeman v. State, 115 S.W.3d 183, 186 n.2)) (finding failure to object to an Allen

charge waives error). Lewis’s counsel made no objection or statement regarding the

trial court’s first Allen charge. Concerning the trial court’s second charge, the trial

court informed the parties of its thoughts to again instruct the jury to continue its

                                             5
deliberation. When the trial court asked for suggestions from the parties, defense

counsel merely informed the trial court he could not ask for a mistrial without

consent of his client, Lewis. At no time before or after the two Allen charges were

given to the jury did Lewis object to the charges or request a mistrial. Accordingly,

Lewis has not preserved any complaint about the Allen charges for appellate review.

      Nonetheless, even if we were to consider the Allen charges given in this case,

neither have been shown to be coercive. An Allen charge is a supplemental charge

sometimes given to a jury that declares itself deadlocked. See Allen v. U.S., 164 U.S.

492, 501 (1896). It reminds the jury if it is unable to reach a verdict, a mistrial will

result, the case will still be pending, and there is no guarantee a second jury would

find the issues any easier to resolve. Id.; Howard v. State, 941 S.W.2d 102, 123 (Tex.

Crim. App. 1996). While such a charge is permissible in both federal and Texas

courts, trial courts must carefully word the instruction and administer it in a non-

coercive manner. Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App.

2006).

      The primary inquiry when considering the propriety of an Allen charge is its

“coercive effect” on juror deliberations in its context and under the circumstances.

Howard, 941 S.W.2d at 123 (citing Lowenfield v. Phelps, 484 U.S. 231, 237 (1988));

Freeman, 115 S.W.3d at 186–87. An Allen charge that pressures jurors into reaching

                                           6
a particular verdict or improperly conveys the court’s opinion of the case is unduly

coercive. West v. State, 121 S.W.3d 95, 107–08 (Tex. App.—Fort Worth 2003, pet.

ref’d). Conversely, a charge that speaks to the jury as a whole and encourages jurors

to reexamine their views without surrendering honest convictions is not coercive on

its face. Freeman, 115 S.W.3d at 187.

      Here, the charges addressed the entire jury, not any particular juror, and

instructed the jurors to continue deliberating without doing violence to their

conscience. The charges did not pressure jurors into reaching a particular verdict nor

convey the trial court’s opinion of the case in any way. The Court of Criminal

Appeals and other sister courts have approved Allen charges containing similar

language. See Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App. 1973);

Draper v. State, 335 S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d); West, 121 S.W.3d 108–09.

      Because Lewis failed to preserve his sole issue on appeal, we overrule the

issue and affirm the trial court’s judgment.

      AFFIRMED.



                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

                                          7
Submitted on August 9, 2018
Opinion Delivered January 9, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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