Barnett v. State

• Decision Date: 17 February 2005
• Docket Number: No. 2-03-134-CR.,2-03-134-CR.
• Citation: 161 S.W.3d 128
• Parties: Gary Michael BARNETT, Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

161 S.W.3d 128

Gary Michael BARNETT, Appellant, v. The STATE of Texas, State.

No. 2-03-134-CR.

Court of Appeals of Texas, Fort Worth.

January 20, 2005.

Rehearing Overruled February 17, 2005.

COPYRIGHT MATERIAL OMITTED

William H. "Bill" Ray, Fort Worth, for Appellant.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Sylvia Mandal, Dixie Bersano, Phelesa Guy, Asst. Crim. Dist. Atty's, Fort Worth, for State.

Panel B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Gary Michael Barnett appeals from his conviction by a jury for the offenses of indecency with a child and aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 21.11 (Vernon 2003), § 22.021 (Vernon Supp.2004-05). In his first point, appellant argues that the trial court erred by conversing with the jurors during polling about their propensity to change their verdicts. In his second point, appellant argues that the trial court erred by overruling his motion to quash the indictment. We affirm in part and reverse and remand in part.

II. Background

Appellant was tried on two counts of aggravated sexual assault of a child (counts one and two) and two counts of indecency with a child (counts three and four). The jury originally found appellant not guilty of counts one and two and guilty of counts three and four. Appellant asked the court to poll the jury. In response to appellant's request, the trial court began asking each juror whether the verdict was his or her own. The second juror polled responded that the verdict was not hers. This prompted the trial court to inquire of each juror his or her verdict on each count. From this, the trial court discovered that the verdicts for counts one and two were not unanimous; the jurors were split eleven-to-one in favor of not guilty on count one and eleven-to-one in favor of guilty on count two. The trial court then informed the two hold-out jurors that "we do have a problem with both of you" and asked them whether, if sent back to the jury room to deliberate, they would be able to change their votes, or would they still maintain their votes "as it is." Both jurors said that a change was possible.

After the trial court sent the jurors back to the jury room to deliberate further, appellant made his first request for a mistrial on counts one and two, stating

Article 37.05 says that the Court can—when you're polling a jury, you can ask them if it's their verdict, and if they answer in the affirmative, then you go on; and if it's not, you send them back in the jury room. And the Court's done that, and I certainly don't have any complaint about the Court even going over it with them in detail like you did here a second time.

But what has concerned me, just kind of by the way it's come out, is now we have two jurors who basically have opposite feelings in the way they voted on these two counts. One of them, Mr. Etheridge, voted not guilty to both Count One and Two. Mr. Jones voted guilty to Count One and Two. But the way it all plays out, the entirety of the rest of the jury has voted guilty on Count Two. So we have 11 to 1 for guilty there; we have 11 to 1 for not guilty on Count One.

It appears to me that those two jurors may compromise their verdict in order to achieve a liken result, and that concerns me. I'm not sure it will be unanimous.

The trial court denied appellant's request for a mistrial.

Nineteen minutes later, the jury found appellant not guilty on count one and guilty on counts two, three, and four. Appellant made his second request for a mistrial, voicing his concern that the verdicts may have been compromised, and again the trial court denied his request. The jury assessed appellant's punishment at twenty years' confinement for count two and ten years' confinement, probated, for count three and count four.

III. Jury Coercion

In his first point, appellant complains that the trial court erroneously conversed with the jurors about their propensity to change their verdicts during polling at the guilt/innocence phase of the trial. Appellant argues that the trial court's actions violated article 37.05 of the Code of Criminal Procedure and forced a jury verdict that might not have occurred otherwise.¹ See Batten v. State, 549 S.W.2d 718, 721 n. 5 (Tex.Crim.App.1977) (holding that polling of the jury should not extend beyond asking each juror whether the verdict is his or hers). Appellant contends he was harmed by the trial court's improper polling of the jurors because the jury ultimately found him not guilty on count one, but guilty on count two, assessing him twenty years' confinement on count two, but community supervision on count's three and four. Lastly, appellant asks this court to reverse and dismiss his conviction as to count two only, arguing that a retrial is barred by double jeopardy principles because the trial court forced a verdict when the jury never stated it was deadlocked, and the jury could have ultimately found appellant not guilty on count two, which is what the original verdict was. We will construe his point as asserting that the trial court erred in failing to grant his request for a mistrial in light of the trial court's improper polling of the jury. See TEX.R.APP. P. 38.9; White v. State, 50 S.W.3d 31, 45 (Tex.App.Waco 2001, pet. ref'd) (construing points liberally to serve the interests of justice).

A. Preservation of Error

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. TEX.R.APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R.APP. P. 33.1(a)(2).

1. Timeliness

To be timely, an objection must be made as soon as the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim. App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). The purpose for requiring a timely objection is to "allow the trial court to have the opportunity to make a determination and ruling on the complained of point and then to proceed with the trial under the proper procedural and substantive manners, as appropriately corrected by the trial court." Janecka v. State, 823 S.W.2d 232, 244 (Tex.Crim.App. 1992) (op. on reh'g), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997).

The State argues that appellant did not preserve error because he failed to object when the trial court first exceeded the scope of article 37.05's polling procedure by asking each juror's verdict on each count instead of immediately sending the jury back to deliberate once it became clear that the verdict was not unanimous. However, article 37.05 specifically grants the court authority to individually determine whether the verdict comports with each juror's verdict. Also, appellant does not complain that the trial court violated article 37.05 by inquiring into each juror's verdict on each count. Rather, appellant specifically complains of the trial court's asking the two hold-out jurors whether they could change their votes. It is in relation to this alleged error that we will analyze the timeliness of appellant's request for a mistrial.

Here, the trial court questioned the two hold-out jurors about changing their votes and sent the jury back to the jury room to deliberate. Appellant then requested a mistrial. Allowing appellant to make his request when he did does not run afoul of the purpose for requiring a timely objection. The trial court was in no better position to grant a mistrial immediately after the improper questioning than it was immediately after the jury was sent back to deliberate, when appellant actually made his request. Cf. Lagrone, 942 S.W.2d at 618 (requiring that an objection to the admission of evidence be made as soon as the question calling for an objectionable answer is asked and before the answer is given, thereby allowing the trial court to sustain the objection and to prevent the objectionable answer). Further, unlike an evidentiary objection that is best made before an answer is given, it is the asking of the question itself that creates the error when polling a jury. Therefore, we hold that appellant's request for a mistrial was sufficiently timely to preserve error.

2. Specificity

In his first request for a mistrial, appellant cited article 37.05 and expressed his concern that the two hold-out jurors may compromise their verdicts. Likewise, as soon as the jury sent out notes naming the two jurors and stating that they had changed their votes accordingly, appellant made his second request for a mistrial, again asserting that the verdicts may have been compromised. Although appellant's requests were vague, they were more than adequate to apprise the trial court of the nature of appellant's complaint. See Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim.App.1988) (holding that imprecise objection will be sufficient to preserve error if grounds for the objection are obvious to the court or opposing counsel). We therefore conclude that appellant's requests for a mistrial were sufficient to give the trial court notice as to the nature of his complaint, and we will address his point.

B. Standard of Review for Jury Coercion

Claims of jury coercion often arise when a trial court attempts to encourage a deadlocked jury to reach a verdict. See Hollie v. State, 967 S.W.2d 516, 518 (Tex.App.Fort Worth 1998, pet. ref'd). In those situations, the trial court, administering what is known as an Allen charge, informs the jury, among other things, that if the jury is unable...