Hollie v. State

• Decision Date: 16 April 1998
• Docket Number: 2-97-152-CR,Nos. 2-97-151-C,s. 2-97-151-C
• Citation: 967 S.W.2d 516
• Parties: Johnny Ray HOLLIE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 516

967 S.W.2d 516

Johnny Ray HOLLIE, Appellant, v. The STATE of Texas, State.

Nos. 2-97-151-CR, 2-97-152-CR.

Court of Appeals of Texas Fort Worth.

April 16, 1998.

Tom Zachry, Fort Worth, for Appellant.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Helena F. Faulkner, Greg Miller, Jamie Cummings, Asst. Dist. Attys., Fort Worth, for Appellee.

Before CAYCE, C.J., and CHUCK MILLER (Sitting by Assignment) and LIVINGSTON, JJ.

OPINION

PER CURIAM.

Appellant Johnny Ray Hollie was charged by two indictments with the offenses of aggravated sexual assault and robbery by causing bodily injury. In a trial of both offenses, he pleaded not guilty to each and a jury, after hearing evidence, found him guilty of both offenses. At the completion of the punishment stage of the trial, the jury assessed his punishment in the sexual assault case at confinement for twenty-two years and in the robbery case for seven years, both in the Institutional Division of the Texas Department of Criminal Justice. The jury however recommended that the sentence in the robbery case be suspended and that Hollie be placed on probation. Sentences were ordered to run concurrently. On appeal Hollie brings one point complaining that the trial judge committed reversible error in allegedly coercing a verdict out of the jury, in violation of Hollie's constitutional rights. We affirm.

Trial commenced on Wednesday, January 22, 1997 with voir dire. Testimony began at 9 a.m. on Thursday, January 23, and continued until a weekend recess was declared at the close of the testimony at 3 p.m. on Friday, January 24. On Monday, January 27, the charge was read to the jury and oral argument was had. The jury retired to deliberate at 11:45 a.m. The jury lunched from 12:30 to 1:30 on that day and deliberated until 4:30 when they sent the following note to the trial court:

"We have eleven for guilty, one for not guilty. Not guilty party unable and not willing to state concerns or change mind." The trial court overruled Hollie's motion for mistrial, ¹ urged on grounds that the jury was deadlocked, and proceeded to outline to the parties and the jury the procedure it was going to follow. Thereafter the court followed its previously announced procedure and excused the jury for the night, brought them back the next morning, gave them an additional charge telling them to try to reach a verdict, and told them to deliberate further and to let the court know in an hour what progress had been made. All of this was done over Hollie's objection. Within the hour the jury returned a unanimous verdict of guilty.

It is the events that transpired during jury deliberations that form the basis for Hollie's point. Hollie complains that by giving the additional charge after being informed that the vote was 11-1 in favor of guilt, the trial court was coercing the holdout juror, commenting on the weight of the evidence, and depriving Hollie of his Constitutional right to an impartial jury.

The additional charge given over Hollie's objection by the trial court on Tuesday morning was as follows:

This is in response to your note which I have designated Jury Note No. 2 in which you indicate that you are at a real impasse. 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.

This 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 instruction, 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.

This type of charge, commonly given to juries that seem to have reached an impasse in their deliberations, is popularly referred to as an Allen charge because of the Supreme Court case of that name. See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528, 530-31 (1896) ². The charge given in Allen v. United States was identical to instructions previously given in Connecticut state trial courts and sanctioned by their state supreme court. See id., 164 U.S. at 501, 17 S.Ct. at 157, 41 L.Ed. at 530-31. This charge was of the following tenor:

Although the verdict to which each juror agrees must, of course, be his own conclusion and not be a mere acquiescence in the conclusions of his fellows, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them and with due regard and deference to the opinions of each other. In conferring together the jury ought to pay proper respect to each other's opinions, and listen with candor to each other's arguments. If much the larger number of the panel are for a conviction, a dissenting juror should consider whether the doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, and with equal desire to arrive at the truth, and under the sanction of the same oath. And on the other hand, if the majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to, doubt the conclusions of a judgement which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.

State v. Smith, 49 Conn. 376, 386 (1881). See also Allen, 164 U.S. at 501, 17 S.Ct. at 157, 41 L.Ed. at 531.

This type of charge was justified by the Supreme Court in Allen with the following reasoning:

While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. 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 judgement, 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 he should close his ears to the arguments of men who are equally honest and intelligent as himself. ³

Allen, 164 U.S. at 501-02, 17 S.Ct. at 157. Thus, the trial court's instructions to the jury were held to be proper. To this day, the federal circuit courts have generally approved modified Allen charges that are no more coercive than the original Allen charge. United States v. Handy, 454 F.2d 885, 889 (9th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972).

Hollie urges that coercion is the issue looked at when an appellate court reviews a trial wherein a modified Allen charge was given. He maintains that the combination of the Allen charge and the fact that the trial court knew the numerical split within the jury, coalesced to have a coercive effect on the holdout juror. Because he has found no Texas cases factually on point, Hollie cites and relies on the three following federal cases.

In Brasfield v. United States, the Supreme Court dealt with the subject of coercive effects of communications with a deliberating jury. See Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 135-36, 71 L.Ed. 345, 346 (1926). In Brasfield, the jury had informed the court it was unable to agree on a verdict and the trial court inquired as to what the numerical split was, but was careful to not ask how many were voting for guilty and how many were voting for not guilty. See id., 272 U.S. at 449, 47 S.Ct. at 135, 71 L.Ed. at 346. In reversing the case for the mere asking of such a question, the Supreme Court stated:

We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

Brasfield, 272 U.S. at 450, 47 S.Ct. at 135-36, 71 L.Ed. at 346. Thus the practice of requesting information about how the jury was split was discarded, at least in federal criminal trials. Still, often a jury in its note informing a judge that it is unable to agree on a verdict will volunteer the extent of the split. Such is the situation in the case at bar.

In a case where knowledge of a hung jury's split was volunteered to the trial court, the Allen charge was found to be coercive in the Ninth Circuit, based in part on Brasfield. United States v. Sae-Chua, 725 F.2d 530, 531-32 (9th Cir.1984). In Sae-Chua, the jury informed the trial court sua sponte that they were...