COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-306-CR

JACK DARL HARTMAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Jack Darl Hartman appeals his conviction for felony driving while

intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Hartman

contends that the trial court erred by not declaring a mistrial when the jury remained

deadlocked following the submission of an “Allen charge.”

2 We will affirm.

1 See Tex. R. App. P. 47.4.

2 Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 156 (1896).
II. Factual and Procedural Background

A grand jury indicted Hartman for felony DWI. Hartman pleaded not guilty and

waived arraignment. At the close of the first jury trial, the jury became deadlocked,

and the trial court declared a mistrial.

At the close of the second trial’s evidence and arguments, the trial court

submitted the jury charge without objection. At 4:04 p.m., the jury notified the court

that it was “deadlocked at [eight] guilty and [four] not guilty.” The trial court then

issued a modified Allen charge.

3 At 5:14 p.m., the jury sent an additional note that

they remained deadlocked “at [eleven] guilty and [one] no[t] guilty” and were “unable

to reach unanimous decision without violence of conscience.” At 5:24 p.m., the trial

court responded and instructed the jury, “Keep deliberating.” Sixteen minutes later,

the jury returned a verdict of guilty. Hartman pleaded true to the State’s

3 The modified Allen charge read:

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 this case will be tried again before another jury at some

future time. Any such future jury will be 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.

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enhancement paragraph. The jury assessed Hartman’s punishment at fourteen

years’ confinement. Hartman timely filed his notice of appeal.

III. Discussion

Hartman contends that the trial court’s instruction to the jury to “keep

deliberating” caused the jury to reach a coerced verdict. The State responds that

Hartman failed to preserve this issue for appellate review because he did not make

a timely objection to the trial court’s instruction.

A. Standard of Review

An objection must be made as soon as the basis for the objection becomes

apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942 S.W.2d 602, 618 (Tex.

Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk v. State, 729 S.W.2d 749, 753

(Tex. Crim. App. 1987). 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;

Ball v. State, No. 2-06-00268-CR, 2007 WL 2744883, at *2 (Tex. App.—Fort Worth

Sept. 17, 2007, pet. ref’d). 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); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

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B. Analysis

Hartman complains that the trial court’s answer to the jury to “keep

deliberating,” in response to the jury foreman’s note that the jury remained

deadlocked after receiving an Allen charge, caused the jury to reach a coerced

verdict. However, there is no evidence in the record that Hartman objected to the

trial court’s written response to the jury or that the trial court failed to notify Hartman

of the jury communication.

Article 36.27 of the Texas Code of Criminal Procedure governs jury

communications with the trial court and provides:

When the jury wishes to communicate with the court, it shall so

notify the sheriff, who shall inform the court thereof. Any

communication relative to the cause must be written, prepared by the

foreman and shall be submitted to the court through the bailiff. The

court shall answer any such communication in writing, and before giving

such answer to the jury shall use reasonable diligence to secure the

presence of the defendant and his counsel, and shall first submit the

question and also submit his answer to the same to the defendant or

his counsel or objections and exceptions, in the same manner as any

other written instructions are submitted to such counsel, before the

court gives such answer to the jury, but if he is unable to secure the

presence of the defendant and his counsel, then he shall proceed to

answer the same as he deems proper. The written instruction or

answer to the communication shall be read in open court unless

expressly waived by the defendant.

All such proceedings in felony cases shall be a part of the record

and recorded by the court reporter.

Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006). The purpose of this law is to

notify a defendant of a jury question and of the court’s proposed answer, if possible,

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and to give the defendant an opportunity to be heard and “urge objections, if any, to

such [answers].” Word v. State, 206 S.W.3d 646, 650 (Tex. Crim. App. 2006)

(quoting Edwards v. State, 558 S.W.2d 452, 454 (Tex. Crim. App. 1977)).

A silent record creates the presumption that a trial court complied with article

36.27. Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). In Word, the

court of criminal appeals affirmed Green by holding:

Nothing in Article 36.27 (including its second paragraph) expressly

indicates a legislative intent that appellate courts should disregard

usual rules of procedural default and rules of appellate procedure and

presume that a defendant had no opportunity to object to a trial court’s

answers to jury questions when the record is silent.

Word, 206 S.W.3d at 652.

In Green, a capital murder case, the appellant never objected to the judge’s

responses to numerous notes sent by the jury. Green, 912 S.W.2d at 191–92. The

court of criminal appeals stated, “Since we presume the trial court’s response was

in open court and in appellant’s presence, we also presume appellant agreed to it.”

Id. at 193. The court therefore held, based on the presumption that the appellant

agreed, that the appellant waived any error by not objecting to the judge’s responses

to the jury. Id.

Similar to Green and Word, this court assumes that the trial court’s response

to the jury question was in open court, in Hartman’s presence, and that Hartman

agreed to it. See Green, 912 S.W.2d at 193; Word, 206 S.W.3d at 651–52.

Because he did not object at trial, Hartman failed to preserve his complaint for

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appellate review. See Green, 912 S.W.2d at 192; Word, 206 S.W.3d at 652. We

overrule Hartman’s sole issue.

IV. Conclusion

By failing to timely object to the trial court’s written response to the jury to

“keep deliberating,” Hartman failed to preserve his claim that the response was

unduly coercive. We affirm the trial court’s judgment.

ANNE GARDNER

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 12, 2010

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