                           NUMBER 13-18-00583-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOSE MORENO ARRIAGA,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the County Court at Law
                        of Navarro County, Texas.



                       MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Jose Moreno Arriaga was convicted of continuous sexual abuse of a

child, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02. By two issues on appeal,

Arriaga argues that (1) the trial court’s Allen charge was improperly coercive; and (2)

article 38.37, § 1 of the Texas Code of Criminal Procedure violates the separation of
powers doctrine in the Texas Constitution. See TEX. CODE CRIM. PROC. ANN. art. 38.37.

We affirm.

                                          I. BACKGROUND 1

        Arriaga was indicted for continuous sexual abuse of a child, and the jury trial began

on September 10, 2018. See TEX. PENAL CODE ANN. § 21.02. During jury deliberations,

the jury sent four notes to the trial court indicating its difficulty in coming to a consensus.

The final note stated: “At this time, the jury is at a complete standstill. There is a juror

who feels judgment cannot be passed on this case.” In response, the trial court declared

its intention to read an Allen charge to the jury. See Allen v. United States, 164 U.S. 492,

501 (1896). Neither the State nor Arriaga objected to the Allen charge. The jury returned

a verdict of guilty about an hour after the Allen charge was read.                      The jury was

subsequently polled, and each juror indicated that the guilty verdict was their own. Arriaga

was sentenced to fifty years’ imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. This appeal ensued.

                                          II. ALLEN CHARGE

        In his first issue, Arriaga asserts that the Allen charge submitted by the court

caused harm because it was “unduly coercive” and caused the jurors to do “violence to

their conscience.”

A. Standard of Review and Applicable Law.

               An Allen charge is given to a deadlocked jury to inform them of the
        consequences if a verdict is not reached. An Allen charge is a supplemental
        charge sometimes given to a jury that declares itself deadlocked. It reminds
        the jury that if it is unable to reach a verdict, a mistrial will result, the case



        1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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       will still be pending, and there is no guarantee that a second jury would find
       the issue any easier to resolve.

Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); see Allen, 164 U.S.

at 501. “An Allen charge jury instruction will constitute reversible error only if, on its face,

it is so improper as to render jury misconduct likely or jury misconduct is demonstrated to

have occurred in fact.” West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003,

pet. ref’d). One manner in which an Allen charge may be improper is if it is unduly

coercive; an Allen charge is unduly coercive only if it pressures jurors into reaching a

particular verdict or improperly conveys the trial court’s opinion on the case. See id.

B. Analysis

       The trial court’s Allen charge instructed the jury as follows:

             If this jury finds itself unable to arrive at a unanimous verdict, it will
       be necessary for the Court to declare a mistrial and discharge the jury.

              The indictment will still be pending, and it is reasonable to assume
       that the case will be tried again before another jury at some future time. Any
       such future jury will be impaneled in the same way this jury has been
       impaneled, and will likely hear the same evidence which has been
       presented to this jury.

               The questions to be determined by that jury will be the same
       questions confronting you, and there is no reason to hope that the next jury
       will find these questions any easier to decide than you have found them.
       With this additional instruction, you’re requested 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. Don’t do
       violence to your conscience, but continue deliberating.

       This language is almost identical to the Allen charges upheld in other cases. See

Arrevalo v. State, 489 S.W.2d 569, 571–72 (Tex. Crim. App. 1973); West, 121 S.W.3d at

108; Willis v. State, 761 S.W.2d 434, 437–38 (Tex. App.—Houston [14th Dist.] 1988, pet.

ref’d); Rodela v. State, 666 S.W.2d 652, 652–53 (Tex. App.—Corpus Christi–Edinburg

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1984, pet. ref’d); see also Olvera v. State, No. 13-13-00464-CR, 2014 WL 3542093, at *5

(Tex. App.—Corpus Christi–Edinburg July 17, 2014, no pet.) (mem. op., not designated

for publication). Arriaga fails to point out any specific language that he contends is

coercive. He merely argues that the charge must have been coercive because the jury

repeatedly indicated that it was deadlocked before the charge, but within an hour after

the supplemental charge was read to it, the jury was able to reach a verdict. But that is

the very purpose of an Allen charge: to inform the jurors of the consequence of a

deadlock and to encourage the jurors to resolve their differences without coercion. See

Allen, 164 U.S. at 501; Torres v. State, 961 S.W.2d 391, 393, n. 1 (Tex. App.—Houston

[1st Dist.] 1997, pet. ref’d). Furthermore, the Allen charge in this case does not contain

the type of problematic language that has been found to be coercive. See, e.g., Green v.

United States, 309 F.2d 852, 855 (5th Cir. 1962) (concluding that the Allen charge was

coercive because it told the jury that it is the duty of the minority to listen to the argument

of the majority with some distrust of their own judgment because the rule is that the

majority will have better judgment than the mere minority). The trial court in this case

even specifically instructed the jurors at the end of the Allen charge not to do violence to

their conscience. The trial court’s Allen charge was not improperly coercive. We overrule

Arriaga’s first issue.

                                      III. ARTICLE 38.37

       In his second issue, Arriaga argues that article 38.37, § 1 of the Texas Code of

Criminal Procedure is unconstitutional because it violates the separation of powers

provision of the Texas Constitution. See TEX. CONST. art. II, § 1; TEX. CODE CRIM. PROC.

ANN. art. 38.37.

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A. Standard of Review and Applicable Law

       We review the constitutionality of a statute in light of the presumption of the

statute’s validity. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Morris

v. State, 833 S.W.2d 624, 627 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). We

must presume that the Legislature did not act unreasonably or arbitrarily in enacting the

statute. Ex parte Granviel, 561 S.W.2d at 511. Appellant has the burden to establish that

the statute is unconstitutional. Id.

       The separation of powers doctrine, as articulated in article II, § 1 of the Texas

Constitution, states the following:

       The powers of the Government of the State of Texas shall be divided into
       three distinct departments, each of which shall be confided to a separate
       body of magistracy, to wit: Those which are Legislative to one; those which
       are Executive to another, and those which are Judicial to another; and no
       person, or collection of persons, being of one of these departments, shall
       exercise any power properly attached to either of the others, except in the
       instances herein expressly permitted.

TEX. CONST. art. II, § 1. To establish a violation of the separation clause, appellant must

show that one department has assumed, or has been delegated, to whatever degree, a

power that is more “properly attached” to another or that one department has so unduly

interfered with the functions of another that the other department cannot effectively

exercise its constitutionally assigned powers. Wilkerson v. State, 347 S.W.3d 720, 724

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The Texas Constitution confers upon

the judiciary the following core powers: “(1) to hear evidence; (2) to decide issues of fact

raised by the pleadings; (3) to decide relevant questions of law; (4) to enter a final

judgment on the facts and the law; and (5) to execute the final judgment or

sentence.” State v. Williams, 938 S.W.2d 456, 458–59 (Tex. Crim. App. 1997).

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       For certain sexual crimes committed against a child under the age of seventeen,

“[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other

crimes, wrongs, or acts committed by the defendant against the child who is the victim of

the alleged offense shall be admitted for its bearing on relevant matters.” TEX. CODE CRIM.

PROC. ANN. art. 38.37, § 1 (emphasis added).

B. Analysis

       Arriaga argues that the legislature, in enacting article 38.37, violated the separation

of powers clause of the Texas Constitution and usurped the power of the judicial branch.

More specifically, Arriaga asserts that § 1 invades the role of the judiciary because it

mandates the admission of certain kinds of evidence. See TEX. CODE CRIM. PROC. ANN.

art. 38.37, § 1. Accordingly, Arriaga brings a facial challenge to the constitutionality of the

statute. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (“A facial

challenge is an attack on a statute itself as opposed to a particular application.”).

       We first note that while Rule 404(b) generally prohibits the use of extraneous

offenses, the Legislature has chosen to enact specific and limited exceptions to this

prohibition, and article 38.37, § 1 is one such exception that Texas courts have found to

be constitutional. See Buxton v. State, 526 S.W.3d 666, 687 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d); Harris v. State, 475 S.W.3d 395, 401 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref'd); Martin v. State, 176 S.W.3d 887, 902 (Tex. App.—Fort Worth 2005,

no pet.); Brantley v. State, 48 S.W.3d 318, 329–30 (Tex. App.—Waco 2001, pet. ref’d);

Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.—Tyler 1999, pet. ref’d). These cases

largely held that article 38.37, § 1 does not violate a defendant’s right to due process.

See Buxton, 526 S.W.3d at 687. We also conclude that article 38.37, § 1 does not violate

                                              6
the separation of powers clause because the trial court retains a degree of discretion in

admitting evidence. It is true that article 38.37, § 1 mandates that certain evidence “shall”

be admitted; however, § 1 also states that such evidence may only be admitted “for its

bearing on relevant matters.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1. Thus, even

though article 38.37, § 1 allows for evidence to be admitted despite Rules 404 and 405,

a trial court could still potentially exclude the evidence after conducting a Rule 403

balancing test. See id.; TEX. R. EVID. 403, 404, 405. As the trial court has discretion

under the statute to ultimately admit or exclude evidence, article 38.37, § 1 does not

infringe on the trial court’s decision-making power. See Wilkerson, 347 S.W.3d at 724.

We overrule Arriaga’s second issue.

                                      IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                                NORA L. LONGORIA
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of July, 2019.




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