Opinion filed February 2 , 2017



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 15

- 00 010

- C R

__________ 

### ROJELIO ROCKY SANTAN A, JR. , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 104 th District Court

Taylor County, Texas Trial Court Cause No. 19233

- B

M E M O R A N D U M O P I N I O N The jury convicted Rojelio Rocky Santana, Jr. of the felony offense of robbery. Appellant pleaded “true” to a prior felony alleged for enhancement

purposes. The jury assessed punishment at confinement for thirty years in the
Institutional Division of the Texas Department of Criminal Justice. In two issues on appeal , Appellant conten ds that the trial court err ed by giving an “ unrequested ”2

Allen 1 charge during the jury’s punishment deliberations. He asserts in his first issue
that the c harge coerced the jury into assessing a substantial prison sentence, and in his second issue, he asserts that the charge violated Article 36.16 of the Texas Code
of Criminal Procedure

. T EX

. C ODE C RIM

. P ROC

. A NN . art. 36.16 (West 2006 ). We
affirm

. Background Facts
A sset protection employees at a Walmart in Abilene observed Appellant and a female remove two TomTom GPS systems from a locked peg hook. Appellant attempted to make a return with one of the GPS systems , but after being denied, he
exited Walmart with the merchandise . Scott Blair, an asset protection emplo yee at Walmart, followed Appellant outside and confronted him . Blair testified that
, after
he order ed Appellant to go back inside, Appellant pulled a knife and threatened him. Blair backed away
, and Appellant ran off the property. Two other asset protect ion employees, Donald Greenhill and Brent Turner, testified that they saw Appellant
with the GPS in one hand and a s hiny /metal object in his other hand.
Se rgeant Willie Ford of the Abilene Police Department testified that he received a call regarding a robbery at Walmart . A fter driving around the area, Sergeant Ford located Appellant as the person matching the suspect’s description. Appellant was taken into custody
, but officers did not find the GPS or a knife. Appellant was indicted for aggravated robb ery and the lesser included offense of robbery. The jury acquitted Appellant of aggravated robbery but found him guilty of robbery. Appellant ha d prior convictions for assault family violence, unlawful possession of stolen mail, evading arrest, and posses sion of methamphetamine with
intent to deliver. The indictment contained an enhancement paragraph alleging

1 See Allen v. United States , 164 U.S. 492, 501 (1896).3

Appellant’s prior methamphetamine conviction

. 2 T he jury found t he enhancement

to be “true” after Appellant pleaded “true” to it. Accordingly, the punishment for Appellant’s second

- degree felony conviction for robbery was enhanced to the punishment for a first

- degree felony

. See T EX

. P ENAL C ODE A NN . § 12.42(b) (West Supp. 2016 ). The jury began deliberating on punishment at 11:4 7 a.m. and
, at 3:21 p.m. , sent out a note stating, “What will happen if we are undecided?” In discussing the note with counsel, the trial court suggested giving the jury an Allen charge
, and both
sides expressly approved of the Allen charge being given to the jury

. The trial court then submitted the following charge to the jury without objection :

If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the c ourt to declare a mistrial as to punishment and discharge the jury. The case will still be pending, and it is reasonable to assume that the issue of punishment will be tried again before another jury at some future time. Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear t he 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 requested 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. Don ’ t do violence to your c onscience
, but continue deliberating. After receiving this supplemental charge, t he jury continued deliberating from 3:26 p.m. until 5:05 p.m. before reaching a verdict of confinement for thirty years.

2 By stipulation, t he State also offered Appellant’s other prior convictions into evidence during the pu nishment phase.4 Analysis In his first issue, Appellant contends that the trial court err ed by giv ing the
Allen charge. He asserts that the charge was “unrequested” because the jury did not inform the trial court that it was deadlocked. He contends that the effect of an unrequested Allen charge was to coerce the jury into assessing a substantial prison

sentence. We note at the outset that Appellant did not preserve his complaint that the
Allen charge was coercive. In order to preserve error for appellate review , a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. T EX

. R. A PP

. P . 33.1(a). When a defendant does not object to the trial court’s submission of an Allen cha rge, error is not preserved

. Thomas v. State , 312 S.W.3d 732, 740 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref’d) (citing Freeman v. State , 115 S.W.3d 183, 186 n.2 (Tex. App.

— Texarkana 2003, pet. ref ’ d) ) (finding that the failure to object to an Allen charge waives error)

. In a discussion with counsel, t he trial court read the Allen charge that it proposed giving to the jury

. When asked by the trial court if the proposed Allen charge was “acceptable,” Appellant’s trial counsel replied in the affirmative. Accordingly, Appellant has not preserve d any complaint about the Allen charge for appellate
review. Moreover, the Allen charge in this case was neither unrequested nor coercive.
T he jury sent a note to the trial court asking, “What will happen if we are undecided?” The Allen charge given by the trial court directly answered the jury’s question. Furthermore, b oth the United States Supreme Court and the Texas Court of Criminal Appeals have sanctioned the use of an Allen charge

. See Allen
, 164 U.S.
at 501

– 02; Howard v. State
, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996). An Allen charge instructs a deadlocked jury to continue deliberating to reach a verdict if the jurors can conscientiously do so. See Barnett v. State , 189 S.W.3d 272, 277 n.135

(Tex. Crim. App. 2006) (The Allen charge “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.” ). Appellant argues that the jury did not s pecifically indicate that it was
deadlocked. Assuming Appellant’s contention is correct, it is not error for a trial court to give an Allen charge to a jury before the jury indicates that it is deadlocked. Loving v. State , 947 S.W.2d 615, 620 (Tex. App.

— Austin 1997, no pet.); see also Perez v. State , No. 08

- 1 2

- 00340

- CR, 2015 WL 4940375, at *13 (Tex. App.

— El Paso Aug

. 19, 2015, no pet.) ; Black v. State , No. 05

- 10

- 01558

- CR, 2012 WL 206501, at *2 (Tex. App.

— Dallas January 25, 2012, pet. ref’d) (mem. op., not designated for publication). As noted in Loving , m any courts believe an Allen charge is less coercive if submitted before a jury comes to an impasse in reaching a verdict

. 947 S.W.2d at 619.
T he primary inquiry when considering the propriety of an Allen charge is its “coercive effect” on juror deliberation in its context and under all circumstances.
Howard
, 941 S.W.2d at 123 (citing Lowenfield v. Phelps
, 484 U.S. 231, 237 (1988));
Freeman , 115 S.W.3d at 186

– 87. An Allen charge that pressures jurors into reaching a particular verdict or improperly conveys the court’s opinion of the case is unduly
coercive. West v. State , 121 S.W.3d 95, 107

– 08 (Tex

. App.

— Fort Worth 2003, pet.
ref ’ d)

. Conversely , a charge that speaks to the jury as a whole and encourages jurors to reexamine their views without surrendering honest convictions is not coercive on
its face. Freeman , 115 S.W.3d at 187. Here, the charge addressed the entire jury
and instructed the jurors to continue deliberating without doing violence to their
conscience. Additionally, the trial court’s Allen charge did not pressure jurors into reaching a particular verdict or convey th e court’s opinion of the case in any way.
T he Court of Criminal Appeals, this court, and many of our sister courts have approved Allen charges containing nearly identical language. See Arrevalo v. State
,6

489 S.W.2d 569, 57 1

– 72 (Tex. Crim. App. 1973) ; Boswell v. State , Nos. 11

- 12

- 00014

- CR, 11

- 12

- 00015

- CR, 2014 WL 1117024, at * 6 (Tex. App.

— Eastland March 20, 2014, pet. ref’d) (mem. op., not designated for publication); Draper v. State , 335 S.W.3d 412, 417 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref ’ d) ; West , 121
S.W.3d at 108

– 09. Accordingly, we conclude that the trial court did not commit error in submitting this Allen charge to the jury. Appellant’s first issue is overruled. In his second issue, Appellant contends that the trial court violated
Article 36.16 by giving the Allen charge

. The pertinent portion of Article 36.16 provides: After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge, the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in Article 36 .15

. In order to preserve an A rticle 36.16 complaint for appellate review
, a defendant must object at trial on the basis that the submission of an Allen charge
would violate A rticle 36.16. Loving , 947 S.W.2d at 619; see Bledsoe v. State
, 21 S.W.3d 615, 622 (Tex. App.

— Tyler 2000, no pet.) (holding that an A rticle 36.16 complaint was not preserved when trial objection “did not implicate article 36.16” but instead merely argued that portion of proposed Allen charge was improper);
Duc Vu v. S tate , 750 S.W.2d 8, 10 (Tex. App.

— Texarkana 1988, pet. ref ’ d) (“An objection to a failure to follow statutory procedures is necessary to preserve a claimed error when the court gives an Allen charge to a deadlocked jury.”). Appellant has not preserved a c omplaint under Article 36.16 b ecause he did not object to the Allen charge on any basis

. Moreover, Article 36.16 permits a further charge if requested by the jury. As noted previously, the jury presented a request for7

further instruction from the trial court. Accordingly, the trial court did not violate Article 36.16 by giving the Allen charge in answer to the jury’s question.
B ecause we find that the trial court did not commit error by submitting the
Allen charge to the jury, we need not address Appellant’s contention that he suffered egregious harm under Almanza

. 3 See Posey v. State , 966 S.W.2d 57, 6 0 (Tex. Crim. App. 1998) (Neither Almanza harm standard applies unless an appellate court first
finds “error” in the jury charge .) . Appellant’s second issue is overruled. This Court’s Ruling
We affirm t he judgment of the trial court.

JOHN M. BAILEY
JUSTICE

February 2, 2017 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.

3 Almanza v. State , 686 S.W.2d 157, 160

– 74 (Tex. Crim. App. 198 5 ) (op. on reh’g).