stating that it was unnecessary for court to address whether court's instructions placed undue duress and pressure on jury, but calling attention to coercive jury instruction given in Duke
How later courts described this case
- stating that it was unnecessary for court to address whether court's instructions placed undue duress and pressure on jury, but calling attention to coercive jury instruction given in Duke
- the purpose of Article 36.27 is to afford a defendant and his attorney an opportunity to examine the questions and to urge objections, if any, to the additional instructions or answers to be given to the jury
- jury note stating "We are hung"
Written by the judges who cited it.
The opinion
DOUGLAS, Judge,
dissenting.
The majority erroneously holds that Article 36.27, V.A.C.C.P., mandates that all communications, of any kind whatsoever, between the court and jury, must be in writing. In fact, this Court has repeatedly held to the contrary and has limited application of Article 36.27 to those communications which constitute additional instructions to the jury. Requests that a jury make additional efforts to reach a verdict have never been considered as jury charges within the meaning of Article 36.27.
In Arrevalo v. State, 489 S.W.2d 569 (Tex.Cr.App.1973), the trial court orally requested a deadlocked jury to return to the jury room and continue its deliberations. We held that communications between the trial court and jury which are not in compliance with the statute, but which do not amount to additional instructions by the court, do not constitute reversible error.
The same rule has been applied in Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Romero v. State, 458 S.W.2d 464 (Tex.Cr. App.1970); Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967). In each case, the jury was either referred to the court’s original charge and directed to continue deliberation or admonished not to discuss the case or listen to media accounts of the trial. Inasmuch as none of these communications constituted new or additional instructions to the jury, it was uniformly held that such oral directions were not reversible error.
In the present case, no additional instructions were orally communicated by the trial court to the jury. The jury was directed to resume deliberations and reach a verdict if possible. No new instructions were given as to the law applicable to the offense or the application of such law to the facts. In directing that the jury attempt to reach a unanimous verdict, the trial court did nothing more than restate instructions which it had already reduced to writing. 1 Therefore, no reversible error is presented.
In his fourth ground of error, appellant complains of the trial court’s “blockbuster” charge in that it placed undue duress and pressure upon the jurors to reach a unanimous verdict. The majority does not reach the issue of harm, holding instead that Article 36.27 is mandatory and not subject to the harmless error rule. In light of our decision in Arrevalo , Article 36.27, supra, is not mandatory with regard to oral state *456 ments which do not amount to additional instructions, and the harmless error rule applies. In this case, the oral instructions of the trial court were not coercive and no harm is shown.
The record shows that on June 26,1975 at 1:38 p.m. appellant’s case was submitted to the jury on the issue of punishment. At 2:52 p.m. the jury sent a note to the court saying, “We are hung.” At 3:09 p.m. appellant moved for mistrial and at 3:15 p.m. appellant objected to the giving of any oral instructions. Immediately thereafter the trial court had the following oral exchange with the foreman of the jury:
“THE COURT: I have received a note from the foreman. Now, Mr. Foreman, there are some questions that I want to ask you and I want you to listen closely to the questions and answer the questions I ask and only those questions. I do not want you in your answers to say a designated number favors this, a designated number favors that. I’m not interested in that. I simply want to know what the break down is at this time. By break down, I mean whether there are a certain number, what the numbers are insofar as the difference is concerned. Now, do you understand exactly what I mean?
“THE JURY FOREMAN: I’m not right sure. You ask the question and then if I don’t understand it then I will—
“THE COURT: Well, let’s put it this way: I don’t want you to say there are so many jurors who favor doing this, there are so many who favor doing that. You just tell me what the break down is numberwise.
“THE JURY FOREMAN: Numberwise like 4 to 3 or 2 to 1?
“THE COURT: Yes, sir.
“THE JURY FOREMAN: All right. I understand.
“THE COURT: All right. What is the break down numberwise, Mr. Foreman?
“THE JURY FOREMAN: 10 to 2.
“THE COURT: All right. Then, it’s the opinion of the Court that with that break down, that we have not used sufficient time in deliberation to return a verdict. Now, this case has to be settled by some twelve jurors. I regard all of you as honest and intelligent jurors. I do not know of any twelve jurors who can do better than you can. I think you can settle it and you ought to settle it and I want it to be settled. I have no desire to attempt to coerce you into a verdict. This is a matter for each of you to determine for himself or herself, but it is to the interest of society that you should consider your differences and, if you can, agree upon a verdict. You will please return to the jury room and if you can reconcile your differences and agree upon a verdict I hope you will please do so. You will now retire to the jury room.”
The oral instructions of the trial court cannot be viewed in a vacuum. The record reflects that the jury had only deliberated for one hour and fourteen minutes, and had ten members in agreement, when it announced to the court that it was deadlocked. In this context, it was entirely reasonable for the trial court to believe that the jury was capable of reaching a unanimous verdict, and it was proper for the court to urge the jury to do so. The trial court’s request that the jury resume its deliberations and, if possible, reach a verdict was neither improper nor coercive.
The majority opinion infers that the statements made by the trial court were erroneous in light of United States v. Duke, 492 F.2d 693 (5th Cir. 1974). Holdings of the Fifth Circuit, however, are not binding upon this Court. While we have never reviewed language identical to that used by the trial court in the present case, we have examined similar charges and found them not to be coercive of a verdict. Stanton v. State, 535 S.W.2d 182 (Tex.Cr.App.1976); Arrevalo v. State, supra; Potter v. State, 481 S.W.2d 101 (Tex.Cr.App.1972); Gamblin v. State, 476 S.W.2d 18 (Tex.Cr.App.1972). The oral directions which were given in the present case are distinguishable from the kind of charge which was found to be erroneous in Smith v. State, 155 Tex.Cr.R. 190 , *457 233 S.W.2d 138 (1950), wherein the court told a deadlocked jury: “I am not ready to discharge you at this time. The facts are too clear in this case for there to be any hung jury in this case. It costs too much to try these cases over.” 233 S.W.2d 138 at 139 .
The statements of the trial court in this case were in no respect coercive, but only reflective of the court’s reasonable belief that the jury could agree with further deliberation. No harm having been shown to appellant, the conviction should be affirmed.
. The charge, in pertinent part, states:
“After argument of counsel, you will retire and select one of your members as your foreman. It is the duty of your foreman to preside at your deliberations and to vote with you in arriving at a verdict. Your verdict must be unanimous, and after you have arrived at your verdict, you may use one of the forms attached hereto by having your foreman sign the particular form that conforms to your verdict.”