                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00209-CR



         KYLE ANDREW BUTLER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 27382




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                 MEMORANDUM OPINION
       A Lamar County jury convicted Kyle Andrew Butler of aggravated sexual assault of a child

younger than fourteen, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B). As

a result, Butler was sentenced to thirty years’ imprisonment and was ordered to pay $1,833.75 in

court costs, including $1,224.75 for his court-appointed attorney.

       On appeal, Butler argues that a mistrial based on juror deadlock was improperly declared

in a prior trial of this case. He also argues that the judgment must be modified to reflect the correct

statute of offense and by deleting the assessment of attorney fees for his court-appointed attorney

because he is indigent.

       We find no abuse of discretion in the trial court’s decision to declare a mistrial in the

previous trial of this case. We also conclude that the judgment contains the correct statute of

offense. However, we sustain Butler’s last point of error and modify the trial court’s judgment

and the clerk’s bill of costs to delete the assessment of attorney fees. As modified, we affirm the

trial court’s judgment.

I.     There Was No Abuse of Discretion in Declaring a Mistrial Based on Juror Deadlock

       This case was consolidated for trial with companion cause number 06-19-00210-CR, in

which Butler also appeals two convictions of indecency with a child. Butler’s prior trial of all

consolidated charges resulted in jury deadlock and a declaration of mistrial. In his first point of

error on appeal, Butler argues that the trial court abused its discretion in determining that it was

improbable that the jury would agree on a verdict. We disagree.




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         A.       Standard of Review

         “We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.” Smith

v. State, 314 S.W.3d 576, 587 (Tex. App.—Texarkana 2010, no pet.); see Ocon v. State, 284

S.W.3d 880, 884 (Tex. Crim. App. 2009); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999). “We will uphold a trial court’s ruling if it was within the zone of reasonable disagreement.”

Smith, 314 S.W.3d at 587; see Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)).

         “Under our state constitution, jury unanimity is required in felony cases, and, under our

state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 738, 745 (Tex.

Crim. App. 2005). 1 The Texas Code of Criminal Procedure provides that a jury “may be

discharged when it cannot agree and both parties consent to its discharge; or the court may in its

discretion discharge it where it has been kept together for such time as to render it altogether

improbable that it can agree.” TEX. CODE CRIM. PROC. ANN. art. 36.31. It is within the trial court’s

discretion to determine the amount of time that the jury may be held for deliberation. See Green

v. State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992), abrogated on other grounds by Trevino v.

State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) (citing Montoya v. State, 810 S.W.2d 160, 166

(Tex. Crim. App. 1989)); Ex parte Templin, 945 S.W.2d 254, 258 (Tex. App.—San Antonio 1997,


1
 Section 37.07 of the Texas Code of Criminal Procedure provides,
         In all criminal cases, other than misdemeanor cases of which the justice court or municipal court
         has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument
         begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or
         offenses charged, without authorizing the jury to pass upon the punishment to be imposed. If the
         jury fails to agree on the issue of guilt or innocence, the judge shall declare a mistrial and discharge
         the jury, and jeopardy does not attach in the case.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(a) (Supp.).
                                                            3
pet. ref’d) (“[T]here is no fixed length of time that a jury must deliberate before it may be

discharged for failure to agree.”). “The rule is well settled that the exercise of discretion in

declaring a mistrial is determined by the amount of time the jury deliberates considered in light of

the nature of the case and the evidence.” Nelson v. State, 813 S.W.2d 651, 653 (Tex. App.—

Houston [14th Dist.] 1991, no pet.) (citing Patterson v. State, 598 S.W.2d 265, 268 (Tex. Crim.

App. [Panel Op.] 1980)); Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App. 1976).

       Yet, “[b]ecause it is an extreme remedy, a mistrial should be granted ‘only when residual

prejudice remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884–85

(quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). When a lesser remedy

is not requested, we will not reverse the court’s judgment if the problem could have been cured by

a less drastic alternative. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004); see also

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (concluding that the trial court did not

abuse its discretion in denying the appellant’s motion for mistrial when the appellant had not

requested the less drastic remedy of a continuance). The Texas Court of Criminal Appeals has

noted that “[l]ess drastic alternatives include instructing the jury ‘to consider as evidence only the

testimony and exhibits admitted through witnesses on the stand.’” Ocon, 284 S.W.3d at 885

(quoting Arizona v. Washington, 434 U.S. 497, 521–22 (1978) (White, J., dissenting)).




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        B.      Factual and Procedural Background

        The record here reflects that the jury began deliberating at 11:00 a.m. on January 31, 2019.

At 11:55 a.m., the jury asked to see the Sexual Assault Nurse Examiner’s (SANE) report and the

victim’s testimony. While the SANE report, which was introduced into evidence, was provided

to the jury, the trial court denied the jury’s request for a transcript of the victim’s testimony unless

the jury identified which portion of the testimony was in dispute. The jury then broke for a one-

hour lunch at 12:30 p.m.

        After lunch, the jury sent several notes seeking clarification of the evidence. At 1:46 p.m.,

the jury asked to “review the victim’s testimony on the outcry/ [sic] and or description of the

incident and or assault” and also wished to “know who all was present during the SANE exam.”

The trial court instructed the jury that it would investigate a response to the question of requested

victim testimony but clarified that no additional evidence would be presented to show who was at

the SANE examination. At 2:43 p.m., the jury sent the following note: “The jurors are having a

disagreement on the account of events. We would like clarification if the events occurred in one

visit or two separate visits. There are disagreements on what was heard from [the victim] in regards

to penetration.”    The trial court read the portion of the victim’s testimony that related to

penetration. As for the remaining issues raised by this jury note, Butler and the State agreed to the

trial court’s response, which instructed the jury to rely on its recollection of the facts and evidence

presented at trial. The jury returned to deliberate but asked for and received a break at 3:28 p.m.

        After the break, it became clear that the jurors were deadlocked. The trial court received a

jury note at 3:56 p.m., which sought the trial court’s advice because two jurors were undecided

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while the remaining jurors were split on the issue of guilt/innocence. By agreement of the parties,

the trial court issued an Allen charge to the jury. 2 The jury returned to its deliberation at 4:13 p.m.

At 5:14 p.m., the jury informed the trial court that it was “making progress” but wanted to adjourn

for the day. The trial court allowed the jury to adjourn but requested that they return to the jury

room on the following day by 9:00 a.m. so they could continue to deliberate.

         On February 1, 2019, the jury promptly continued its deliberation at 9:00 a.m. At 9:31

a.m., the jury sent a note stating that it could not come to a verdict because one juror remained

undecided while the other jurors were still split on the issue of guilt/innocence. After receiving

the note, the trial court invited the parties to make any suggestions on how to proceed, but neither

party offered any suggestions or comments. As a result, the trial court told the parties it would

declare a mistrial “[b]ased upon the stalemate as indicated by the jury and the fact that the Court

had previously given them an Allen charge.” When asked whether he wished to preserve any

claims or objections to the mistrial, Butler affirmatively answered, “No, Your Honor.” Thus, a

mistrial was declared.

         C.        Analysis

         On appeal, Butler argues that the trial court erred in determining that it was altogether

improbable that the jury would agree on a verdict. We disagree.

         We begin by accepting Butler’s characterization of the case, which follows:

         The evidence was difficult. The entire case involved the unsupported allegation of
         the child victim of the assaults. The charges were denied by Butler and disbelieved
2
  “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 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) (citing Allen v. United States, 164 U.S. 492, 501 (1896)).
                                                              6
         by the victim’s own mother. At least one of the assaults allegedly occurred in a room
         with another child, who denied any knowledge of the assault. The evidence was light
         and contradictory.

Due to the nature of this evidence, the record reflects that the jury deliberated for a considerable

amount of time, had several disagreements as to the evidence presented, and indicated its deadlock

at 3:56 p.m. on the first day of deliberation. The trial court attempted several less drastic remedies,

including reminding the jurors to consider only the evidence presented at trial and giving them an

Allen charge. The trial court also allowed the jury to return to deliberate the following day, but

the jury returned another note reflecting its deadlock. Based on the record, we cannot conclude

that the trial court abused its discretion in finding it was altogether improbable that the jury could

agree.

         Also, the record reflects that Butler did not object to the mistrial or suggest any less drastic

alternatives even though the trial court gave him an opportunity to do so. A defendant who does

not object to the trial judge’s sua sponte declaration of a mistrial, despite an adequate opportunity

to do so, has impliedly consented to the mistrial. See Torres v. State, 614 S.W.2d 436, 441–42

(Tex. Crim. App. [Panel Op.] 1981).

         Because we find both that the trial court did not abuse its discretion in granting a mistrial

and that Butler consented to the mistrial, we overrule Butler’s first issue on appeal.

II.      The Judgment Contains the Correct Statute of Offense

         Next, the State indicted Butler for aggravated sexual assault of a child younger than

fourteen. Butler argues that the “judgment references Texas Penal Code section 22.01(a)(2)(B),

which is a provision for assault.” Butler is incorrect because the statute of offense in the judgment

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is Section 22.021, the aggravated sexual assault statute, not Section 22.01. Under Section

22.021(a)(2)(B), the offense is a first-degree felony if the victim is younger than fourteen. TEX.

PENAL CODE ANN. § 22.021(a)(2)(B). Because the trial court’s judgment listed the correct statute

of offense, we overrule Butler’s second point of error.

III.   We Modify the Judgment and Bill of Costs by Deleting Assessment of Attorney Fees

       Because the trial court found Butler indigent, he was presumed to remain indigent absent

proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),

26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref’d).

Even so, the trial court, which also found Butler indigent after trial for purposes of appeal, assessed

$1,224.75 in attorney fees against him.

       Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the

authority to order the reimbursement of court-appointed attorney fees only if “the court determines

that a defendant has financial resources that enable him to offset in part or in whole the costs of

the legal services provided, including any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art.

26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in

the trial court’s determination of the propriety of ordering reimbursement of costs and fees” of

legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011)

(quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no finding

of the ability of Butler to pay them, the assessment of the attorney fees against him was erroneous.

See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309




                                                  8
S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—

Texarkana 2013, no pet.). The State agrees and concedes the issue.

       “Appellate courts ‘have the authority to reform judgments and affirm as modified in cases

where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435

S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate

cases that have modified judgments)). We sustain Butler’s last point of error and modify the trial

court’s judgment by deleting the assessment of $1,224.75 for attorney fees.

IV.    Conclusion

       We modify the trial court’s judgment and the bill of costs by deleting the assessment of

$1,224.75 for attorney fees. As a result, both the trial court’s judgment and the bill of costs should

reflect $609.00 as the total amount of court costs. As modified, we affirm the trial court’s

judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:        April 7, 2020
Date Decided:          April 14, 2020

Do Not Publish




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