Calicult v. State

503 S.W.2d 574, 1974 Tex. Crim. App. LEXIS 1339

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 1974
• Docket: 47704
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of robbery by assault with a prior conviction alleged for enhancement under Art. 62, Vernon’s Ann.P.C.; the punishment, life. The sufficiency of the evidence is not challenged.

Appellant’s sole ground of error is that the trial court coerced the jury into returning a verdict.

The jury retired to consider their verdict on guilt or innocence at 2:10 p. m. After one hour and 20 minutes’ deliberation the jury delivered the following note to the court:

“We have 11 to one ballot. What do we do now?”

The court then instructed the jury orally¹ as follows:

“Do you have another matter in writing ? Hand it over, please.

(Reading)

“We have 11 to one ballot. What do we do now? Paul Russel, Foreman’

“Do you have that file? You need to go back and deliberate some more. The Court can’t turn you loose at any such time as this. The law doesn’t anticipate the Jury come back here, let’s see, you went out ten minutes after two, you have only been out a (sic) hour and 20 minutes. You have got to stay out hours before the Court is entitled to discharge you on account of hung Jury, can’t agree. Every possible effort has to be made for you to get together. That’s what deliberation is for. One has got a right to convince 11, and 11 has (sic) got a right to convince one he is wrong. You have got to argue out every phase of it.

“And, of course, after you have done that, and you have been there long enough for the Court to be sure there is no way in the world that you can reach a Verdict, it’s hopeless for you to stay there, and be punishing you, of course, I will be glad to hear what you have to say at that time. It won’t be until tomorrow, I guarantee you, because I can’t do it under the law.

“So, go back and work on it. If you reach a Verdict, all right, if you can’t, okay, you will just stay there until I think that you have had time to answer —the time the law requires you to be out before a hung Jury can be declared. See what I mean? In other words, the law just don’t (sic) anticipate you go out there and one, two, three, four, any number of you say I believe one way, and the other another. You should argue it out, and you should take your points and deliberate on it. And you have got a right to try to convince each other one way or the other, however you happen to be on a subject. And then when you go in the, that way, then if there is no way the law gives you a right to stick with your Verdict, to stay with your conviction. The law don’t (sic) want you to turn in anything you don’t believe in. And I don’t subscribe to that either.

“The only thing I want you to do is stay out there long enough, until you are reasonably sure you can’t reach a Verdict regardless of how long you may remain out there. In other words, a conviction is just set, there is nothing else to argue, nothing else to do.

“So, if you will just go back in the Jury Room now, and continue your deliberations.” (emphasis supplied)

The jury then retired to consider their verdict. Thereafter appellant objected to the court’s instruction “to the extent that it informed them that they would have to stay until tomorrow, . . . ” This objection and appellant’s motion for mistrial were overruled.

Appellant contends this instruction coerced the jury into reaching a verdict without due deliberation. It is our opinion that the instruction, read as a whole, is not coercive in nature such as to require reversal absent a showing of coercion in fact,² and absent a timely objection prior to submission as contemplated by Article 36.27, V.A.C.C.P.³

The ground of error is overruled.

We have examined the appellant’s pro se written statements and find they do not merit further discussion.

There being no reversible error, the judgment is affirmed.

1 . The State’s brief correctly points out that such oral instructions do not comply with Art. 36.27, Vernon’s Ann.C.C.P., which requires that such communications be in writing and in open court and that the communication be first submitted to the appellant or his counsel for objections and exceptions. In the instant case appellant made no objection that the court’s instructions were not in writing, hence such error was waived. Verrett v. State, 470 S.W.2d 883 (Tex.Cr.App.1971).

2 . The only indication in the record of what effect the instruction had upon the jury is the communication had with the court one half hour after the objected to instruction. Prom said communication it appears the jury was properly pursuing its deliberative function. On the record before us we are therefore unable to find the jury was in fact coerced. Furthermore, appellant has made no allegation of jury misconduct in fact.

3 . It is our opinion that where objection is not made as contemplated by Art. 36.27, supra, an instruction objected to on the ground here raised will constitute reversible error only if the instruction on its face is so improper as to render jury misconduct likely, or jury misconduct is demonstrated to have occurred in fact. If the same standards were to apply for objection first made after submission of the instruction as apply to objection made before submission, the purpose of Art. 36.27, supra, would be defeated. We express no opinion as to whether the instruction herein under consideration would have been properly objectionable under Art. 36.27, supra.