AFFIRMED as MODIFIED and Opinion Filed December 2, 2020
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00703-CR
MICHAEL MARTESE JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1875043-U
MEMORANDUM OPINION Before Justices Whitehill, Pedersen, III, and Reichek Opinion by Justice Whitehill A jury convicted appellant of murder, found an enhancement true, and
assessed punishment at thirty years in prison.
Appellant now argues that: (i) he was denied his constitutional and statutory
rights to the best interpretive deaf translation services; (ii) the trial court erred by
denying a new trial; (iii) bad character evidence was erroneously admitted during
the guilt/innocence trial phase; (iv) the trial court abused its discretion by allowing
testimony concerning gang activity; (v) the trial court abused its discretion by issuing two Allen charges1; and (vi) the judgment should be modified to reflect the special
findings applicable to the court’s deadly weapon finding.
We conclude that the absence of a second interpreter did not substantially
impair appellant’s defense, and therefore the trial court did not err by denying
appellant’s motion for new trial.
We further conclude that appellant did not preserve his complaint about bad
character evidence, and the evidence was not erroneously admitted because it was
relevant and its probative value outweighed its prejudicial effect. For the same
reasons, evidence of gang affiliation was not erroneously admitted during the
punishment phase.
We further conclude that appellant did not preserve his complaint about the
Allen charges, but even had it had been preserved, the charges were not unduly
coercive.
Finally, the record supports the requested judgment modification.
We therefore modify the judgment, and as modified, affirm.
I. BACKGROUND
On the evening in question, appellant and his wife met several acquaintances
at a car wash where they frequently congregated. Those acquaintances include
1 An Allen instruction is a supplemental charge sometimes given to a deadlocked jury that emphasizes the importance of reaching a verdict. Allen v. United States, 164 U.S, 492 (1896); Traylor v. State, 567 S.W.3d 741, 744 (Tex. Crim. App. 2018). –2– Arron Mobley, Ramon Whaley, Christopher Cardona, and Frederick Ware, the man
who was murdered.
Ware sold drugs for appellant, and appellant was angry because someone had
recently stolen drugs from Ware that appellant had provided to sell.
Appellant, his wife, Mobley, and Ware left the car wash in a Dodge Charger
and Whaley and Cardona followed behind them in a jeep. The group first stopped
at a CVS to look for the person suspected of stealing the drugs from Ware. Ware
and Mobley argued along the way about Ware owing appellant money for the drugs.
According to Mobley, appellant told Ware, “You better have my money, and if you
don’t, its going to be some problems.”
The CVS stop proved unsuccessful. The group then arrived on a dead-end
street by a wooded area. Appellant, Ware, and Mobley got out of the car and argued
about money.
As the argument continued, appellant pulled out a gun, handed it to Mobley
and said, “When I count to three, smoke this fool.” Mobley complied.
Ware’s body was subsequently discovered lying by the side of a dead-end
road. He had head trauma and a ripped jacket, and casings from a 9-millimeter Luger
were found near the body. The medical examiner ruled that the cause of death was
a gunshot wound that entered the skull.
Mobley later agreed to testify for the State in exchange for a ten-year prison
sentence. Appellant was charged with murder and the case was tried to a jury.
–3– The jury found appellant guilty and assessed punishment at thirty years in
prison. Judgment was entered accordingly, and this appeal followed.
II. ANALYSIS
A. First, Second, and Third Issues: Was appellant denied his rights to interpretive deaf translation services?
No. The record reflects that appellant had a basic understanding of the witness
and the absence of a second interpreter did not substantially affect his defense.
1. Standard of Review and Applicable Law
A trial court’s decision whether to provide deaf interpretive services to a
material witness should not be disturbed absent a clear abuse of discretion. See
Baldera v. State, 517 S.W.3d 756, 778 (Tex. Crim. App. 2016) (citing Linton v.
State, 275 S.W.3d 493, 502 (Tex. Crim. App. 2009)). We do not reverse the trial
court’s decision unless it lies outside the zone of reasonable disagreement. Linton,
275 S.W.3d at 503. Thus, the trial judge has wide discretion in determining the
adequacy of interpretive services. Id. at 500.
Article 38.31 states that if a defendant or a witness is deaf, the court “shall
appoint a qualified interpreter to interpret the proceedings in any language that the
deaf person can understand, including but not limited to sign language.” TEX. CODE
CRIM. PROC. art. 38.31(a). A person is deaf under article 38.31 when the person
“has a hearing impairment . . . that inhibits the person’s comprehension of the
proceedings or communication with others.” Id. art. 38.31(g)(1); see Ex parte
Cockrell, 424 S.W.3d 543, 546 (Tex. Crim. App. 2014). –4– Article 38.31 serves the guarantee of due process and implements the
constitutional right of confrontation, which includes
the right to have trial proceedings presented in a way that the accused can understand. Under [article 38.31] and the relevant constitutional provisions, the trial court has a duty to devise a communication solution that provides the particular defendant with “that minimum level” of understanding that is constitutionally required.
Linton v. State, 275 S.W.3d 493, 501 (Tex. Crim. App. 2009) (footnote omitted); see
also U.S. Const. amends. V (due process rights), VI (in all criminal prosecutions,
“the accused shall enjoy the right to . . . be confronted with the witnesses against
him”).
The ultimate question is whether any inadequacy in the defendant’s or
witness’s understanding made the trial fundamentally unfair. Linton, 275 S.W.3d
at 503. The trial is fundamentally unfair when the defendant is unable to assist in
his own defense. Id. at 504. 100% comprehension, however, is “not the
constitutional requirement.” Id. at 508.
2. The testimony at issue
Mobley is hearing-impaired and testified for the State. Windy Rossi, a sign-
language interpreter, was utilized to sign counsel’s questions to Mobley. Mobley
testified that despite his hearing issues, he could hear what the prosecutor was asking
him, that he had been reading lips since he was eleven years old, and that people can
carry on conversations with him without utilizing sign-language. Mobley verbally
answered questions asked of him and his responses were not interpreted by Rossi.
–5– After Mobley’s direct examination, appellant’s trial counsel objected to the
use of only one interpreter.2 The judge excused the jury to consider the objection.
During the hearing, Rossi testified that the use of two sign-language
interpreters is typical if a witness’ testimony exceeds an hour-and-a-half. She also
said that the second interpreter is used to monitor the first interpreter’s message.
Rossi acknowledged that Mobley’s responses were not as clear as a person who
could hear normally and that some of his words were hard to understand.
On cross-examination, Rossi testified that Mobley’s responses were
consistent with the State’s questions. She also said that the State accurately repeated
Mobley’s answers. After inquiry by the trial court, Rossi admitted that two
interpreters were sent to the hearing but one was not certified. Nonetheless, Rossi
informed the trial court that she could handle the proceedings without a second
interpreter since Mobley would be speaking his own responses. Rossi also said that
she was adequately able to translate for Mobley. The trial court overruled
appellant’s objection.
Nothing in the record suggests that appellant did not understand Mobley to
the detriment of his own defense. Although the record does not show how much
time Mobley’s testimony consumed, there are thirty-three pages of direct
2 Appellant’s motion for new trial also objected to the use of only one interpreter. Affidavits from trial counsel stating that they were unable to understand Mobley were attached to the motion. During the hearing, counsel also provided the court with standards addressing best practices for sign-language interpreters at trial. The court reviewed the exhibits and denied the motion. –6– examination transcript, followed by a significant break. During that break,
appellant’s decision concerning testifying was placed on the record, the court
conducted the hearing on appellant’s second interpreter objection, and appellant
cross-examined two other witnesses. Mobley’s cross-examination followed,
consisting of seventeen pages in the record. Thus, there is nothing to establish that
Rossi reached a state of mental exhaustion that would trigger the need for a second
interpreter.
Appellant further insists that the absence of a second interpreter deprived him
of his constitutional right of confrontation because the inability to understand the
witness impeded his cross-examination. The Confrontation Clause, however,
“guarantees only an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, a defendant
might wish.” Balderas, 517 S.W.3d at 778–79 (citing Johnson v. State, 433 S.W.3d
546, 557 & n.48 (Tex. Crim. App. 2014).
During cross-examination, appellant’s counsel did not indicate that he could
not fully understand Mobley’s responses, nor did he object that he could not
effectively cross-examine Mobley. In addition, counsel did not ask Mobley to sign
his answers or otherwise have the interpreter speak for him.
To the contrary, counsel cross-examined Mobley along much the same lines
as other witnesses. The questions and answers do not suggest an absence of
comprehension or an impaired defense.
–7– Under these standards, we cannot conclude that the trial court abused its
discretion or violated appellant’s constitutional rights by not appointing a second
interpreter. Article 38.31(a) and Linton instruct us that we measure the trial court’s
decision on interpretive services by whether the defendant has a basic understanding
of the proceedings to support his participation in them. See TEX. CODE CRIM. PROC.
art. 38.31(a); Linton, 275 S.W.3d at 500–04; see also Brazell v. State, 828 S.W.2d
580, 581 (Tex. App.—Austin 1992, pet. ref’d) (a deaf defendant must have a
“minimum understanding” of the proceedings); Lincoln v. State, 999 S.W.2d 806,
810 (Tex. App.—Austin 1999, no pet.) (“Having observed appellant throughout the
trial, the district court was in the best position to judge the credibility of appellant’s
claim that he did not hear the proceedings.”).
The record here reflects such a basic understanding. Accordingly, we resolve
appellant’s first three issues against him.
B. Fourth Issue: Was bad character evidence erroneously admitted during the guilt/innocence phase of trial?
No. Appellant did not object to the evidence as extraneous bad act or
character evidence under Rule 404(b), so this aspect of appellant’s argument was not
preserved for our review. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144 S.W.3d
535, 537 (Tex. Crim. App. 2004) (legal basis of appellate complaint must comport
with the trial objection).
–8– And as to the objections that appellant made under Rule 401 and 403, we
conclude the evidence was relevant and the trial court could reasonably conclude
that its probative value was not outweighed by its prejudicial effect.
A trial court’s decision regarding the admissibility or exclusion of evidence is
reviewed under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895,
908 (Tex. Crim. App. 2016). A reviewing court must consider the ruling in light of
what was before the trial court at the time the ruling was made and, because trial
courts are in the best position to decide questions of admissibility, we uphold the
trial court’s decision when that decision is within the zone of reasonable
disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
In other words, a trial court abuses its discretion only if its decision is “so clearly
wrong as to lie outside the zone within which reasonable people might disagree.”
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not
abuse its discretion if any evidence supports its decision. See Osbourn v. State, 92
S.W.3d 531, 538 (Tex. Crim. App. 2002). A reviewing court should therefore
uphold the trial court’s evidentiary ruling if it was correct on any theory of law
applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).
–9– Rule 403 allows the exclusion of evidence if its probative value is
substantially outweighed by a danger of unfair prejudice or misleads the jury. See
TEX. R. EVID. 403. “The probative force of evidence refers to how strongly it serves
to make the existence of a fact of consequence more or less probable.” Gonzalez v.
State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018). A trial judge has substantial
discretion in balancing probative value and unfair prejudice. See Powell v. State,
189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
Relevant evidence is presumed to be more probative than prejudicial.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Evidence is
unfairly prejudicial if it has the capacity to lure the factfinder into declaring guilt on
a ground other than proof specific to the offense charged. Manning v. State, 114
S.W.3d 922, 928 (Tex. Crim. App. 2003).
When conducting a Rule 403 balancing test, courts should consider: (i) the
evidence’s probative force; (ii) the proponent’s need for the evidence; (iii) the
evidence’s potential to suggest a decision on an improper basis; (iv) the evidence’s
tendency to distract the jury from the main issues; (v) any tendency for the jury to
give the evidence undue weight because it has not been fully equipped to evaluate
the evidence’s probative force; and (vi) the likelihood that presenting the evidence
will consume an inordinate amount of time. See Gigliobianco v. State, 210 S.W.3d
637, 641–642 (Tex. Crim. App. 2006).
–10– Though the existence of a motive is generally not necessary to support a
conviction, evidence establishing a motive is generally admissible because it is a
factor that is related to a defendant’s guilt or innocence. Knox v. State, 934 S.W.2d
678, 682 n.10 (Tex. Crim. App. 1996).
Drug transactions between a defendant and a complaining witness may be
used to establish a motive for the charged offense. See Saxer v. State, 115 S.W.3d
765, 775 (Tex. App.—Beaumont 2003, pet. ref’d) (evidence that the complaining
witness gave marijuana to the defendant and owed the defendant money for drugs
the defendant provided to the complaining witness was relevant to establish motive).
In addition, threats that occur after the commission of a charged offense may
also reflect a consciousness of guilt. See Hedrick v. State, 473 S.W.3d 824, 830
(Tex. App.—Houston [14th Dist.] 2015, no pet.). Such threats reflect upon a
defendant’s state of mind because they are designed to reduce the likelihood of
prosecution, conviction, or incarceration for the charged offense. Id. (citing Ransom
v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994)). Thus, evidence of such
threats may tend to make a defendant’s state of mind for the charged offense more
or less probable.
2. The Evidence
Appellant argues that evidence concerning his drug sales and threat to one of
the witnesses after the shooting was erroneously admitted. Specifically, he
complains about Mobley’s and Cardona’s testimony.
–11– Mobley testified that appellant gave Ware drugs to sell. A week before the
murder, Mobley was in the back seat of a car when Ware met a woman at the car
wash to sell her some of the drugs appellant had provided. During the transaction,
Ware got out of the car to use the restroom and Mobley stepped out of the car to call
his mother. The woman then locked the doors to the car and drove off with the
drugs.
Afterwards, Ware called appellant and told him what happened. Appellant
told Ware that he had better have the money for the lost drugs. The following week,
Mobley and Ware broke into several cars to make the money owed to appellant.
Mobley said that during the car ride from the car wash to the dead end,
appellant’s conversation with Ware was focused on Ware’s decision to use
appellant’s money to buy drugs for personal use. When they got out of the car,
appellant demanded his money from Ware, but he didn’t have it. Appellant then
directed Mobley to kill Ware.
Cardona testified that he had seen Ware sell drugs. According to Cardona, on
the evening in question, appellant told Ware, “I’m going to teach you not to play
with my f–ing money.” He also testified that appellant asked Ware, “where is my f–
ing money? I’m going to kill you.”3
3 Whaley also testified that appellant was yelling at Ware about money before the shooting.
–12– This testimony concerning appellant’s relationship with Ware and the drug
transactions not only establish appellant’s motive for setting up Ware’s death, but
also reflect on appellant’s state of mind to intentionally kill Ware. Thus, the
evidence made appellant’s mens rea for ordering Ware’s death more probable than
it did without it.
Likewise, appellant’s instruction and threat to Whaley also reflects his state
of mind during the shooting, making it more probable that Ware’s death was
intentional. Specifically, Whaley testified that on the same day of the shooting,
appellant instructed him to sell the weapon used to kill Ware. The next day,
appellant told Whaley he wanted to meet with him. When they met, appellant told
Whaley that if he told anyone about what took place, appellant would kill him. This
threat is relevant to appellant’s state of mind and suggests an attempt to avoid the
consequences of his actions. Thus, the complained-of evidence was relevant.
None of the foregoing evidence was overly prejudicial under Rule 403
standards. Under Gigliobianco, the probative force of both appellant’s drug sales
and threat to Whaley weigh strongly in favor of the State’s theory that Ware’s death
was intentionally carried out at appellant’s direction. And the State’s need for the
evidence was strong. Without the evidence, appellant would have been free to argue
that Mobley acted of his own accord and there would have been no explanation about
why appellant wanted to kill Ware. Thus, the first two Gigliobianco factors weigh
heavily in favor of admitting the evidence. See Gigliobianco, 210 S.W.3d at 641.
–13– The third and fourth factors, the tendency of the evidence to suggest a decision
on an improper basis and the evidence’s tendency to distract the jury, also favor
admission. See Gigliobianco, 210 S.W.3d at 641. Appellant’s drug transactions and
the threat against Whaley focused on appellant’s mental state and motive for
orchestrating the murder. Contrary to being distracting, appellant’s mental state was
one of the elements the State was required to prove. Moreover, the trial court
instructed the jury that the evidence could only be considered to determine “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Thus, we presume that the jury did not give the evidence undue weight.
See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (we presume jury
follows court’s instructions).
Finally, the evidence did not consume an inordinate amount of time and was
not repetitive. See Gigliobianco, 210 S.W.3d at 641. Whaley was the only witness
who testified about the threat, and while Mobley and Cardona both testified that
Ware sold drugs, Mobley was the only witness who testified that Ware did so on
appellant’s behalf. All this testimony consumed less than twenty pages of a ten-
volume transcript.
Because the Gigliobianco factors favor of admitting the evidence, we cannot
conclude the trial court erred in doing so. We therefore resolve appellant’s fourth
issue against him.
–14– C. Fifth Issue: Was evidence concerning gang activity erroneously admitted?
No. The evidence was relevant to punishment and its probative value
outweighed its prejudicial effect.
A trial court’s decision regarding the admissibility or exclusion of evidence is
reviewed under an abuse of discretion standard. Johnson, 490 S.W.3d at 908. A
trial court abuses its discretion only when its decision lies outside the zone of
reasonable disagreement. Billodeau, 277 S.W.3d at 39; Montgomery, 810 S.W.2d
at 391.
During the punishment stage of trial, evidence may be offered “as to any
matter the court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an opinion
regarding his character . . . .” TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). A court,
nevertheless, “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403.
“As a general rule, evidence of a defendant’s gang affiliation and the . . .
activities of that gang are relevant and admissible at the punishment phase to show
the defendant’s character.” Lara v. State, No. 05-17-00467-CR, 2018 WL 3434547,
at *8 (Tex. App.—Dallas July 17, 2018, pet. ref’d) (not designated for publication) –15– (citing Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995). Gang
affiliation may be documented by several means, including by tattoos. See TEX.
CODE CRIM. PROC. art. 61.02(c)(2).
Appellant objected that the State’s evidence concerning his gang affiliation
was not relevant and was “overly prejudicial.” The trial court overruled the
objection. But on appeal, appellant argues only that the evidence violated TEX. R.
EVID. 404(b) because it was offered to show character conformity. Because the trial
objection does not comport with the issue raised here, the issue was not preserved
for our review. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012);
TEX. R. APP. P. 33.1.
Additionally, even had if appellant’s issue been preserved, we cannot
conclude the evidence was erroneously admitted.
The evidence at issue consisted of testimony from Detective Barrett Nelson
of the Dallas Police Department regarding appellant’s gang affiliation and
photographs of various tattoos on appellant’s body that Nelson reviewed with the
jury. Nelson ultimately concluded that appellant was a member of the 59 Bounty
Hunter Blood gang. According to Nelson, the gang sought money, power, and
respect through the sale of narcotics in the city.
Nelson also testified that appellant’s tattoos indicated that appellant was a
drug dealer who worked in the same area as the car wash frequented by appellant,
–16– Ware, and Mobley. That area of Pleasant Grove, which was known as “Greedy
Grove” to gang affiliated drug runners, was specifically inked on appellant’s body.
Nelson also said that appellant’s tattoos reflected appellant operated a drug operation
as the man in charge, and that was how he made a living.
Nelson explained that the phrase “On Blood” was an expression used by
individuals admitting gang membership and meant “on my gang,” and appellant’s
use of that phrase as “admitting gang membership.”
Appellant’s tattoos and Nelson’s testimony were relevant to the issue of
whether it was more probable or not that appellant was affiliated with a gang. Such
affiliation relates directly to Ware’s murder, and to killing Ware at appellant’s
direction because he lost appellant’s drugs and the sale proceeds.
Further, the tattoos revealed that appellant had engaged in this lifestyle for
some time because many tattoo references dated back to the early 2000s. The tattoos
also supported Nelson’s theory that appellant made a living selling drugs. Thus, the
photographs and testimony were relevant.
Having determined that the evidence was relevant, we must still determine
whether the probative value outweighed an unfairly prejudicial effect. See TEX. R.
EVID. 403. To this end, we note that Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be more probative
than prejudicial. Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009).
There is nothing to rebut that presumption here.
–17– While the evidence was unfavorable to appellant, it was not unfairly
prejudicial. The gang evidence was tailored to the purpose allowed by article 37.07.
See Lara, 2018 WL 3434547 at *8. And there is nothing to establish that the
evidence was so unfairly prejudicial that there was a clear disparity between the
degree of prejudice and the probative value. Jackson v. State, 05-13-00579-CR,
2014 WL 3955171, at *4 (Tex. App.—Dallas Aug. 14, 2014, no pet.) (mem. op., not
designated for publication). Indeed, the punishment range for the offense
(enhanced) is not more than ninety-nine years or life and not less than fifteen years
and a fine not to exceed $10,000. See TEX. PENAL CODE § 12.42(c)(1). Appellant
received a mid-range sentence of thirty years in prison. This demonstrates that the
jury was not unduly prejudiced. See Garcia v. State, No. 05-19-01165-CR,2020 WL
4381770, at *4 (Tex. App.—Dallas July 31, 2020, no pet.) (considering punishment
range in determining gang evidence was not unfairly prejudicial).
We resolve appellant’s fifth issue against him.
D. Sixth Issue: Were the Allen charges unduly coercive?
Appellant did not preserve this issue for our review. See TEX. R. APP. P. 33.1.
Additionally, even had appellant not agreed to the Allen charges, submitting
those charges was not reversible error because the charges were not unduly coercive.
At two different points during deliberation, the jury informed the court that they
–18– were deadlocked. Each time, the court read the jury an Allen charge that was
essentially the same4:
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. The 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 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 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 conscience, but continue deliberating.
In each instance, appellant’s counsel affirmatively stated that he had “no objection”
to the charge.
Appellant now complains that the charges were coercive. But because there
was no trial objection to the charges, appellant’s challenge was not preserved for
appellate review. See Thomas v. State, 312 S.W.3d 732, 740 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d). TEX. R. APP. P. 33.1(a); Santana v. State, No. 11-15-
00010-CR, 2017 WL 469380, at *2 (Tex. App.—Eastland Feb. 2, 2017, pet. ref’d)
(not designated for publication).
4 The second charge differed somewhat by telling the jury to continue deliberations in an effort to reach a unanimous verdict or a verdict that was acceptable to all members of the jury, while the first charge only referred to reaching a verdict that was acceptable to all members of the jury. –19– Moreover, appellant would still not prevail even had he objected to submitting
the Allen charges to the jury. Specifically, an Allen charge “is designed to blast
loose a deadlocked jury.” Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962).
As the Texas Court of Criminal Appeals has explained, such a 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. Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006); see
Allen, 164 U.S. at 501.
An Allen charge will constitute reversible error only if, on its face, it is so
improper as to render jury misconduct likely. Howard v. State, 941 S.W.2d 102,
123 (Tex. Crim. App. 1996). A charge is “unduly coercive and therefore improper
only if it pressures jurors into reaching a particular verdict or improperly conveys
the court’s opinion of the case.” West v. State, 121 S.W.3d 95, 107–08 (Tex. App.—
Fort Worth 2003, pet. ref’d); see also Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.
Crim. App. 1973).
The charges here are not coercive because they do not pressure the jury to
reach a particular result or convey the court’s opinion about the case. Accordingly,
the trial court did not err. We resolve appellant’s sixth issue against him.
E. Seventh Issue: Should the judgment be reformed?
Appellant’s seventh issue requests that we modify the judgment to reflect the
trial court’s deadly weapon finding. We are authorized to reform a judgment to
–20– make the record speak the truth when we have the necessary information to do so.
Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). Here, the record reflects
that the court made an affirmative deadly weapon finding. We therefore sustain
appellant’s seventh issue and modify the judgment accordingly.
III. CONCLUSION
We modify the special findings section of the judgment to reflect that
appellant “used or exhibited a deadly weapon, namely a firearm, during the
commission of this felony offense.” As modified, the judgment is affirmed.
/Bill Whitehill/ BILL WHITEHILL JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 190703F.U05
–21– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MICHAEL MARTESE JOHNSON, On Appeal from the 291st Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-1875043-U. No. 05-19-00703-CR V. Opinion delivered by Justice Whitehill. Justices Pedersen, III and THE STATE OF TEXAS, Appellee Reichek participating.
Based on the Court’s opinion of this date, the special findings section of the trial court’s judgment is MODIFIED to reflect that appellant used or exhibited a deadly weapon, namely a firearm, during the commission of this felony offense. As modified, the judgment is AFFIRMED.
Judgment entered December 2, 2020
–22–