                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00516-CR


Jimmie Lee Johnson                        §   From the 432nd District Court

                                          §   of Tarrant County (1237230D)

v.                                        §   January 4, 2013

                                          §   Opinion by Justice Walker

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By_________________________________
                                         Justice Sue Walker
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00516-CR


JIMMIE LEE JOHNSON                                              APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

         FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     Appellant Jimmie Lee Johnson appeals his conviction for possession of a

controlled substance, namely cocaine, of four grams or more but less than 200

grams for which he was sentenced to forty years’ imprisonment. In a single

point, Johnson argues that he was egregiously harmed by the trial court’s




     1
      See Tex. R. App. P. 47.4.


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submission of a coercive Allen charge2 during the guilt/innocence phase of the

trial. We will affirm.

       Because Johnson’s point relates only to the trial court’s Allen charge, we

need not set forth a detailed account of all the evidence adduced at trial. The

record shows that Johnson was arrested after brandishing a handgun and

threatening to shoot Clifton Davis for failing to pay back a sum of money. After

Johnson was transported to jail, the transporting officer found a bag containing

drug paraphernalia in the backseat of his patrol car. Another officer performed a

search of Johnson’s person at the jail and found a bag of crack cocaine in

Johnson’s pocket. Johnson was indicted for possession of the cocaine.

       After the jurors began deliberating, they sent the trial court six notes,

requesting clarification of testimony from the arresting officer and the booking

officer and asking to view various pieces of evidence.        During the second

afternoon of deliberations, the jury sent in its seventh note, stating, ―After

deliberation and several votes, the jury has been unable to come to a unanimous

verdict. We are certain that consensus can’t be reached.‖ The State requested

that the trial court submit an Allen charge to the jury. Johnson objected to the

State’s request and moved for a mistrial.     The trial court recessed to allow

Johnson to research the issue. The trial court thereafter reconvened the trial and

held a hearing on the Allen charge issue.


       2
       Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896).


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      Johnson argued that the use of an Allen charge is unduly coercive, would

violate his due process rights, and could potentially violate his right to a

unanimous jury. Johnson challenged the wording of the proposed Allen charge,

arguing that it placed an undue burden on the jurors in the minority. The trial

court ultimately overruled Johnson’s objection, denied his motion for mistrial, and

gave the jury the following Allen charge in response to their seventh note:

      MEMBERS OF THE JURY:

             You are instructed that in a large proportion of cases absolute
      certainty cannot be expected. Although the verdict must be the
      verdict of each individual juror, and not a mere acquiescence in the
      conclusion of the other jurors, each juror should show a proper
      regard to the opinion of the other jurors.

             You should listen, with a disposition to being convinced, to the
      arguments of the other jurors. If a large number of jurors are for
      deciding the case one way, those in the minority should consider
      whether they are basing their opinion on speculation or guesswork,
      and not on the evidence in the case. Those in the minority should
      keep in mind the impression the evidence has made on a majority of
      the jurors who are of equal honesty and intellect as the minority.

             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 empaneled in the same way
      this jury has been empaneled 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 the next jury will find these questions
      any easier to decide than you have found them.

            With this additional information, you are instructed 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.


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After the Allen charge was given, the jury deliberated for fifty more minutes

before reaching a unanimous verdict of guilty.       The unanimous verdict was

confirmed by polling the jury.

      In his sole point, Johnson argues that he was egregiously harmed by the

trial court’s submission of a coercive Allen charge during the guilt/innocence

phase of his trial. Specifically, Johnson argues that the language—―Those in the

minority, you should keep in mind the impression the evidence has made on the

majority – on a majority of the jurors who are of equal honesty and intellect as the

minority‖—rendered the instruction impermissibly coercive and entitled him to a

new trial.

      An Allen charge is given to instruct a deadlocked jury to continue

deliberating. 164 U.S. at 501, 17 S. Ct. at 157. The use of such a charge under

these circumstances has been approved by the court of criminal appeals.

Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996), cert. denied, 535

U.S. 1065 (2002). To prevail on a complaint that an Allen charge is coercive, an

accused must show that jury coercion or misconduct likely occurred or occurred

in fact. Calicult v. State, 503 S.W.2d 574, 576 n.2 (Tex. Crim. App. 1974); Love

v. State, 909 S.W.2d 930, 936 (Tex. App.—El Paso 1995, pet. ref’d). An Allen

charge is unduly coercive and therefore improper only if it pressures jurors into

reaching a particular verdict or improperly conveys the court’s opinion of the

case. Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973). The




                                         5
primary inquiry is the coercive effect of such a charge on juror deliberation in its

context and under all circumstances. Howard, 941 S.W.2d at 123.

      In Ball v. State, we held that an Allen charge containing language identical

to the language challenged on appeal by Johnson was not improperly coercive.

No. 02-06-00268-CR, 2007 WL 2744883, at *4 (Tex. App.—Fort Worth Sept. 17,

2007, pet. ref’d) (mem. op. on PDR, not designated for publication). We stated

that the charge, containing the same language as the language challenged here,

did not tell the jury that one side or the other possessed superior judgment;

rather, it specifically stated that both the majority and the minority possessed

equal intellect and honesty.      See id.       Also in Ball, the trial court carefully

concluded the charge by instructing the jury that it should try to arrive at a verdict

acceptable to all jurors only if it could do so ―without doing violence to your

conscience.‖ See id. The trial court here concluded its jury charge with the

same language.

      Furthermore, the language of which Johnson complains—instructing the

minority to keep in mind the majority’s views—comports with the very object of

the jury system. As stated in Allen,

      The very object of the jury system is to secure unanimity by a
      comparison of views, and by arguments among the jurors
      themselves. It certainly cannot be the law that each juror should not
      listen with deference to the arguments, and with a distrust of his own
      judgment, if he finds a large majority of the jury taking a different
      view of the case from what he does himself. It cannot be that each
      juror should go to the jury room with a blind determination that the
      verdict shall represent his opinion of the case at that moment, or that



                                            6
      he should close his ears to the arguments of men who are equally
      honest and intelligent as himself.

164 U.S. at 501–02, 17 S. Ct. at 157.

      In its context and under all circumstances, we hold that the trial court’s

Allen charge, which contained language instructing the minority to keep in mind

the majority’s views, was not unduly coercive because it did not pressure jurors

into reaching a particular verdict or improperly convey the trial court’s opinion of

the case. See Howard, 941 S.W.2d at 123; Arrevalo, 489 S.W.2d at 571; Ball,

2007 WL 2744883, at *4; see also United States v. Anderton, 679 F.2d 1199,

1203–04 (5th Cir. 1982) (holding that Allen charge containing similar language

did not prejudice appellant because charge did not threaten the jury, set a

deadline, or coerce the jurors to set aside their scruples and arrive at a verdict).

We therefore overrule Johnson’s sole point and affirm the trial court’s judgment.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

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

DELIVERED: January 4, 2013




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