Affirmed and Opinion filed May 30, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00381-CR

                         KENTON FRYER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 21st District Court
                           Bastrop County, Texas
                        Trial Court Cause No. 16,029

                                    OPINION

      A jury convicted appellant of assaulting a public servant and driving while
intoxicated with a child passenger (DWI). The trial court sentenced appellant to
concurrent sentences of confinement for eight years and two years, respectively.
Appellant challenges the sufficiency of the evidence to prove his guilt for the DWI
conviction, and he contends that the trial court erred by denying his request for a
mistrial and by submitting a coercive Allen1 charge. We affirm.2

                           I.      SUFFICIENCY OF THE EVIDENCE

       In his second issue, appellant contends that the evidence is insufficient to
prove that he was intoxicated because the State presented no evidence concerning
appellant’s blood test results or field sobriety tests.

       In a sufficiency review, we consider all the evidence in the light most
favorable to the jury’s verdict to determine whether, based on that evidence and
reasonable inferences therefrom, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d
756, 765–66 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id. at 766.

       To prove the offense of DWI, the State had to prove among other things that
appellant was intoxicated. See Tex. Penal Code § 49.045(a)(1). A person is
intoxicated if the person does not have “the normal use of mental or physical
faculties by reason of the introduction of alcohol” or any other substance into the
body. Id. § 49.01(2)(A).

       The State may prove intoxication by lay opinion testimony. See Emerson v.
State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994); Ritchie v. State, 296 S.W.2d
551, 553 (Tex. Crim. App. 1956). Evidence of blood alcohol concentration or field
sobriety tests is not necessary to sustain a conviction for DWI. See Annis v. State,

       1
           See Allen v. United States, 164 U.S. 492, 501–02 (1896).
       2
         The Supreme Court of Texas transferred this case from the Third Court of Appeals to
this court. See Tex. Gov’t Code § 73.001. There appears to be no conflict between precedent of
the Third Court of Appeals and that of this court on any relevant issue. See Tex. R. App. P. 41.3.

                                                 2
578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (sufficient evidence of intoxication
regardless of chemical breath test, based on the arresting officer’s testimony that
the appellant’s vehicle swerved across a lane-dividing line several times, and that
the appellant appeared disorderly, his speech was “mush-mouthed,” he swayed
from side to side when walking or standing, his eyes were red, and his breath
smelled of alcohol); Fontenot v. State, 486 S.W.2d 941, 941–42 (Tex. Crim. App.
1972) (sufficient evidence of intoxication based on the arresting officers’
testimony that the appellant was intoxicated and that the appellant was unable to
carry on a coherent conversation, was “thick-tongued,” was unsure of his balance,
and had a strong odor of alcohol about him); Vaughn v. State, 493 S.W.2d 524, 526
(Tex. Crim. App. 1972) (sufficient evidence of intoxication based on the arresting
officer’s testimony that the appellant’s car was weaving down the road, appellant
was speeding, his eyes were bloodshot, and he told the officer that he had drank
about six beers); see also Sanchez v. State, No. 14-07-01049-CR, 2008 WL
4647400, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2008, no pet.) (mem.
op., not designated for publication) (“The opinion testimony of the arresting officer
alone is legally sufficient to support a finding of intoxication.”).

      In this case, a husband and wife testified that they saw a woman and young
child “pushed” or “forced” out of appellant’s car on a cold, dark night. The
husband and wife went to assist and learned that appellant and the woman had just
come from a wedding where appellant had been drinking. The husband testified
that he learned appellant had continued drinking in the car, and there was an open
“bottle of Crown” in the console of the car. The wife believed that appellant was
intoxicated based on the way he was behaving and driving recklessly—in and out
of ditches and stopping abruptly. The husband believed appellant had been
drinking because of appellant’s erratic and dangerous driving, there was a smell of


                                           3
alcohol emanating from the car, appellant was yelling obscenities, and “a lot of
what he was saying was incoherent” because of his slurred speech.

      The first deputy who arrived on the scene testified that the deputy smelled
alcohol emanating from appellant. Appellant assaulted this deputy and attempted to
take the deputy’s gun. Another deputy who arrived after the assault and assisted
with arresting appellant testified that there was a strong odor of alcohol coming
from appellant’s breath. The deputy described additional characteristics of
appellant’s intoxication, based on the deputy’s training and experience: appellant
did not follow commands, he had slow and methodical speech, he was unable to
get up off the ground, he fell on his back several times, he exhibited an inability to
stand, and his eyes were bloodshot and glassy. Several deputies assisted to load
appellant into a patrol car. On a video admitted as an exhibit, someone described
appellant as falling asleep.

      Viewing this evidence in the light most favorable to the jury’s verdict, a
rational juror could have found that appellant did not have the normal use of
mental or physical capacities by reason of the introduction of alcohol into his body,
i.e., appellant was intoxicated. See Annis, 578 S.W.2d at 407; Fontenot, 486
S.W.2d at 941–42; Vaughn, 493 S.W.2d at 526.

      Appellant’s second issue is overruled.

                       II.     MISTRIAL AND ALLEN CHARGE

      In his first issue, appellant contends that the trial court erred “by denying
Appellant’s motion for mistrial and submitting an additional Allen charge after the
jury was individually polled and the lone dissenting juror was identified to the
court, thereby coercing the dissenting juror into changing his/her vote to ‘Guilty’
on the charge of Assault on a Public Servant.”


                                          4
A.    Background

      The evidentiary guilt/innocence portion of the trial lasted two days with
eight witnesses and twenty-five exhibits, several of which were audio and video
recordings. On the next day at 11:10 a.m., the jury began deliberations. The jury
sent out six notes requesting evidence, ordering lunch, and asking who needed to
sign the forms. The seventh note at 3:10 p.m. asked, “If everyone doesn’t agree,
what next?” The trial court responded with the following written answer:

      If you could end this litigation by your verdict, you should do so. I do
      not mean to say any individual juror should yield his or her
      conscience and positive conviction, but I do mean that when you are
      in the jury room, you should discuss this matter among yourselves
      carefully and listen to each other and try, if you can, to reach a
      conclusion on the issue. It is the duty of jurors to keep their minds
      open to every reasonable argument. A juror should not have any pride
      of opinion and should avoid hastily forming or expressing an opinion.
      A juror should not, however, surrender any conscientious views
      founded on the evidence unless convinced by his or her fellow jurors
      of his or her error. I am satisfied that you have not deliberated
      sufficiently so that, in good conscience, I cannot accept any report that
      you cannot arrive at an agreement. Accordingly, I return you to your
      deliberation.
The record does not reflect that appellant objected to the trial court’s instruction.

      The jury sent another note asking for the definition of assault, and then at
4:10 p.m. sent the ninth note: “We unanimously agree on count two. We do not
however agree on count one. Statement has been made ‘I am not changing my
mind.’ How do we proceed?”3 The trial court responded with the same written
instruction as before. The record does not reflect that appellant objected.

      The jury sent a note asking to review evidence, and then at 5:10 p.m. the
jury informed the court that it had reached a verdict on count one. The jury
      3
          Count one was assaulting a public servant; count two was DWI.

                                               5
returned a verdict of guilty on each count. Appellant asked the jury to be polled,
and the court asked each juror whether their verdict was guilty for each count. The
jurors responded, “Yes,” except one juror responded, “No,” regarding the count for
assaulting a public servant. Outside the presence of the jury, the following
colloquy ensued:

      THE COURT:        On the polling of the jury as to Count 1, we had one
                        juror that claimed that this is not his verdict. Is there
                        any input from the State?
      [THE STATE]: I would request that you send the charge back to the
                   jury room and order them to continue to deliberate,
                   Your Honor.
      THE COURT:        And from the defense?
      [DEFENSE]:        At this time, Your Honor, I ask that the Court render
                        a hung jury.
      THE COURT:        At this time, what I will do is I will send this back
                        to—Charge Number 1 back to the jury. I will send
                        them again with the same Allen charge that I have
                        previously sent them with and ask them to continue
                        deliberation. We’ll stand in recess.
Appellant did not object to the giving of the Allen charge.

      About an hour and a half later, at 6:35 p.m., the jury returned a verdict of
guilty on each count. The trial court polled the jury, and all jurors answered,
“Yes.” The court accepted the jury’s verdicts and adjudicated appellant’s guilt.

B.    Preservation

      As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion that stated the grounds for the ruling sought with sufficient
specificity to make the trial court aware of the complaint, unless the specific
grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). The

                                          6
specificity requirement is met if the complaint made at trial was clear enough to
the trial court so as to permit the trial court to take corrective action when the
complaint was made. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009).
The complaining party must have informed the trial court what the party wanted,
and why the party was entitled to it. Id. A complaint is not preserved for appellate
review if the legal basis for the complaint raised on appeal varies from the
complaint made at trial. Id.

       An appellant must preserve error regarding a coercive Allen charge. See
Thomas v. State, 312 S.W.3d 732, 740 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d); Freeman v. State, 115 S.W.3d 183, 186 n.2 (Tex. App.—Texarkana 2003,
pet. ref’d); see also Barnett v. State, 189 S.W.3d 272, 277–78 (Tex. Crim. App.
2006) (holding that the appellant’s motion for a mistrial, made after the trial court
gave a “purportedly coercive Allen charge,” adequately preserved error;
“Appellant’s ‘complaint’ on appeal is that the trial court erroneously inquired into
whether the two hold-out jurors could change their verdicts. Thus, appellant was
required to make a timely objection, request, or motion once that inquiry was
made.”).

       Appellant’s request for the trial court to “render a hung jury” sufficed as a
motion for a mistrial due to the jury’s inability to reach a verdict. 4 However,
appellant did not complain to the trial court about the giving of any Allen charge,
nor did appellant argue that continued deliberations—with or without an Allen
charge—would be coercive. On appeal, appellant contends primarily that the trial
court’s Allen charge, given after the trial court discovered the identity of the lone

       4
         A “hung jury” is commonly understood as a jury that cannot reach a verdict by the
required margin. See Hung Jury, Black’s Law Dictionary 987 (10th ed. 2014). A jury’s inability
to reach a verdict is a “classic basis” establishing the need for a mistrial. See Traylor v. State,
567 S.W.3d 741, 744 (Tex. Crim. App. 2018).

                                                7
hold-out juror, was impermissibly coercive. Because appellant’s primary complaint
on appeal was not raised below, it is not preserved. See Thomas, 312 S.W.3d at
740; Freeman, 115 S.W.3d at 186 n.2. Appellant’s reliance on United States v.
Sae-Chua is misplaced because the defendant objected to the giving of an Allen
charge in that case. See 725 F.2d 530, 531 (9th Cir. 1984).5

       Our review is limited to the preserved complaint that a mistrial should have
been declared due to the jury’s inability to reach a verdict.

C.     No Abuse of Discretion to Deny Mistrial

       A trial court’s denial of a motion for a mistrial is reviewed under an abuse of
discretion standard, and the ruling must be upheld if it was within the zone of
reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.
2010). If the jury is polled about whether the verdict is each juror’s, and any juror
answers in the negative, then “the jury shall retire again to consider its verdict.”
Tex. Code Crim. Proc. art. 37.05(a). But a trial court has discretion to discharge a
jury if the jury “has been kept together for such time as to render it altogether
improbable that it can agree.” Id. art. 36.31.

       The trial court is not bound to declare a mistrial at the first sign of jury
impasse, and there is no set time for jury deliberation. Howard v. State, 941
S.W.2d 102, 121 (Tex. Crim. App. 1996), overruled on other grounds by Easley v.
State, 424 S.W.3d 535, 538 & n.23, 541 (Tex. Crim. App. 2014). The length of
time that the jury may be held for deliberation rests in the discretion of the trial
court. Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989). The trial
court’s “discretion in declaring a mistrial is determined by the amount of time the
       5
           Furthermore, Sae-Chua applied a “prophylactic rule” prohibiting federal courts from
questioning their juries regarding numerical division, and this rule “simply has no application to
this state proceeding.” Howard v. State, 941 S.W.2d 102, 124 (Tex. Crim. App. 1996), overruled
on other grounds by Easley v. State, 424 S.W.3d 535, 538 & n.23, 541 (Tex. Crim. App. 2014).

                                                8
jury deliberates considered in light of the nature of the case and the evidence.”
Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App. 1976) (trial court granted
mistrial); see Katzenberger v. State, 439 S.W.3d 566, 570–71 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (applying same factors when trial court
denied mistrial); see also Howard, 941 S.W.2d at 121–22 (considering the “length
of the trial and amount of evidence presented to the jury” in determining that the
trial court did not abuse its discretion by denying mistrial). Furthermore, the jury’s
requests for information and inquiring about evidence shows that the jury is
engaged in ongoing deliberation. See Howard, 941 S.W.2d at 121–22.

      Here, the jury had been deliberating for about six hours, including any
breaks, by the time appellant requested a mistrial. The jury had heard two full days
of testimony from eight witnesses, and there were twenty-five exhibits including
multiple audio and video recordings. While deliberating, the jury actively reviewed
the evidence, sending multiple notes requesting evidence. Although the facts and
law were not incredibly complex, the jury had to deliberate about two distinct
charges—assaulting a public servant and driving while intoxicated with a child
passenger—with each charge requiring proof of independent elements.

      Under these circumstances, we cannot conclude that the trial court’s denial
of appellant’s request for a mistrial was outside the zone of reasonable
disagreement. See Katzenberger, 439 S.W.3d at 568, 570–71 (no abuse of
discretion to deny mistrial when the jury deliberated for ten and a half hours, heard
from ten witnesses over the course of three days, was given five photo exhibits,
sent notes requesting evidence, had to determine guilt on single charge of sexual
assault of a child, and had to resolve issues of credibility); Burnett v. State, 754
S.W.2d 437, 447–48 (Tex. App.—San Antonio 1988, pet. ref’d) (no abuse of
discretion to deny mistrial when the jury deliberated for about twenty-one and a

                                          9
half hours, heard from about thirty witnesses over the course of eight days, and had
to determine guilt for a single charge of capital murder), cited with approval in
Green v. State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992).

      Appellant’s second issue is overruled.

                               III.   CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgments.




                                      /s/      Ken Wise
                                               Justice


Panel consists of Justices Wise, Zimmerer, and Spain.
Publish — Tex. R. App. P. 47.2(b).




                                        10
