Petition for Writ of Certiorari — Boyd v. Scott
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GFHCE-OF-THE-CLERK
In The
Supreme Court of the United States
October Term, 1994
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MICHAEL J. BOYD,
u.S. ;
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Petitioner,
WAYNE SCOTT, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, and
DAN MORALES, ATTORNEY GENERAL,
Respondents.
.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
’
PETITION FOR WRIT OF CERTIORARI
¢
LAWRENCE A. GaybDos
Counsel of Record
BetH L. FANCSALI
ANDREW L. WALLACE
HAYNES AND Boone, L.L.P.
1300 Burnett Plaza
801 Cherry Street
Fort Worth, Texas 76102-4706
Telephone: (817) 347-6600
Telecopier: (817) 347-6650
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Whether, under the totality of the circumstances, the
Allen charge, which effectively told the jurors that they
had to reach a decision and directed the minority jurors
to distrust their own judgment and re-examine their
views in light of those of the majority, denied Petitioner
Michael J. Boyd (“Boyd”) his constitutional right to a
fundamentally fair and impartial trial under the Sixth
Amendment, and as such, violated Boyd's constitutional
right to Due Process under the Fifth and Fourteenth
Amendments to the United States Constitution, entitling
Boyd to federal habeas corpus relief.
li
TABLE OF CONTENTS
Page
QUESTION PRESENTED. ........cccccccccccccesess i
TABLE OF CONTEIGIS. «oo cncccccccctuscivessatens ii
TABLE OF AUTHIORITIES . ... cc ccccecsvccssesenecs iii
CITATION OF OPINIONS BELOW ................. 1
PUTA NC TION... ons ccevvcenyscdessumesnecauupaaens 2
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED 200s csccccssscdesecsucusequess 2
STATEMENT OF THE CASE. .........ccccceccecees 3
1. Pancodberal Piletaey.. ..< -scccccessivsvenvscsens +
2. The Allow Chatae ooo iccccccccecussscccessuees 6
REASONS FOR GRANTING CERTIORARI ......... 8
I. THE FIFTH CIRCUIT’S DECISION DIRECTLY
CONFLICTS WITH THE DECISIONS OF THE
NINTH AND SIXTH CIRCUITS REGARDING
THE CONSTITUTIONALITY OF COERCIVE
ALLEN UNSTRAA. TRIG 6 cc ccccn cn cimnisunneeen 9
Il. THE ALLEN CHARGE IN BOYD’S TRIAL WENT
BEYOND THE CONSTITUTIONALLY PERMIS-
SIBLE LIMITS ESTABLISHED IN LOWENFIELD
AND) GRAN «oo 6 6c ccececddatisieaeeeee 14
CORCCLETGIIN o.oo cnciccunsncé nateeeeeneeeeneneeen 18
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TABLE OF AUTHORITIES
Page
CASES
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154
SECA en ee ee Pe ree 8
Boyd v. Scott, 45 F.3d 876 (5th Cir. 1994) ............. 1
Bryan v. Wainwright, 511 F.2d 644 (5th Cir. 1975), cert.
denied, 423 U.S. 837, 96 S.Ct. 63 (1975)..... 6, 14, 16, 17
Edwards v. State, 558 S.W.2d 452 (Tex. Crim. App.
ee eae ahead ba ve wh tnsneeses 10
Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730
ee Cee hh Seed sss bets abesese 16
Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059
SESE ae eo ee 10
Jimenez v. Myers, 12 F.3d 1474 (9th Cir.), cert.
denied, US. __, 115 S.Ct. 6 (1993), as
amended by 40 F.3d 976 (9th Cir. 1994) ....... 3, 9, 12
Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973), cert.
denied, 411 U.S. 986, 93 S.Ct. 2275 (1975). .3, 9, 12, 13
Landano v. Rafferty, 856 F.2d 569 (3d Cir. 1988)... 4, 10, 13
Lowenfield v. Phelps, 485 U.S. 1126, 108 S.Ct. 546
0 NE ee ee 5, 14, 15, 16, 17
United States v. Amaya, 509 F.2d 8 (5th Cir. 1975) .... 10
United States v. Bailey, 468 F.2d 652 (5th Cir. 1972) .... 10
United States v. Boone, 759 F.2d 345 (4th Cir. 1985),
cert. denied, 474 U.S. 861, 106 S.Ct. 176 (1985)..... 11
United States v. Brokemond, 959 F.2d 206 (11th Cir.
eee eee
iv
TABLE OF AUTHORITIES —- Continued
United States v. Cheramie, 520 F.2d 325 (5th Cir.
|: g. : Saree mineer aie cre RT are ariret SVU ernie rye sree 8
United States v. Cortez, 935 F.2d 135 (8th Cir. 1991).... 11
United States v. Duke, 492 F.2d 693 (5th Cir. 1975)...10, 14
United States v. Graham, 758 F.2d 879 (3rd Cir.
POE sca cdhedanenies Oo chin sew kate ia Boeke eenas 10
United States v. Harris, 391 F.2d 348 (6th Cir. 1968),
cert. denied, 393 U.S. 874, 89 S.Ct. 169 (1968)
védiew wend waa ae ee a 2, 1%, 72. 3% 34
United States v. Nichols, 820 F.2d 508 (1st Cir. 1987) .... 11
United States v. Rey, 811 F.2d 1453 (11th Cir. 1987) ..11, 13
United States v. Robinson, 953 F.2d 433 (8th Cir.
| er eer a sey mn Ree emis area genes 10, 13
United States v. Ruggiero, 928 F.2d 1289 (2nd Cir.
1991), cert. denied, 502 U.S. 938, 112 S.Ct. 372
7 nD svabasi ashi besiende natu tac wie 11
ne oe ca ee et ee 3, 9, 12
DOS isk ovo bed 0 a ea 15
United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) .... 11
United States v. Smith, 857 F.2d 682 (10th Cir. 1988) .... 11
United States v. Thomas, 449 F.2d 1177 (D.C. Cir.
BO a kk ins cede puke dtedls ceeds 10
nee |S
TABLE OF AUTHORITIES - Continued
Page
THE CONSTITUTION AND FEDERAL STATUTES
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Law JOURNAL
Twenty-Second Annual Review of Criminal Pro-
cedure: United States Supreme Court and
Courts of Appeals 1991-1992, 81 Geo.L.J. 1267
(April 1993/May 1993) ........cecccseercesccceess 10
CITATION OF OPINIONS BELOW
The published opinion of the Court of Appeals for
the Fifth Circuit is reported at Boyd v. Scott, 45 F.3d 876
(5th Cir. 1994) and is included in the Appendix to this
Petition, beginning at page A-1. The unpublished Mem-
orandum and Recommendation of United States Magis-
trate Judge John W. Primomo, filed November 13, 1992, is
included in the Appendix, beginning at page B-1. Magis-
trate Judge Primomo’s second Memorandum and Recom-
mendation, filed March 16, 1993, is included in the
Appendix, beginning at page C-1. The Order of United
States District Judge H.F. Garcia, filed July 27, 1993,
adopting Magistrate Judge Primomo’s second Memoran-
dum and Recommendation, is included in the Appendix,
beginning at page D-1. The unpublished Opinion of Asso-
ciate Justice Shirley W. Butts of the Court of Appeals for
the Fourth Supreme Judicial District of Texas in Appeal
No. 04-87-00139 from the 226th District Court of Bexar
County, filed February 17, 1988, is included in the Appen-
dix, beginning at page E-1. The unpublished Order deny-
ing habeas corpus relief of Judge Ted Butler of the 226th
District Court of Bexar County, Texas, filed June 20, 1990,
and received on July 9, 1990 in the Texas Court of Crimi-
nal Appeals, is included in the Appendix, beginning at
page F-1.
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on December 30, 1994. See Appendix
A-l.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
The Court of Appeals for the Fifth Circuit had juris-
diction over this proceeding for habeas corpus relief
under 28 U.S.C. § 1291.
+
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the
United States provides, in pertinent part:
No person shall be . . . deprived of life, liberty,
or property, without due process of law .
The Sixth Amendment to the Constitution of the
United States provides, in pertinent part:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the State and district
wherein the crime shall have been commit-
tem...
The Fourteenth Amendment to the Constitution of
the United States provides, in pertinent part:
_..[N]or shall any State deprive any person of
life, liberty, or property, without due process of
law...
28 U.S.C. § 1254 provides, in pertinent part:
Cases in the courts of appeals may be reviewed
by the Supreme Court by the following
methods:
(1) By writ of certiorari granted upon the
petition of any party to any civil or
criminal case, before or after rendition
of judgment or decree... .
ee
STATEMENT OF THE CASE
The Fifth Circuit Court of Appeals’ decision in this
case involves an important question of criminal jurispru-
dence over which there is a clear split in published deci-
sions among the federal circuit courts of appeals.
Specifically, the Fifth Circuit held that the Allen charge
given in Boyd's trial which, standing alone, was coercive
in that it told the jury that it had to reach a verdict and
directed the minority jurors to distrust their own judg-
ment and re-examine their views in light of those of the
majority, nonetheless does not rise to a level of a constitu-
tional violation. In contrast, the Ninth Circuit, in Jimenez
v. Myers, 12 F.3d 1474 (9th Cir.), cert. denied, __ ) Sa
115 S.Ct. 60 (1993), as amended by 40 F.3d 976 (9th Cir.
1994), held that an Allen charge which encourages the
jurors to work toward unanimity and directs the minority
jurors to distrust their own judgment and re-examine
their views in light of those of the majority is de facto
unconstitutionally coercive. Likewise, the Sixth Circuit, in
the cases of Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973),
cert. denied, 411 U.S. 986, 93 S.Ct. 2275 (1975), United States
v. Scott, 547 F.2d 334 (6th Cir. 1977), and United States v.
Harris, 391 F.2d 348 (6th Cir. 1968), cert. denied, 393 U.S.
874, 89 S.Ct. 169 (1968), held that an Allen charge instruct-
ing a deadlocked jury that it had to decide the case is
unconstitutionally coercive. The Third Circuit, in Landano
v. Rafferty, 856 F.2d 569 (3rd Cir. 1988), also held that a
supplemental charge did not violate the petitioner’s con-
stitutional rights because it “did not suggest that the case
‘had to be decided’ by the particular jury hearing the
charge.”
The conflict among circuits presents the narrow ques-
tion of the constitutional limits of verdict-urging by trial
court judges. Specifically, the circuit courts of appeals
disagree as to whether Allen charges, which effectively
tell jurors that they must reach a decision and single out
the minority jurors to change their minds, are unconstitu-
tionally coercive. The question in this case is whether,
under the totality of the circumstances, the Allen charge,
which instructed the jury that it must reach a verdict and
then twice singled out the minority jurors, instructing
them to distrust their own judgment and re-examine their
views in light of the majority jurors’ views, and which
was given by the trial court immediately after the jury
announced that it was deadlocked, denied Boyd his con-
stitutional rights to a fundamentally fair and impartial
trial and Due Process, entitling Boyd to federal habeas
corpus relief.
1. Procedural History.
After exhausting state court remedies, Boyd filed a
pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging that the Allen charge given to the
jury in his state court trial violated his constitutional
rights. Magistrate Judge John W. Primomo reviewed the
record and determined that Boyd was entitled to habeas
corpus relief and vacated his conviction. The Magistrate
noted that the Allen charge in this case not only deviates
from the language used in approved Allen charges, but
uses the same language the Fifth Circuit specifically has
rejected. The Magistrate found that the Allen charge in
this case violated Boyd’s constitutional rights. See Appen-
dix B-10.
The Director of the Texas Department of Criminal
Justice, Institutional Division, and Attorney General (col-
lectively referred to as the “Director”), filed objections to
the Magistrate’s Recommendation and Report, and for
the first time, asserted that Boyd’s claim was pro-
cedurally barred. The Magistrate issued a second Recom-
mendation and Report holding that Boyd’s claim is not
procedurally barred. Accordingly, the Magistrate again
held that Boyd is entitled to habeas corpus relief. See
Appendix C-7 through 8.
The Director filed objections to the second Recom-
mendation and Repoit of the Magistrate. District Court
Judge H.F. Garcia conducted a de novo review and also
determined that Boyd is entitled to habeas corpus relief.
The District Court adopted the recommendations and
reports of the Magistrate and entered judgment vacating
the judgment and sentence against Boyd. See Appendix
D-1.
The Director then filed an appeal to the Fifth Circuit
Court of Appeals. On appeal, the Fifth Circuit conducted
a de novo review and, relying on the cases of Lowenfield v.
Phelps, 485 U.S. 1126, 108 S.Ct. 546 (1988) and Bryan v.
Wainwright, 511 F.2d 644 (5th Cir. 1975), cert. denied, 423
US. 837, 96 S.Ct. 63 (1975), reversed the holding of
unconstitutionality on the Allen charge and remanded the
case to the District Court. See Appendix A-19. The three-
judge panel voted two to one. Circuit Judge Reynaldo G.
Garza dissented, stating that he would hold that Allen
charges such as the one given in Boyd’s trial violate a
defendant’s constitutional right to a fair trial.
2. The Allen Charge.
In his state court trial, Boyd pled not guilty to the
charge of aggravated sexual assault. The case was tried to
a jury, which heard evidence for three days. At approx-
imately 9:55 a.m. on the fourth day of trial, the jury began
deliberations on guilt/innocence. At approximately 4:00
p.m., the jury sent a note to the judge that read: “Judge
Butler, it is with ‘tcep regret that we, the jury, cannot
reach an unanimous decision in this case. Thank you.
Elena Oviedo, foreman.”
The trial court then immediately delivered an Allen
charge and ordered the jury to continue deliberations.
The relevant portions! of the Allen charge given to the
jury are as follows:
1 The entirety of the Allen charge given by the trial court is
set forth in the opinion of the Fifth Circuit in Appendix A and in
the November 13, 1992 Memorandum and Recommendation of
the Magistrate Judge in Appendix B.
You should endeavor to reach an agreement if at
all possible. Some jury, sometime, will have to
decide this question.
The issue has been tried out very ably by both
sides who have presented this evidence to you,
and a decision has to be reached by a jury. You are
that jury, and it seems to me that you ought to make
every effort to arrive at a unanimous verdict and to
reach a conclusion.
+ + *
Each juror should listen with deference to the argu-
ments of the other jurors, and with a distrust of his
own judgment if he finds the large majority of the
jury takes a different view of the case from what he
himself takes.
* * *
You should listen to each other’s argument with
a disposition to be convinced. If much the larger
number favor one side or the other, a dissenting juror
should consider whether, in the light of the opinions
that are expressed by the other jurors in the jury
room, he is not in error as to his views.
(emphasis added.)
Before the Allen charge was read to the jury, Boyd
objected to it on the ground that it was coercive and
forced the minority jurors to change their views. See
Appendix E-8 through 9. Approximately one hour after
receiving the Allen charge, the jury returned with a unan-
imous verdict of guilty.
a ~
REASONS FOR GRANTING CERTIORARI
This case involves issues of substantial importance to
criminal jurisprudence over which the Court of Appeals
for the Fifth Circuit is in direct conflict with the Courts of
Appeals for the Ninth and Sixth Circuits, and with
numerous other circuits generally. Allen charges were
approved by this Court in Allen v. United States, 164 U.S.
492, 17 S.Ct. 154 (1896). In Allen, this Court decided that
an admonishment to jurors not to surrender their individ-
ual views in order to reach a verdict is a critical portion of
an Allen charge.? See Id., at 495 S.Ct. at 157. In this case,
the Fifth Circuit determined that an Allen charge which,
standing alone, was coercive in that it told the jury that it
had to reach a verdict and directed the minority jurors to
distrust their own judgment and re-examine their views
in light of those of the majority, nonetheless does not rise
to a level of a constitutional violation. If the decision of
the Fifth Circuit is allowed to stand, there will be no clear
guidelines regarding the constitutional limits of Allen
charges for trial and appellate courts to follow instructing
deadlocked juries. The Fifth Circuit's decision diminishes
the role of a jury and, as a consequence, undermines the
proper function of the jury system.
Allen charges given to deadlocked juries which
encourage the jurors to work toward unanimity and
direct the minority to distrust their own judgment and re-
examine their views in light of those of the majority cross
2 Allen charges have been described, by proponents and
detractors alike, as a “dynamite charge” because of their poten-
tial to blast a verdict out of a deadlocked jury. See United States v.
Cheramie, 520 F.2d 325, 329 n.3 (Sth Cir. 1975).
|
the line between neutral instructions and unconstitu-
tionally coercive instructions. The admonishment by the
trial court judge to the jury, and to the minority jurors in
particular, that they must reach a verdict and that the
minority jurors must distrust their own judgment because
they are in the minority, sent a clear message to the jury
to unanimously find Boyd guilty. This coercive instruc-
tion violates Boyd’s constitutional rights and entitles him
to federal habeas corpus relief. This Court should reach
this result because it is proper, just and because it is
required by prior precedent granting habeas corpus relief
based upon Allen charges that are substantively identical
to the charge given in Boyd’s trial.
I. THE FIFTH CIRCUIT’S DECISION DIRECTLY
CONFLICTS WITH THE DECISIONS OF THE
NINTH AND SIXTH CIRCUITS REGARDING THE
CONSTITUTIONALITY OF COERCIVE ALLEN
INSTRUCTIONS.
The constitutional inquiry in cases involving Allen or
supplemental charges given to a deadlocked jury is
whether, under the totality of the circumstances, the
charge is coercive. See, e.g., Williams v. Parke, 741 F.2d 847,
850 (6th Cir. 1984); Jones, 472 F.2d at 1186 (6th Cir. 1973).
Federal courts, both in direct appeals and habeas corpus
cases, hold that an Allen charge which instructs a dead-
locked jury that it must reach a verdict improperly
coerces the jury and violates the defendant’s constitu-
tional rights to due process and a fair and impartial jury
trial under the Fifth, Sixth and Fourteenth Amendments
to the United States Constitution. See, e.g., Jimenez v.
Myers, 40 F.3d at 981; Scott, 547 F.2d at 335; Jones, 472 F.2d
10
at 1186; Harris, 391 F.2d at 355. Cf. Landano, 856 F.2d at
576. In addition, other federal courts, while not reaching
the constitutional issue, have repeatedly held that Allen
charges which instruct the jury that it must reach a ver-
dict are coercive and erroneous. See, e.g., Jenkins v. United
States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060 (1965); United
States v. Robinson, 953 F.2d 433, 437 (8th Cir. 1992); United
States v. Amaya, 509 F.2d 8, 10-13 (5th Cir. 1975); United
States v. Duke, 492 F.2d 693, 697 (5th Cir. 1975). The Texas
Court of Criminal Appeals, relying on the Fifth Circuit
opinion in United States v. Duke, also expressly con-
demned Allen charges which instruct a deadlocked jury
that it must reach a unanimous verdict. See Edwards v.
State, 558 S.W.2d 452, 454 n.1 (Tex. Crim. App. 1977).
Every circuit court of appeals except the Fifth Circuit
has either forbidden the use of an Allen instruction or
required trial judges to hew closely to the language used
in the original Allen charge. See Scott, 547 F.2d at 336
(quoting United States v. Bailey, 468 F.2d 652, 667-668 (5th
Cir. 1972)). The modern trend among the circuits is either
to prohibit or severely restrict the use of Allen charges.
See, e.g., Twenty-Second Annual Review of Criminal Pro-
cedure: United States Supreme Court and Courts of Appeals
1991-1992, 81 Geo.L.J. 1267, 1332 (April 1993/May 1993).
The Third and D.C. Circuits prohibit the use of the Allen
charge. See United States v. Graham, 758 F.2d 879, 883 (3rd
Cir. 1985) and United States v. Thomas, 449 F.2d 1177, 1184
n.45 (D.C. Cir. 1971) (rejects the use of the Allen charge,
but permits use of a modified Allen charge called a
“Thomas instruction” when the jury has reached an
impasse and, in the judge’s view, has had enough time to
deliberate). The First, Second and Fourth Circuits use
< Sots hanson
11
Allen charges modified to be fair, neutral and balanced.
See United States v. Nichols, 820 F.2d 508 (1st Cir. 1987);
United States v. Ruggiero, 928 F.2d 1289 (2nd Cir. 1991),
cert. denied, 502 U.S. 938, 112 S.Ct. 372 (1991); United States
v. Boone, 759 F.2d 345 (4th Cir. 1985), cert. denied, 474 U.S.
861, 106 S.Ct. 176 (1985). The Seventh Circuit decided that
if a supplemental instruction to a deadlocked jury is
necessary, and if the supplemental instruction was given
before the jury’s retirement, the court may repeat the
instruction. See United States v. Silvern, 484 F.2d 879, 883
(7th Cir. 1973). The Eighth and Tenth Circuits use a mod-
ified Allen instruction, which calls upon every juror, not
just the minority, to reflect upon the correctness of the
preliminary appraisal of evidence. See United States v.
Cortez, 935 F.2d 135, 140-142 (8th Cir. 1991); United States
v. Smith, 857 F.2d 682, 684 n.4 (10th Cir. 1988). Finally, the
Eleventh Circuit accepts the use of the Allen charge, but
some disagreement exists within the circuit as to its pro-
priety. Compare United States v. Brokemond, 959 F.2d 206,
209-10 (11th Cir. 1992) with United States v. Rey, 811 F.2d
1453, 1460 (11th Cir. 1987).
There are no other published cases where federal
courts have upheld an Allen charge such as the one given
in Boyd’s trial. In fact, the jury instructions approved by
this Court in the Allen case establish the ultimate permis-
sible limits for a verdict-urging instruction, which were
exceeded in this case. See also Harris, 391 F.2d 354-55 (“for
a judge to tell a jury that a case must be decided is not
only coercive in nature, but is misleading in fact”). The
Allen charge upheld by the Fifth Circuit in this case
undermines the proper function of the jury in favor of
indiscriminate judicial coercion. The Fifth Circuit opinion
12
in this case ignores established precedent within its juris-
diction as well as established precedent in other circuits
holding that substantively identical Allen charges are
unconstitutionally coercive.
In its decision in this case, the Fifth Circuit admitted
that the Allen charge, standing alone, was coercive in that
it essentially told the jury that it had to reach a verdict,
yet held that the Allen charge did not rise to the level of a
constitutional violation. See Appendix A-16. The Fifth
Circuit determined that, under the full context of the
charge and the case, the charge did more to en-ourage the
jurors to reach a verdict than it did coerce them. See Appen-
dix A-17. This is a distinction without a difference. Stated
differently, this is exactly the point. The Fifth Circuit
holding in this case is in direct conflict with the recent
Ninth Circuit opinion in Jimenez v. Myers and the Sixth
Circuit decisions in Jones v. Norvell, United States v. Scott
and United States v. Harris.
In Jimenez, the Allen charge sent a clear message that
the jurors in the majority were to hold their position and
persuade the hold-out juror to join in a unanimous ver-
dict, and that the hold-out juror was to cooperate in the
movement towards unanimity. See Jimenez, 40 F.3d at 981.
In its opinion, the Ninth Circuit established the de facto
Allen charge doctrine which holds that, under the totality
of the circumstances, a supplemental or Allen charge,
which encourages the jurors to work toward unanimity
and the minority jurors to re-examine their view in light
of those of the majority, is de facto unconstitutionally
coercive. Thus, the Ninth Circuit granted habeas corpus
relief. See Id., at 980. Similarly, the Sixth Circuit in Jones
granted habeas corpus relief and held that an Allen
eo 886|6hC lll ees
13
charge stating that “it is your duty to reach a verdict if
you can possibly do so . . . you 12 people are the only
ones that can do it . . . [you twelve people are the only
ones” violated the petitioner’s constitutional rights. See
Jones, 472 F.2d at 1185. The Sixth Circuit also held on
direct appeal that an instruction that a case “must be
decided” violated the defendant’s constitutional rights.
See Harris, 391 F.2d at 355. The Third Circuit’s opinion in
Landano, 856 F.2d at 576, which implies that an instruction
suggesting a case had to be decided by that particular
jury would violate a defendant’s constitutional rights is
also in conflict with the Fifth Circuit’s decision in this
case.
Consistent with the clear implication that coercive
verdict-urging raises the specter of constitutionality, cir-
cuit courts in numerous cases have recognized that ame-
liorative measures taken to reduce the impact of Allen
charges cannot completely cure constitutional defects in
interfering with jurors when they are performing their
most important role: determining guilt or innocence. See
e.g., Rey, 881 F.2d at 1453; Robinson, 953 F.2d at 437 (“the
mere fact that the charge contained some proper lan-
guage does not cure its defects”). Ameliorative language
is necessary, but in some instances, cannot correct the
unconstitutional coerciveness of Allen charges. See e.g.,
Amaya, 509 F.2d at 13 (“we are. . . unwilling to risk even a
small chance of increased - and therefore immediately
illegitirnate - jury coercion over that which inheres in
the borderline Allen charge merely for the sake of instruc-
tional novelty. . . . [T]o hold otherwise would turn this
court into a psychologists’ symposium with resultant
ce tatimtanaciasiatmmimalatliataia iia ial
14
great expenditures of energy and yet necessarily capri-
cious solutions”); Duke, 492 F.2d at 697. In fact, the Sixth
Circuit held that much more extensive ameliorative lan-
guage than was present in the Allen charge given in
Boyd’s trial could not cure the constitutional defect of an
Allen charge that instructed the jury that it must reach a
verdict. Harris, 391 F.2d at 352-53. Thus, the Fifth Circuit’s
opinion in this case is in direct conflict with opinions of
other circuits.
Il. THE ALLEN CHARGE IN BOYD’S TRIAL WENT
BEYOND THE CONSTITUTIONALLY PERMIS-
SIBLE LIMITS ESTABLISHED IN LOWENFIELD
AND BRYAN.
The Fifth Circuit held that the holdings of Lowenfield
v. Phelps, 485 U.S. 1126, 108 S.Ct. 546 (1988) and Bryan v.
Wainwright, 511 F.2d 644 (5th Cir. 1975), cert. denied, 423
U.S. 837, 96 S.Ct. 63 (1975) require reversal of the District
Court’s grant of Boyd’s petition for habeas corpus relief.
See Appendix A-16 through 18. According to the Fifth
Circuit, the facts of Lowenfield and Bryan suggest that
habeas corpus relief requires more egregious circum-
stances than those present in this case. See Appendix
A-18. The opposite, however, is true. The Fifth Circuit's
opinion and reliance upon these inapposite authorities
conspicuously overlooks established precedent within its
jurisdiction and establishes a clear conflict with other
circuits that hold substantively identical charges uncon-
stitutionally coercive.
The Fifth Circuit’s reliance upon Lowenfield is mis-
guided. In Lowenfield, the state trial court polled the
eR eR eodl L ow ,
15
deadlocked jury as to whether further deliberations
would be helpful in the sentencing phase of a capital
case. Eleven jurors answered affirmatively and one juror
answered negatively. The trial court then gave an Allen
charge to the jury. The Allen charge did not tell the jury
that it had to reach a verdict. Instead, the trial court
explicitly stated in its Allen charge that, if the jury was
unable to reach a sentence, the court would impose a life
sentence, without parole. This Court held that the combi-
nation of jury polling and the Allen charge was not
unconstitutionally coercive and that the petitioner was
not entitled to habeas corpus relief based upon these
facts. See Lowenfield, 484 U.S. at 240-42, 108 S.Ct. at 552.
This Court was careful to explain that the polling of the
jury did not inquire as to the jurors’ positions on the
merits. Thus, there would be no reason why the jurors in
the minority would conclude that further deliberations
would not be helpful, and no reason to conclude that the
jury poll would impermissibly coerce the minority jurors.
The facts of this case are just the opposite. The trial
judge in this case told the jury in Boyd's trial that they
must reach a verdict. In addition, the fact that the court
delivered the Allen charge immediately and without the
jury requesting it heightens the coerciveness of the ver-
dict urging. See, e.g., United States v. Seawell, 550 F.2d
1159, 1163 (9th Cir. 1977) (Allen charge should not be
giver. during deliberations unless jury requests it). In
Lowenfield, by contrast, the jury itself had requested the
charge. Finally, unlike Lowenfield, the trial judge in Boyd's
case twice singled out the minority jurors and pressured
them into voting with the majority. Thus, Lowenfield does
not support the Fifth Circuit’s position.
Te ne |
16
The Fifth Circuit’s reliance upon Bryan is similarly
misguided. In Bryan, the trial judge sua sponte called the
jurors into the courtroom after about five and one-half
hours of deliberation and asked whether they were close
to a verdict. The jury responded that they were not close
to a verdict, but significantly, did not indicate that they
were deadlocked. See Bryan, 511 F.2d at 645. The trial
court then gave the jury an Allen charge and instructed
them to continue deliberations. The Allen charge did not
contain language similar to the charge given in Boyd’s
trial. The Fifth Circuit held that the Allen charge given in
Bryan did not render the trial so fundamentally unfair as
to entitle the petitioner to federal habeas corpus relief. See
Id. at 646. The Allen charge and the subsequent discussion
between the trial judge and jurors in Bryan, unlike this
case, did not state or suggest that the jury must return a
verdict. Moreover, the Allen charge in Bryan was given by
the trial court sua sponte and without any indication from
the jury that it was deadlocked or could not reach a
verdict. Id. at 645. Thus, Bryan does not support the Fifth
Circuit’s position that Boyd is not entitled to habeas
corpus relief.
The standard for granting federal habeas corpus
relief based upon a state court criminal conviction is
whether the petitioner has been deprived of his constitu-
tional rights. See, e.g., Henderson v. Kibbe, 431 U.S. 145,
154, 97 S.Ct. 1730, 1737 (1977). Neither Lowenfield nor
Bryan involved Allen charges which directed minority
jurors to work toward unanimity, distrust their own judg-
ment and ré-examine their views in light of those of the
17
majority. Neither Lowenfield nor Bryan involved Allen
charges with directly coercive language. The Fifth Circuit
admitted that the language of the Allen charge given in
Boyd's trial was itself coercive. The District Court in this
case properly analyzed all of the circumstances surround-
ing the charge and determined that the facts supported
the conclusion that the jury had, in fact, been coerced into
reaching a verdict, depriving Boyd of his constitutional
rights.
The Fifth Circuit strains its analysis in this case by
focusing on the length of deliberations surrounding the
Allen charge while disregarding the coercive language of
the charge itself. The Fifth Circuit asserts that the Allen
charge given in Boyd’s trial could not have been coercive
because the jury in Boyd’s trial engaged in lengthier
deliberations after hearing the Allen charge than did
juries in other cases for which habeas corpus relief was
denied. See Appendix A-17. However, the language used
in the Allen charge is the most important focus of judicial
scrutiny. The Fifth Circuit’s narrow focus upon the length
of deliberations in Boyd’s trial is erroneous. No court
should decide the constitutionality of an Allen charge
solely by focusing on the length of deliberations in the
case. The language is what ultimately made the Allen
charges in Lowenfield and Bryan permissibly coercive. The
language used in the Allen charge in Boyd’s case makes
the charge unconstitutionally coercive.
¢
18
CONCLUSION
For the foregoing reasons, Petitioner respectfully
requests that this Court issue a Writ of Certiorari to
review the judgment of the Court of Appeals for the Fifth
Circuit in this case.
Respectfully submitted,
LAWRENCE A. GAYDOS
Counsel of Record
BetH L. FANCSALI
ANDREW L. WALLACE
HaAyYNEs AND Boone, L.L.P.
1300 Burnett Plaza
801 Cherry Street
Fort Worth, Texas 76102-4706
Telephone: 817-347-6600
Telecopier: 817-347-6650
Attorneys for Petitioner
Submitted March 30, 1995
A-l
Michael J. BOYD, Petitioner-Appellee,
v.
Wayne SCOTT, Director, Texas Department of
Criminal Justice, and Dan Morales,
Attorney General, Respondents-Appellants.
No. 93-8563.
United States Court of Appeals,
Fifth Circuit.
Dec. 30, 1994.
Defendant who had previously been convicted of
first-degree felony aggravated sexual assault in state
court petitioned for federal habeas relief. The District
Court for the Western District of Texas, H.F. Garcia, J.,
granted defendant's petition, and appeal was taken. The
Court of Appeals held that Allen charge given to dead-
locked jury after it had deliberated for roughly four-and-
one-half hours was not unconstitutionally coercive, and
did not warrant grant of habeas relief.
Reversed and remanded.
Reynaldo G. Garza, Circuit Judge, filed dissenting
statement.
Amy Holley Hennessee, Asst. Atty. Gen., Dan
; Morales, Atty. Gen., Austin, TX, for appellants.
Beth L. Fancsali, Larry A. Gaydos (Court-appointed),
Haynes and Boone, Fort Worth, TX, for appellee.
Appeal from the United States District Court for the
Western District of Texas.
A-2
Before REYNALDO G. GARZA, WIENER and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
In this appeal by the Attorney General and the Direc-
tor of the Department of Criminal Justice of the State of
Texas, Respondents-Appellants Wayne Scott and Dan
Morales (hereafter “Scott”), challenge a district court
order granting Petitioner-Appellee Michael Boyd a writ
of habeas corpus. Scott asserts that the district court erred
in concluding that Boyd’s trial was fundamentally unfair
as a result of the state trial court’s giving an Allen charge
that unconstitutionally coerced the jury into reaching a
verdict. Scott also contends that, as the state court of
appeals based its rejection of Boyd’s claim regarding the
Allen charge on adequate and independent state pro-
cedural grounds, Boyd’s claim was procedurally barred
from federal court review. Thus, Scott asserts, the district
court erred procedurally in reviewing Boyd’s claim and
substantively in granting his petition for writ of habeas
corpus.
Our de novo review of this appeal leads us to con-
clude that, as the state appellate court failed to state
clearly and expressly that its rejection of Boyd’s claim
rested on adequate and independent state procedural
grounds, his claim was not procedurally barred from
federal review. As such, we are convinced that the district
court did not err in reviewing Boyd’s claim.
We are equally convinced, however, that the district
court did err when it determined that the Allen charge
given to the jury rose to the level of a constitutional
violation. Although we have reviewed similar Allen
A-3
charges on direct appeal, and have held that the charges
were coercive, we here conclude that, pursuant to the
level of review required for federal habeas cases, the
instant Allen charge did not render Boyd's trial funda-
mentally unfair. As such, Boyd’s constitutional due pro-
cess right was not violated. Based on these conclusions
we reverse the district court’s order granting Boyd's peti-
tion for writ of habeas corpus and remand for dismissal
in accordance with this opinion.
I
FACTS AND PROCEEDINGS
Michael Boyd was charged in state court with first-
degree felony aggravated sexual assault, to which he
pleaded not guilty. Boyd’s case was tried before a jury
which, after hearing evidence for three days, began its
deliberations on the fourth day of the trial. After approx-
imately five hours of deliberation, the jury notified the
judge that it could not reach a unanimous decision. In
response to that information the trial judge read the
following supplemental Allen charge’ to the jury.
In response to the information you have given
me, I give you the following instructions, and I
1 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.
528 (1896). The phrase “Allen charge” refers to supplemental
jury instructions that urge deadlocked juries to forego their
differences in order to reach a unanimous verdict. The original
Allen charge urged the minority «f the jury to consider the
views of the majority in an effort to determine whether the
minority views were reasonable under the circumstances. Id. at
501, 17 S.Ct. at 157.
A-4
want you to pay close attention to what I tell
you:
You should endeavor to reach an agreement if at
all possible. Some jury, sometime, will have to
decide this question.
The issue has been tried out very ably by both
sides, who have presented this evidence to you,
and a decision has to be reached by a jury. You
are that jury, and it seems to me that you ought
to make every effort to arrive at a unanimous
verdict and to reach a conclusion.
Of course, the verdict of the jury should repre-
sent the opinion of each individual juror. But
that does not mean that the opinion may not be
changed by a conference in the jury room.
The very object of the jury system is to secure
unanimity by comparison of views and by argu-
ment among the jurors themselves.
Each juror should listen with deference to the
arguments of the other jurors, and with a dis-
trust of his own judgment if he finds that a large
majority of the jury takes a different view of the
case from what he, himself takes.
No juror should go to the jury room with a blind
determination that the verdict should represent
his opinion of the case at that moment, or that
he should close his ears to the arguments of
other jurors who are equally honest and intel-
ligent as himself.
Accordingly, although your verdict must be the
verdict of each individual juror and not a mere
acquiescence in the conclusion of your fellow
jurors, the Court instructs you, however, that
you should examine what has been submitted to
tebe Rha Lytle He wg ew ah
A-5
you with an open mind, and with candor and
proper regard and deference to the opinion of
each other.
It is your duty to decide the case if you can
conscientiously do so.
You should listen to each other’s arguments
with a disposition to be convinced. If much the
larger number favor one side or the other, a
dissenting juror should consider whether, in the
light of the opinions that are expressed by the
other jurors in the jury room, he is not in error
as to his views.
I want you to go back to the jury room and
continue your deliberations. Discuss the matter
among yourselves in a friendly spirit and
endeavor to agree upon a verdict.
These are the instructions of the Court.
Approximately one hour and twenty minutes after
hearing the Allen charge, the jury reached a unanimous
guilty verdict.
Boyd appealed his conviction to the Texas Fourth
Court of Appeals, which affirmed the trial court judg-
ment. The Texas Court of Criminal Appeals refused
Boyd’s petition for discretionary review, and dismissed
without prejudice Boyd’s subsequent application for a
state writ of habeas corpus. Boyd then petitioned a fed-
eral district court for a writ of habeas corpus, alleging
that the Allen charge that was given to the jury violated
2 Boyd objected to the supplemental instruction before it
was read on the ground that it forced the minority jurors to
change their views.
A-6
his right of due process in that it unconstitutionally
coerced the jury into reaching a verdict.
A magistrate judge reviewed Boyd’s petition for
habeas corpus relief and concluded that the Allen charge
that was given here unconstitutionally coerced the jury
into reaching a verdict, thus making Boyd’s trial funda-
mentally unfair. Consequently the magistrate judge rec-
ommended that the district court grant Boyd’s petition
for habeas corpus. Scott objected to the magistrate judge’s
recommendation, contending that any inherent coercive-
ness in the Allen charge did not rise to the level of a
constitutional violation, the level of harm required for a
grant of federal habeas corpus relief. Scott also asserted
for the first time that Boyd’s claim was barred pro-
cedurally from federal court review.
In response to Boyd’s objections the magistrate judge
issued a second memorandum and recommendation, con-
cluding that Boyd’s claim was not procedurally barred.
The magistrate judge determined that even if Boyd’s
claim was defaulted procedurally, the default was excus-
able as it was caused by ineffective assistance of trial
counsel. The magistrate judge recommended that Scott's
procedural default defense be rejected. The district court
ultimately adopted the magistrate judge’s memoranda
and recommendations, rejecting Scott's objections, vacat-
ing Boyd’s state court conviction, and granting Boyd's
petition for writ of habeas corpus. Scott appeals the dis-
trict court order that granted a writ of habeas corpus to
Boyd.
een
A-7
II
ANALYSIS
A. STANDARD OF REVIEW
In appeals pertaining to habeas corpus, we review
the district court’s findings of fact for clear error and
rulings of law de novo.? Thus, we review de novo this
appeal which challenges both the district court’s deter-
mination that Boyd’s claim was not barred procedurally
and that court’s determination that Boyd’s petition for
writ of habeas corpus should be graiited because the
instant Allen charge was unconstitutionally coercive.*
3 Williams v. Collins, 16 F.3d 626, 630 (5th Cir.1994}, cert.
denied, _- U.S. __, 115 S.Ct. 42, 129 L.Ed.2d 937 (1994); see
also, Baty v. Balkcom, 661 F.2d 391, 394 n. 7 (Sth Cir.1981)
(stating that standard of review for questions of law and mixed
questions of fact and law allows reviewing court to substitute its
judgment for that of lower court), cert. denied, 456 U.S. 1011,
102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982).
4 We note that the standard of review for an Allen charge
raised on direct appeal is not the same as for an Allen charge
raised pursuant to a writ for habeas corpus. Errors complained
of in a petition for habeas corpus must rise to the level of a
constitutional violation, whereas, on direct appeal the error
complained of must rise to the level of plain error.
A-8
B. PROCEDURAL BAR®
Scott asserts that the district court erred in reviewing
Boyd’s claim because the state court of appeals had
addressed and rejected Boyd’s claim on grounds of ade-
quate and independent state procedure.® If a state court
5 Boyd claims that, as Scott’s objections to the magistrate’s
report were filed after the ten day filing deadline prescribed by
28 U.S.C. § 636(b)(1), the objections were waived and cannot be
raised on appeal. See 28 U.S.C. § 636(b)(1) (1988) (requiring
party to serve and file written objections to magistrate’s pro-
posed findings and recommendations within ten days of being
served). This claim is without merit in that Scott’s objections
were timely pursuant to Rule 6 of the Federal Rules of Civil
Procedure, which excludes weekends and legal holidays from
the computation of the ten day period. See FED.R.CIV.P. 6 (1994)
(providing that when period of time prescribed or allowed is
less than eleven days, intermediate Saturdays, Sundays, and
legal holidays are excluded in the computation). Scott received
the magistrate’s memorandum and recommendation on Thurs-
day, March 25, 1993, and filed his objections on Tuesday, April 6,
1993. Pursuant to Rule 6 the two intermediate weekends
between these dates are excluded from computation. Thus,
Scott’s objections were timely.
6 Scott bases this argument on the portion of the state court
opinion that addresses Boyd’s objection made at trial before the
Allen charge was read to the jury. (Boyd objected to the charge
on the ground that it was coercive and forced the minority
jurors to change their views.) The court noted that Defense
counsel [Boyd] objected to specific language in the charge, but
not to the language complained of on appeal. To preserve error a
trial objection must distinctly specify each ground of objection.
TEX.CODE CRIM.PROC.ANN. art. 36.14 (Vernon Supp.1988).
Objections to the charge must be made before it is read to the
jury, and must specify every ground of objection. Blackwell v.
State, 294 S.W. 852, 854-55 (Tex.Crim.App.1927). The error
asserting improper instruction is based on a claim which was
not presented as a timely objection to the trial court’s charge.
A-9
decision rejecting a federal habeas petitioner’s constitu-
tional claim “rests on an adequate and independent state
procedural bar, and does not fairly appear to rest primar-
ily on federal law, we may not review the merits of the
federal claim absent a showing of cause and prejudice for
the procedural default, or a showing that our failure to
review the claim would result in a complete miscarriage
of justice.”” Procedural default does not bar consideration
of a federal claim, however, unless the last state court
rendering a judgment in the case clearly and expressly
Given the objection made on appeal, the court would have had
an opportunity to delete the complained of language. Boyd v.
State of Texas, No. 04-87-00139CR, 9-10 (Tex.Ct.App. - San An-
tonio [4th Dist.] 1988). Scott asserts that the state procedural
rule - that an objection at trial must correspond to the point of
error on appeal - is strictly and regularly followed by the Texas
courts, thereby satisfying the “adequacy” requirement for a
procedural bar.
7 Young v. Herring, 938 F.2d 543, 546 (Sth Cir.1991) (citing
Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d
640 (1991)), cert. denied, _ U.S. __, 112 S.Ct. 1485, 117 L.Ed.2d
627 (1992); accord Michigan v. Long, 463 U.S. 1032, 1040-41, 103
S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983) (when state court decision
fairly appears to rest primarily on federal law, or interwoven
with federal law, and when adequacy and independence of state
law ground is unclear, Court presumes there is no independent
and adequate state law ground for state court decision). “A state
procedural ground to bar consideration of an issue is not ade-
quate unless it is ‘strictly or regularly followed.’ ” Wilcher v.
Hargett, 978 F.2d 872, 879 (Sth Cir.1992) (quoting Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d
575 (1988)), cert. denied, _ U.S. ____ 114S.Ct. 96, 126 L.Ed.2d 63
(1993).
A-10
states that its judgment rests on a state procedural bar.®
Furthermore, when a state court concludes that an issue
is rejected on the basis of state procedural grounds, but
also reaches the merits of a case, the state court must
make a stronger showing that it relied on its rules of
procedure to reach its conclusion and not on the merits of
the federal claim.’
In responding to Scott’s claim that Boyd’s petition
was barred procedurally, the magistrate judge found that,
even though the state court noted that Boyd’s failure to
object specifically to the language complained of on
appeal (“you are that jury”) was barred procedurally
pursuant to state law,’° the court also reached the merits
8 Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103
L.Ed.2d 308 (1989). This clear and express statement is also
referred to as the “plain statement requirement.” But see, Young
v. Herring, 938 F.2d 543, 549 (5th Cir.1991) (state court decision
may be ambiguous for purposes of “plain statement require-
ment” if we cannot ascertain whether state court based decision
on merits of federal claim or on state procedural bar), cert.
denied, __ U.S. __, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992).
9 Id. “The key is not the clarity of the state court’s language,
or even whether the state court addressed the merits of the
federal claim, but whether the state court may have based its
decision on its understanding of federal law.” Id. at 553-54. A
state court may address the merits of a federal claim in an
alternative holding without permitting federal review if the
original holding is based on adequate and independent state
grounds, and if such results and reasons are stated clearly and
expressly. Id. at n. 12.
10 See TEX.CODE CRIM.PROC.ANN. art. 36.14 (Vernon
Supp.1988) (requiring that trial objection to charge must dis-
tinctly specify each ground of objection in order to be preserved
for appeal).
A-11
of the issue based on federal law to conclude that the
Allen charge did not have a coercive effect on the jury.
The magistrate judge concluded that, as the state court
decision was interwoven with federal law, and did not
express clearly that its decision was based on state pro-
cedural grounds, Boyd’s claim was not procedurally
barred from review.'!
Our de novo review of the state appellate court opin-
ion confirms the findings of the magistrate judge. Thus
we conclude that the issue is not procedurally barred
from federal habeas review, so the district court did not
err in reviewing Boyd's claim regarding the Allen charge.
11 Scott asserts that when a state court bases its decision on
the alternative grounds of procedural default and a rejection of
the merits, a federal court must, in the absence of good cause
and prejudice, deny habeas relief because of the procedural
default. See e.g., Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct.
1038, 1044 n. 10, 103 L.Ed.2d 308 (1989) (requiring federal court
to honor a state court holding that presents sufficient basis for
the judgment even if state court established alternative holding
by relying on federal law). The magistrate considered this argu-
ment, and while agreeing with Scott’s basic premise, reiterated
that in this case, it was not clear that the state court’s discussion
of the merits was, as suggested by Scott, an alternative holding.
Scott contends that it is standard practice in Texas for a state
court to address the merits of a claim such as Boyd's, because
under Texas law, a trial error which is so egregious as to consti-
tute ‘plain error’ does not require objection at trial in order to
justify reversal. Scott asserts that the state court’s substantive
look at Boyd’s claim was merely an inquiry into whether an
Allen charge is so prejudicial as to dispense with the procedural
requirement of an objection. This argument is unpersuasive in
that nothing in the record indicates that the court discussed the
merits of Boyd’s claim in order to bolster its conclusion the
claim was barred based on state procedural grounds.
A-12
C. THE ALLEN CHARGE
1. The District Court’s Analysis
“ ‘To obtain review of a state court judgment under
[28 U.S.C.] § 2254, a prisoner must assert a violation of a
federal constitutional right.’ “12 “A federal writ of habeas
corpus is available to a state prisoner ‘only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.’ “19 Thus, a federal
court reviewing a petition for a writ of habeas corpus
must consider whether, under the totality of the circum-
stances, the errors complained of were so gross or the
trial was so fundamentally unfair that the petitioner’s
constitutional rights were violated.’
In granting Boyd’s petition for writ of habeas corpus,
the district court adopted the magistrate judge’s conclu-
sion that the Allen charge in issue was so coercive that it
rendered Boyd's trial fundamentally unfair. The court
held that, as Boyd’s right of due process was violated, he
was entitled to habeas corpus relief. Scott appeals, assert-
ing that the coercive effect, if any, of the Allen charge did
not rise to the level of a constitutional violation. Thus,
Scott argues, the court erred in granting Boyd’s petition
for writ of habeas corpus. We agree.
12 Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993) (quoting
Lowery v. Collins, 988 F.2d 1364, 1367 (Sth Cir.1993)).
13 Bryan v. Wainwright, 511 F.2d 644, 646 (Sth Cir.1975)
(citing 28 U.S.C.A. § 2254(a)), cert. denied, 423 U.S. 837, 96 S.Ct.
63, 46 L.Ed.2d 55 (1975).
14 Id. (citing Young v. Alabama, 443 F.2d 854, 855 (5th
Cir.1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251
(1972).
A-13
In his first memorandum the magistrate judge
acknowledged the genera! rule that a federal court will
reverse a state court conviction based on an erroneous
jury instruction only when the instruction in question
renders the entire trial fundamentally unfair.!° The mag-
istrate judge reasoned that, as the district court was faced
with an Allen charge that had been expressly recognized
as inherently coercive by both state and federal courts
years before, the logical conclusion was that the instant
Allen charge rendered Boyd’s trial fundamentally
unfair. !6
15 See e.g., Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct.
1730, 1736-37, 52 L.Ed.2d 203 (1977) (articulating that burden of
demonstrating that erroneous instruction was so prejudicial
that it supports a collateral attack on constitutional validity of
state court judgment is greater than showing required to estab-
lish plain error on direct appeal).
16 See e.g., Jenkins v. United States, 380 U.S. 445, 446, 85
S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965) (holding that charge that
said “[y]ou have got to reach a decision in this case” was coer-
cive); see also United States v. Duke, 492 F.2d 693, 697 (Sth
Cir.1974) (noting that state court’s instruction “ .. . a decision
has to be reached by a jury. You are that jury,” was coercive); see
also Edwards v. State, 558 S.W.2d 452, 454 n. 1
(Tex.Crim.App.1977) (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 magistrate likened the language
in issue — “a decision has to be reached by a jury. You are that
jury” — to the coercive supplemental instruction in Jenkins. Of
importance, however, is the fact that the Court in Jenkins did
not base its opinion that the instruction was coercive on consti-
tutional grounds. Rather, the Court based its decision on its
supervisory power over federal courts. See e.g., Lowenfield v.
Phelps, 484 U.S. 231, 239 n. 2, 108 S.Ct. 546, 551-52 n. 2, 98
L.Ed.2d 568 (1988) (noting that, as ruling in Jenkins was based
A-14
The magistrate judge also found that, as the addi-
tional circumstances surrounding the Allen charge
increased the likelihood that the jury was coerced, it
followed that the Allen charge, plus the additional cir-
cumstances, rendered Boyd’s trial unfair. This judge con-
sidered relevant the facts that (1) the charge was given on
the first day of jury deliberations after less than 4 1/2
hours of deliberating; (2) the court gave the instruction
after receiving the first note of its kind that the jury was
deadlocked; (3) there was no initial direction from the
judge to merely continue deliberations, and (4) one hour
after hearing the Allen charge, the jury reached a guilty
verdict.
on the Court’s supervisory powers, it is not helpful in resolving
petitioner’s federal habeas claim, which must rise to level of a
constitutional violation). The magistrate also relied on Duke, in
which the district court gave an Allen charge almost identical to
the one given at Boyd’s trial. We concluded in Duke that the
language used by the district court judge-“...a decision has to
be reached by a jury... You are that jury” - was coercive. We
noted that while the charge contained qualifying language that
tended to ameliorate the coercive language of the charge, we
were unwilling to “speculate on whether the jury was disabused
of what it had just been told, which was that a jury was required
to reach a decision and it was that jury.” Duke, 492 F.2d at 697.
We specifically note in response to the magistrate’s reliance on
Duke, that our role in Duke (a direct appeal) was a supervisory
role over the district court, whereas our role in this appeal is to
review the charge an issue to determine whether the peti-
tioner’s constitutional rights have been violated. Unlike the
instant appeal, Duke did not require that we assess the totality
of the circumstances to determine whether the Allen charge
itself and the surrounding circumstances rendered the entire
trial fundamentally unfair.
A-15
The magistrate judge bolstered his conclusion that
the Allen charge was unconstitutionally coercive by test-
ing his findings under our two-pronged standard used
for such determinations.!”7 The judge reasoned that, as it
was highly likely that the inherently coercive language,
used in combination with the surrounding circumstances,
coerced the jury into reaching a verdict, it was proper to
conclude here that Boyd’s jury had been coerced. Based
on this conclusion the magistrate judge recommended
that Boyd’s petition for habeas corpus be granted on the
ground that Boyd’s trial was fundamentally unfair.
2. Our De Novo Review of the Allen Charge
As we begin our de novo review of the instant Allen
charge, we note again that a collateral attack on a state
court judgment involving an Allen charge requires us to
look at the totality of the circumstances to determine
whether a constitutional violation has occurred. At this
17 This two-pronged standard considers whether (1) the
semantic deviation from approved Allen charges is so prejudi-
cial to the defendant as to require reversal, and (2) the circum-
stances surrounding the giving of an approved Allen charge are
coercive. See e.g., United States v. Heath, 970 F.2d 1397, 1406
(5th Cir.1992) (reviewing modified Allen charge for compliance
with semantic deviation from approved Allen charges, and
assessing coerciveness of surrounding circumstances), cert.
denied, __ U.S. __, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993);
United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir.1989)
(same), cert. denied, Kinnear v. United States, 493 U.S. 1087, 110
S.Ct. 1152, 107 L.Ed.2d 1056 (1990) and 496 U.S. 926, 110 S.Ct.
2621, 110 L.Ed.2d 642 (1990); United States v. Bottom, 638 F.2d
781, 787 (5th Cir.1981) (same).
sac. seems
A-16
level of analysis we consider briefly two habeas cases that
establish the basis for our conclusion.
In Lowenfield v. Phelps!* a habeas petitioner asserted
that the conduct of a Louisiana state court - which
included an Allen charge plus two separate polls of the
jury — coerced the jury into sentencing him to death. The
state court gave an Allen charge to the jury before sen-
tencing deliberations commenced. At the same time the
court instructed the jury that, pursuant to Louisiana law
the court would impose a sentence of life imprisonment
without benefit of probation, parole, or suspension of
sentence if the jury did not decide on a penalty. Later,
after the jury notified the court that it was unable to reach
a decision, the court polled the jurors twice, asking them
whether they felt that further deliberations might help
them reach a verdict. In addition to polling the jury, the
court repeated the instructions it had given to the jurors
before they began deliberating. The jury reached a deci-
sion within thirty minutes after being polled the second
time, and after hearing the second set of instructions from
the court.
Lowenfield petitioned the federal court for a writ of
habeas corpus, asserting that his constitutional rights had
been violated when his deadlocked jury was coerced into
reaching a sentence. We denied the petitioner relief,
affirming the district court’s decision that the conduct of
the state court did not render the petitioner’s trial
18 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).
A-17
fundamentally unfair.'% After granting certiorari, the
Supreme Court held that the conduct of the state court -
polling the jury and issuing an Allen charge that encour-
aged jurors to decide the case for themselves but only
after discussion and impartial consideration of the case
with the other jurors —- was not coercive in such a way as
to deny the petitioner his constitutional rights.*°
In Bryan v. Wainwright?! we reviewed a district court
decision that granted federal habeas relief to a state pris-
oner. In granting the petition the district court found that
the state court jury was coerced when that court sua
sponte called the jury back into the courtroom (on two
separate occasions), and gave an Allen charge and a
twenty minute deadline in which to see if the jury court
[sic] reach a verdict.22 On appeal, we determined that the
19 Lowenfield v. Phelps, 817 F.2d 285, 293 (5th Cir.1987),
aff'd, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). We
agreed with the district court that a review of record did not
demonstrate that the jury instruction was coercive to the extent
that the trial was rendered fundamentally unfair. We noted that
the jury had deliberated nine and one-half hours before reach-
ing a verdict in the penalty phase, reasoning that this length of
time supported our conclusion that the jury was not coerced
into reaching a sentence
20 Lowenfield, 484 U.S. at 240-41, 108 S.Ct. at 552-53.
21 511 F.2d 644 (5th Cir.1975), cert. denied, 423 U.S. 837, 96
S.Ct. 63, 46 L.Ed.2d 55 (1975).
22 Id. at 645. The jury had been deliberating for five and
one-half hours when the court called them back to the court-
room sua sponte to determine whether they were close to a
verdict. Upon learning that the jury was not close to a verdict
the court gave the jury an Allen charge and dismissed them to
continue deliberating. One-half hour later the court called the
jury back into the court room and asked if the jury believed that
A-18
comments of the judge were not so prejudicial as to make
the petitioner’s trial fundamentally unfair. We held that
the coercive effect, if any, of the state trial procedure did
not reach constitutional proportions, and we reversed the
district court’s decisions with instructions to deny the
petition for writ of habeas corpus.?9
Relying on the facts of Lowenfield and Bryan as
indicative of the degree of coercion necessary to support
a writ of habeas corpus, we are convinced that the instant
Allen charge does not rise to the level of a constitutional
violation and thus cannot support a petition for habeas
corpus. Stated differently, we are not convinced that
Doyd’s Allen charge unconstitutionally coerced this jury
they could arrive at a verdict ina short period of time. The court
then gave the jury an additional twenty minutes and told the
jury “we'll see if you can arrive at a verdict within the next
twenty minutes.” Within seventeen minutes the jury returned
with a guilty verdict. Id. On appeal, the district court deter-
mined that a “coercive atmosphere was created in which the
jury was forced to deliberate to verdict.” Id. at 646, quoting
Bryan v. Wainwright, 377 F.Supp. 766, 769 (M.D.Fla.1974), rev'd
511 F.2d 644 (5th Cir.1975), cert. denied, 423 U.S. 837, 96 S.Ct. 63,
46 L.Ed.2d 55 (1975). The court concluded that the total coercive
effect deprived the petitioner of his constitutional rights of due
process under the Fifth and Fourteenth Amendments, thereby
requiring the court to grant the petitioner’s writ of habeas
corpus. ‘d. We reversed the district court on appeal, concluding
that the level of coercion, if any, did not rise to the level of a
constitutional violation.
23 Id. at 646. In reversing the district court in Bryan, we
noted specifically that the district court relied on direct appeal
cases in which the coercive effect of the facts did not have to rise
to the constitutional level of deprivation of due process to merit
relief. Id.
A-19
into reaching a verdict. We disagree, however, with the
magistrate judge’s determination that, standing alone, the
Allen charge was coercive in that it essentially told the
jury that it had to reach a verdict. Admittedly, the state
court did say that “a decision has to be reached by a
jury,” and “you are that jury.” We note, however, that the
court also instructed the jury that (1) it should “endeavor
to reach an agreement if at all possible,” (2) it “ought to
make every effort to arrive at a unanimous verdict,” (3)
the “verdict must be the verdict of each individual juror
and not mere acquiescence,” (4) it has the “duty to decide
the case if you can conscientiously do so,” and (5) it
should return to the jury room and “endeavor to agree
upon a verdict.” Looking at the entire text of the charge,
in the full context of the case, we are convinced that the
instruction did more to encourage the jurors to reach a
verdict than it did to coerce them. Thus, we conclude that
the phrase “you are that jury” was not unconstitutionally
coercive; in the totality of the circumstances we do not
believe that that phrase forced the jury to reach a verdict.
In addition, after reviewing the additional circum-
stances surrounding the charge, we are even more firmly
convinced that any coerciveness generated by the court's
instruction fell short of the level of a constitutional viola-
tion. The jury deliberated between 4 1/2 and 5 hours
before it notified the court that it was deadlocked. Only
after hearing that the jury was deadlocked did the court
read the Allen charge and encourage the jury to continue
deliberating. Approximately one hour and twenty min-
utes after hearing that charge the jury returned with its
verdict. Clearly, having determined in Bryan that the
court’s conduct of spontaneously summoning the jury,
A-20
giving an Allen charge before being notified that the jury
was deadlocked, and imposing a quick “turn-around”
deadline in which to try to reach a verdict, did not render
a trial fundamentally unfair, we cannot now hold uncon-
stitutionally coercive the instant situation in which (1) the
jury deliberated for approximately the same amount of
time as the Bryan jury before notifying the court that it
was deadlocked, and (2) the court gave no apparent
deadline or otherwise pressured the jury to reach a ver-
dict.
Similarly, as we concluded in Lowenfield that there
was no unconstitutional coercion when the court twice
polled the jury, reiterated a supplemental jury charge,
and told the jurors that if they failed to determine a
penalty the court would impose its own sentence, it must
follow here, under palpably less egregious circumstances,
that there is no unconstitutional coercion. When we
review all the factors together we are convinced that
Boyd’s jury was not unconstitutionally coerced into
reaching a verdict. We conclude, therefore, that the dis-
trict court erred in granting Boyd’s petition for habeas
corpus based on its finding that the Allen charge given by
the state court rendered Boyd’s trial fundamentally
unfair.
Ill
CONCLUSION
Federal habeas corpus will not lie unless an error was
so gross or a trial was so fundamentally unfair that the
petitioner’s constitutional rights were violated. In deter-
mining whether an error was so extreme or a trial was so
A-21
fundamentally unfair we review the putative error at
issue, looking at the totality of the circumstances sur-
rounding that error for a violation of the petitioner’s
constitutional rights.
Although previous direct appeal cases have held that
Allen charges similar (and almost identical) to Boyd’s
Allen charge were coercive, prior federal habeas cases
have held that similar Allen charges accompanied by
more egregious circumstances did not merit relief. We
conclude, therefore, after reviewing the instant Allen
charge in its full context, and in conjunction with the
totality of the circumstances surrounding the charge, that
the district court erred in determining that the Allen
charge given at Boyd’s state court trial rendered the trial
fundamentally unfair, requiring that court to grant Boyd’s
petition for habeas corpus relief and vacate his sentence.
Thus, we reverse the district court order granting Boyd’s
writ of habeas corpus and remand this case to that court
for the purpose of dismissing Boyd’s habeas petition.
REVERSED AND REMANDED.
REYNALDO G. GARZA, Circuit Judge dissenting.
I respectfully dissent because I have always felt that
the type of Allen charge given by the state district judge
in this criminal case was coercive and deprived Boyd of a
fair trial. I would therefore affirm the district court's
granting of a new trial.
B-1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL J. BOYD, §
Petitioner, :
. § CIVIL NO.
JAMES A. COLLINS, Director, 5 SA-92-CA-0497
Texas Department of Criminal §
Justice, Institutional Division, :
Respondent. g
MEMORANDUM AND RECOMMENDATION
(Filed Nov. 13, 1992)
Petitioner Michael J. Boyd has filed this habeas
corpus action pursuant to Title 28 U.S.C. Section 2254
challenging his February, 1987 state court conviction on a
charge of aggravated sexual assault. Petitioner’s sole
ground for relief is an argument that the state trial court
erred in giving a modified Allen charge to the jury after
jurors initially indicated that they were unable to reach a
unanimous verdict. The respondent has filed a motion for
summary judgment. For the reasons set forth below, the
recommendation is that petitioner’s application for
habeas corpus relief be granted and that his state court
conviction be vacated.
Statement of the Case
Petitioner was charged in state court with aggravated
sexual assault. On February 13, 1987, a jury in state
district court found petitioner guilty of that offense.
aaa aa aa |
B-2
However, prior to the rendition of its verdict, the jury
sent out a note which read as follows: “Judge Butler, it is
with deep regret that we, the jury, cannot reach a unani-
mous decision in this case. Thank you. Elena Oviedo,
foreman.”! In response to that note, the state trial judge
gave the jury a supplemental instruction along the lines
of that approved by the Supreme Court in Allen v. United
States.2 The state trial court included the following lan-
guage in its Allen charge:
MEMBERS OF THE JURY:
In response to the information you have
given me, I give you the following instructions,
and I want you to pay close attention to what |
tell you:
You should endeavor to reach an agreement
if at all possible. Some jury, sometime, will have
to decide this question.
The issue has been tried very ably by both sides,
who have presented this evidence to you, and a
decision has to be reached by a jury. You are that
jury, and it seems to me that you ought to make
every effort to arrive at a unanimous verdict and to
reach a conclusion.
Of course, the verdict of the jury should
represent the opinion of each individual juror,
: but that does not mean that the opinion may not
be changed for a conference in the jury room.
1 See Statement of Facts from petitioner’s state court trial,
Volume IV of V, at pp. 743 & 746.
2 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896).
B-3
The very object of the jury system is to
secure unanimity by comparison of views and
by argument among the jurors themselves.
Each juror should listen with deference to
the arguments of the other jurors, and with a
distrust of his own judgment if he finds the
large majority of the jury takes a different view
of the case from what he himself takes.
No juror should go to the jury room with a
blind determination that the verdict should rep-
resent his opinion of the case at that moment, or
that he should close his ears to the arguments of
other jurors who are equally honest and intel-
ligent as himself.
Accordingly, although your verdict must be
the verdict of each individual juror and not a
mere acquiescence in the conclusion of your
fellow jurors, the Court instructs you, however,
that you should examine what has been submit-
ted to you with an open mind, and with candor
and with proper regard and deference to the
opinion of each other.
It is your duty to decide the case if you can
conscientiously do so.
You should listen to each other’s argument
with a disposition to be convinced. If much the
larger number favor one side or the other, a
dissenting juror should consider whether, in the
light of the opinions that are expressed by the
other jurors in the jury room, he is not in error
as to his views.
I want you to go back to the jury room and
continue your deliberations. Discuss the matter
among yourselves in a friendly spirit and
endeavor to agree upon a verdict.
hehehe pat eat hal pl NE CRIED IRE 8
Gesttite How zi
PUP Paaee aa i
ee Ry ee LE FUP
si ian
B-4
These are the instructions of the Court.
The jury began deliberations at 9:55 a.m. and the
state court gave that Allen charge a little after 4 p.m. on
the jury’s first day of deliberations on the guilt and
innocence phase of petitioner’s trial.* At approximately
5:20 p.m. that same afternoon, the jury returned with a
unanimous verdict of guilty.5 The jury subsequently
assessed punishment, based upon petitioner’s prior fel-
ony conviction for theft, at life imprisonment.
Boyd appealed. The Texas Court of Appeals for the
Fourth Supreme Judicial District affirmed petitioner's
conviction and sentence in an unpublished opinion dated
February 17, 1988.6 The Texas Court of Criminal Appeals
refused petitioner’s petition for discretionary review on
April 27, 1988. According to respondent, petitioner filed
an application for state habeas relief which was dis-
missed without prejudice by the Texas Court of Criminal
appeals on October 31, 1990.7
3 See Statement of Facts from petitioner’s trial at Volume IV
of V at pp. 746-49, and Transcript from petitioner’s trial at pp.
89-90.
4 See Transcript from petitioner’s trial at p. 12.
> Id.
6 See Boyd v. State, Case No. 04-87-00139-CR (Tex. App. -
San Antonio February 17, 1988).
7 Respondent failed to include any of the state court
records related to petitioner’s state habeas proceeding among
the state court records submitted in this cause. Therefore, Court
is unable to verify any of the allegations, concerning that pro-
ceeding, contained in respondent’s answer and motion for sum-
mary judgment.
B-5
On May 13, 1992, petitioner filed his application for
habeas relief in inis Court, presenting his sole ground for
relief.6 Respondent filed his answer and motion for sum-
mary judgment on July 20, 1992.9 On September 17, 1992,
petitioner filed a response to respondent’s answer in
which petitioner argued that the modified Allen charge
given by the state trial court in his case violated his
constitutional rights.!° In an Order dated October 8, 1992,
this Court directed respondent to file a complete copy of
the Texas Court of Appeals’ opinion affirming peti-
tioner’s conviction, explained the problem posed by peti-
tioner’s sole ground for relief, and gave the parties until
October 30 to file additional briefs on the sole legal issue
before the Court.1! On November 3, 1992, respondent
filed its supplemental answer, in which it argued that the
giving of the admittedly defective Allen charge in ques-
tion did not violate petitioner’s constitutional rights. 12
Analysis and Authorities
Although petitioner argues that the Allen charge vio-
lated state law, only federal constitutional issues are rele-
vant to this Section 2254 proceeding.!3 Respondent
asserts that even if submission of the Allen charge was
error, it was not a constitutional violation. In a collateral
8 See docket entry no. 3.
° See docket entry no. 6.
10 See docket entry no. 12.
11 See docket entry no. 13.
12 See docket entry no. 16.
3 Dupuy v. Butler, 837 F.2d 699, 701 n.7 (5th Cir. 1988).
B-6
proceeding, the question is not whether the instruction is
undesirable, erroneous or even universally condemned,
but whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due pro-
cess.!14 The burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a collat-
eral attack on the constitutional validity of a state court’s
judgment is even greater than the showing to establish
plain error on direct appeal.!5 Liberally construed, peti-
tioner asserts: (1) that the submission of the Allen charge,
in any form, was error, (2) that the Allen charge suggested
that those jurors in the minority vote with the majority,
and (3) that the language underlined above coerced a
guilty verdict.
The Fifth Circuit first expressly approved the use of
Allen charges in United States v. Bailey'® and has consis-
tently upheld the use of modified Allen charges that are
not coercive in nature.!7 Thus, the mere use of an Allen
14 Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737,
52 L.Ed.2d 203 (1977), quoting Cupp v. Naughten, 414 U.S. 141,
146, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1974).
15 Henderson, 431 U.S. at 154, 97 S.Ct. at 1736.
16 480 F.2d 518 (5th Cir. 1973) (en banc). The specific lan-
guage of the modified Allen charge approved in Bailey appears
in the panel opinion in that case. See United States v. Bailey, 468
F.2d 652, 657 n.5 (5th Cir. 1972).
17 See United States v. Kelly, 783 F.2d 575, 576-77 (5th Cir.),
cert. denied, 479 U.S. 889 (1986); United States v. Gordon, 780 F.2d
1165, 1177 (5th Cir. 1986); United States v. Kimmel, 777 F.2d 290,
294-95 (5th Cir. 1985), cert. denied, 476 U.S. 1104 (1986); United
States v. Nichols, 750 F.2d 1260, 1266 (5th Cir. 1985); United States
v. Jennings, 724 F.2d 436, 447 (5th Cir.), cert. denied, 467 U.S. 1227
(1984); United States v. Anderton, 679 F.2d 1199, 1203-04 (Sth Cir.
B-7
charge is not a constitutional violation. However, more
than a decade prior to petitioner’s trial, the Fifth Circuit
held that the almost identical language emphasized
above from the Allen charge given in petitioner’s trial
was sufficient to render an otherwise permissible mod-
ified Allen charge erroneous.!® Furthermore, the Texas
Court of Criminal Appeals called this same language to
the attention of Texas judges in a footnote in one of its
1977 opinions.!9 Thus the defect in the language quoted
above from the Allen charge used in petitioner’s trial was
made evident to both state and federal trial courts long
before petitioner’s trial commenced.2°
In its Order dated October 8, the Court called these
facts to the attention of the parties and gave them an
opportunity to respond to the issue of whether the state
trial court’s use of the proscribed language quoted above
1982); United States v. LaRiche, 549 F.2d 1088, 1092-93 (5th Cir.),
cert. denied, 430 U.S. 987 (1977); United States v. McCray, 528 F.2d
1029, 1031 (5th Cir. 1976); United States v. Cherami, 520 F.2d 325,
331 (Sth Cir. 1975); United States v. Amaya, 509 F.2d 8, 10-12 (5th
Cir. 1975), cert. denied, 429 U.S. 1101 (1977); and United States v.
Fonseca, 490 F.2d 464, 471 (5th Cir.), cert. denied, 419 U.S. 1072
(1974).
18 See United States v. Duke, 492 F.2d 693, 697 (5th Cir. 1974).
19 See Edwards v. State, 558 S.W.2d 452, 454 n.1 (Tex. Crim.
App. 1977).
20 It should be noted that petitioner did not object at trial to
the language found erroneous in United States v. Duke. However,
the State, perhaps because it is not clear that the Texas Court of
Appeals relied upon procedural default, did not raise pro-
cedural bar as an issue. Therefore, petitioner’s failure to object
does not preclude consideration of the defective language. See
United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).
—————
B-8
in its Allen charge could be justified. In response, respon-
dent has offered the general rule that a federal court will
reverse a state court criminal conviction based upon erro-
neous jury instructions only when the instructions in
question render the entire trial fundamentally unfair.
While the Court agrees that this rule provides the appro-
priate standard for evaluating the propriety of jury
instructions generally,?! in this case we are faced with an
Allen charge that was expressly and specifically recog-
nized as inherently coercive by both the state and federal
courts years before petitioner’s trial.
Respondent also cites the Fifth Circuit’s opinion in
Bryan v. Wainwright?2 in support of his argument that the
error committed by the state trial court in connection
with petitioner’s Allen charge does not rise to the level of
a constitutional violation. In that case, the Fifth Circuit
held that a state trial court’s use of an Allen charge and a
subsequent instruction giving the jury twenty minutes to
reach a verdict were not so coercive as to rise to the level
of a constitutional violation.2> The Court held that unless
the error was so gross or the trial fundamentally unfair,
habeas corpus would not lie to correct erroneous jury
instructions.24 However, at no time in Bryan did the estate
court instruct the jury that it had to reach a verdict.
21 It must be noted that neither Henderson v. Kibbe, supra,
nor Cupp v. Naughten, supra, involved Allen charges.
22 511 F.2d 644 (5th Cir.), cert. denied, 423 U.S. 837 (1975).
23 511 F.2d at 646.
24 Id.
B-9
Likewise, the other case directly dealing with a Allen
charge cited by respondent in his supplemental answer,
Johnson v. Dugger?5, also did not involve an Allen charge
that required the jury to render a verdict. On the contrary,
state trial court judge in Johnson took great pains in his
Allen charge to advise the jury that he could not compel
them to reach a unanimous verdict and that he would
declare a mistrial if further deliberations proved unsuc-
cessful.6
The instruction in this case that “a decision has to be
reached by a jury. You are that jury...” is no different in
effect from an instruction that, “You have got to reach a
decision in this case.” The latter instruction was found to
be coercive and resulted in a reversal of the conviction in
Jenkins v. United States.?” In petitioner’s case, the trial
judge did give certain instructions which tended to ame-
liorate the coercive language. He stated, “You should
endeavor to reach an agreement if at all possible. Some
jury, sometime, will have to decide this question.” How-
ever, in United States v. Duke, the Fifth Circuit considered
ameliorative language but was “unwilling to speculate on
whether the jury was disabused of what it had just been
told... . “28
Other circumstances surrounding the giving of the
Allen charge in petitioner’s case increase the likelihood
25 817 F.2d 726 (11th Cir. 1987).
26 See Johnson v. Dugger, 817 F.2d at 730.
27 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957
(1965).
28 492 F.2d at 697.
B-10
that the jury was coerced by the instruction. The record
reveals that the jury was given the case a little before
10:00 a.m., deliberated until lunch, then returned to delib-
erate in the afternoon.?? At approximately 4:00 p.m., it
sent out its note indicating that it was unable to each a
unanimous decision. Within minutes, the trial judge
called the jury back into the courtroom, gave the erro-
neous Allen charge and sent the jury back to deliberate.
About 5:15 p.m., the jury returned its verdict of guilty.
The Fifth Circuit has established a two-pronged test
for determining the propriety of a particular Allen charge:
(1) the semantic deviation from approved Allen charges
cannot be so prejudicial to the defendant as to require
reversal, and (2) the circumstances surrounding the giv-
ing of an approved Allen charge must not be coercive.* In
this case, the language quoted above from the state trial
court’s Allen charge not only deviates from the language
used in approved Allen charges, but uses the same lan-
guage that the Fifth Circuit specifically rejected more
than a decade prior to petitioner’s trial in United States v.
Duke.>! Thus, the Allen charge fails the first prong of the
Fifth Circuit’s test for the propriety of such charges.
Furthermore, given the circumstances surrounding
the giving of the Allen charge during petitioner’s trial, it
is highly likely that the inherently coercive nature of the
29 See Transcript from petitioner’s trial, at p. 12.
30 See United States v. Heath, 970 F.2d 1397, 1406 (5th Cir.
1992); United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989),
cert. denied, 493 U.S. 1087 (1990); and United States v. Bottom, 638
F.2d 781, 787 (5th Cir. 1981).
31 492 F.2d 693, 697 (5th Cir. 1974).
B-11
language in question impacted the jury. The Allen charge
was given the first day of deliberations after less than 41/2
hours of deliberation. The deadlock note was the first
note of its kind from the jury and the Allen charge was
the trial court’s first response. There was no initial direc-
tion to merely continue deliberations. Approximately one
hour after the Allen charge was read, a guilty verdict was
returned. The Court concludes that the giving of the
Allen charge in petitioner’s case rendered his trial funda-
mentally unfair.35
Recommendation
For the reasons set forth above, it is recommended
that petitioner’s petition for habeas corpus relief be
GRANTED and that petitioner’s state court conviction be
VACATED.
32 See United States v. United States Gypsum Co., 438 U.S. 422,
462, 98 S.Ct. 2864, 2886, 57 L.Ed.2d 854 (1978) (swift resolution
in the face of a prior indication of deadlock raises serious ques-
tions regarding the coerciveness of an instruction).
33 Although unnecessary to resolution of this case, evalua-
tion of the Allen charge, as regards petitioner’s objection that it
instructed the minority jurors to vote with the majority, suggests
no constitutional violation. The charge directed the jurors to
listen to each other’s arguments and keep an open mind. The
jury was instructed to decide the case “if you can conscien-
tiously do so.” There is no indication that the charge, to the
extent it concerned the vote of the minority jurors, coerced the
jurors for acquittal to vote for conviction.
B-12
Instructions for Service and
Notice of Right to Appeal/Object
The United States District Clerk shall serve a copy of
this Memorandum and Recommendation on all parties by
mailing a copy to each of them by Certified Mail, Return
Receipt Requested. Pursuant to Title 28 U.S.C. Section
636(b)(1), any party who desires to object to this report
must serve and file written objections to the Memoran-
dum and Recommendation within ten (10) days after
being served with a copy unless this time period is mod-
ified by the District Court. A party filing objections must
specifically identify those findings, conclusions or recom-
mendation to which objections are being made; the Dis-
trict Court need not consider frivolous, conclusive or
general objections. Such party shall file the objections
with the Clerk of the Court and serve the objections on
the Magistrate Judge and on all other parties. A party's
failure to file such objections to the proposed findings,
conclusions and recommendations contained in this
report shall bar the party from a de novo determination by
the District Court.*4 Additionally, any failure to file writ-
ten objections to the proposed findings, conclusions and
recommendation contained in this Memorandum and
Recommendation within ten (10) days after being served
with a copy shall bar the aggrieved party from appealing
the factual findings of the Magistrate Judge that are
34 Nettles v. Wainwright, 677 F.2d 404, 410 (Sth Cir. 1982), see
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d
435 (1985).
B-13
accepted or adopted by the District Court, except upon
grounds of plain error or manifest injustice.*°
DATED, this 13th day of November, 1992.
/s/ John W. Primomo
JOHN W. PRIMOMO
UNITED STATES
MAGISTRATE JUDGE
35 Nettles, 677 F.2d at 410.
FU SRL OLO AEE ARELLANO TRL ALIEN ME ORES NN UE TS
C-1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL J. BOYD,
Petitioner,
V.
JAMES A. COLLINS,
Director, Texas
Department of Criminal
Justice, Institutional
Division,
CIVIL NO. SA-92-CA-0497
*
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*
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.
.
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*
Respondent.
MEMORANDUM AND RECOMMENDATION
(Filed Mar. 16, 1993)
On November 13, 1992, the undersigned entered a
Memorandum and Recommendation, finding that the
Allen charge given to the jury at petitioner’s state court
trial was constitutionally erroneous, and recommending
that petitioner’s application for habeas relief be granted.
In his objections to the recommendation, respondent con-
tested this finding and, for the first time, contended that
petitioner had not objected to the disputed language in
the Allen charge at trial and was, thus, barred from pre-
senting this claim now because of this procedural default.
(Docket no. 22). Petitioner argues that respondent has
forfeited the procedural default defense by raising it after
the Memorandum and Recommendation and, alter-
natively, that the failure to object at trial does not pre-
clude consideration of the issue now. (Docket nos. 23 and
26). Having considered the pleadings, the state court
C-2
records and the argument of counsel, the court is of the
opinion that petitioner’s claim is not barred by pro-
cedural default.
It is undisputed that petitioner’s counsel did not
object at trial to the language in the Allen charge which
formed the basis for this Court’s decision to recommend
that petitioner be granted habeas relief. However, the
mere existence of a basis for a state procedural bar does
not deprive a federal court of jurisdiction; the state court
must actually have relied on the procedural bar as an
independent basis for its disposition of the case. Caldwell
v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86
L.Ed.2d 231 (1985). When a state-court decision fairly
appears to rest primarily on federal law, or to be inter-
woven with federal law, and when the adequacy and
independence of any possible state law ground is not
clear from the face of the opinion, the Court will presume
that there is no independent and adequate state court
ground for the state court decision. Michigan v. Long, 463
U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201
(1983). Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992).
Thus, procedural default does not bar consideration of a
federal claim unless the last state court rendering a judg-
ment in the case clearly and expressly states that its
judgment rests on a state procedural bar. Harris v. Reed,
489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308
(1989). See Coleman v. Thompson, __ U.S. __, 111 S.Ct.
2546, 2553-59, 115 L.Ed.2d 640 (1991).
The Court does not believe that the delay in the
State’s presentation of the procedural default defense
precludes its consideration. The defense can be waived if
it is not presented in the district court. Washington v.
eae Tighe kanes ae A PACH
AERIS
LEAR ATR HY
? ae Pe iiakiiones
NMS ites Aen tnt Gh ct
ei pate Pe ee
Spb til hats RUA Rn sae Ht, Pak ER Ie ae SRLS Pree oa *
C-3
Watkins, 655 F.2d 1346, 1368 (5th Cir. 1981), cert. denied,
456 U.S. 949 (1982). However, such a waiver can be
averted by the State if the procedural default issue is
raised at any point in the district court proceeding. Wig-
gins v. Procunier, 753 F.2d 1318, 1321 (Sth Cir. 1985). Rais-
ing the issue for the first time in objections to the
magistrate judge’s recommendation is timely. Young v.
Herring, 777 F.2d 198, 204 (5th Cir. 1985).
On direct appeal petitioner did complain of the lan-
guage at issue. The Court of Appeals stated:
Defense counsel objected to specific lan-
guage in the charge, but not to the language
complained of on appeal. To preserve error a
trial objection to the charge must distinctly spec-
ify each ground of objection. . . . Objections to
the charge must be made before it is read to the
jury, and must specify every ground of objec-
tion. .. . The error asserting improper instruc-
tion is based on a claim which was not
presented as a timely objection to the trial
court’s charge. . . . Given the objection made on
appeal, the court would have had an oppor-
tunity to delete the complained of language.
The Court of Appeals then addressed the merits of the
issue and, relying on federal precedents, held that the
language did not have a coercive effect.! The State con-
tends that the Court of Appeals’ language, quoted above,
1 Interestingly, the appellate court, in reaching this holding,
relied upon other language in the Allen charge that “some jury,
sometime, will have to decide this question.” In United States v.
Harris, 391 F.2d 348, 355 (6th Cir.), cert. denied, 393 U.S. 874
(1968), the Court of Appeals held that similar language was
itself coercive and was an unauthorized extension of the Allen
charge.
C-4
constitutes a clear and express statement of the appellate
court’s intent to rely on procedural default. This Court
does not agree. The Court of Appeals cited state law
which indicates the necessity for objection but it never
clearly and expressly held that consideration of peti-
tioner’s Allen charge challenge was precluded by pro-
cedural default.
The situation is very similar to Harris v. Reed, in
which the state appellate court referred to “well-settled”
principles of state law that “those issues which could
have been presented [on direct appeal], but were not, are
considered waived.” Harris v. Reed, 489 U.S. at 258, 109
S.Ct. at 1040. The appellate court found that petitioner's
allegation “could have been raised in [his] direct appeal”
but went on to consider and reject the claim on its merits.
Id. The Supreme Court concluded that the state appellate
court did not clearly and expressly rely on waiver as a
ground for rejecting petitioner’s claim. Id. at 266, 109
S.Ct. at 1045.
To be sure, the state court perhaps laid the
foundation for such a holding by stating that
most of petitioner’s allegations ‘could have been
raised [on] direct appeal.’ Nonetheless, . . . this
statement falls short of an explicit reliance on a
state-law ground.
Id.
The opinion in the case at bar also laid the founda-
tion for a finding of procedural default. It noted peti-
tioner’s failure to object at trial to the challenged
language and cited Texas law requiring such an objection.
The opinion also observed that had the objection been
made, the trial court could have deleted the offensive
C-5
language. However, the state appellate court did not
explicitly rely on procedural default. The reference to
state law in the opinion is insufficient to demonstrate
clearly whether the court intended to invoke waiver.
Harris v. Reed 489 U.S. at 266 n.13, 109 S.Ct. at 1045 n.13.
The court considered and rejected the merits of peti-
tioner’s claim. The State correctly observes that when a
state court bases its decision upon the alternative
grounds of procedural default and a rejection of the
merits, a federal court must, in the absence of good cause
and prejudice, deny habeas relief because of the pro-
cedural default. Harris v. Reed, 489 U.S. at 264 n.10, 109
S.Ct. at 1044 n.10. Cook v. Lynaugh, 821 F.2d 1072, 1077
(5th Cir. 1987). However, in this case, the state appellate
court did not clearly and expressly base its decision upon
procedural default. While it perhaps could be argued that
the language in the state court’s opinion would have
sufficed had the state court never reached the federal
claim, the state court, as in Harris v. Reed, clearly went on
to reject the federal claim on the merits. 489 US. at 266
n.13, 109 S.Ct. at 1045 n.13. Thus, an ambiguity exists as
to the basis for the state court decision which permits
federal review of the Allen charge issue.
Even if the state court had relied on procedural
default, this Court would not be precluded from consid-
ering petitioner’s Allen charge claim. If procedural
default applies, then a habeas petitioner cannot prevail in
federal court absent a showing of cause for the pro-
cedural default and prejudice from the error which has
been defaulted. Sawyer v. Whitley, __ U.S. __, 112 S.Ct.
2514, 2518, 120 L.Ed.2d 269 (1992). The existence of cause
must ordinarily turn on whether the petitioner can show
C-6
that some objective factor external to the defense
impeded counsel’s efforts to comply with the state pro-
cedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct.
2639, 2645, 91 L.Ed.2d 397 (1986). Smith, 977 F.2d at 956.
Even without cause and prejudice, a procedurally
defaulted claim can be considered if the failure to con-
sider the claim would result in a fundamental miscarriage
of justice. Coleman, ___ U.S. at __, 111 S.Ct. at 2565. Such
a miscarriage of justice would occur if the failure to
consider the defaulted claim would probably result in the
conviction of one who is actually, as opposed to legally,
innocent. Murray, 477 U.S. at 496, 106 S.Ct. at 2649.
Petitioner does not contend and the Court can find
no basis for a finding that the failure to consider peti-
tioner’s claim would result in a fundamental miscarriage
of justice. However, cause and prejudice, sufficient to
defeat procedural default, do exist. As cause, petitioner
asserts the ineffectiveness of his attorney in failing to
object to the charge. Ineffective assistance of counsel, in a
proceeding in which the defendant is constitutionally
entitled to counsel, can constitute cause for procedural
- default. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at
2645. Wiley v. Puckett, 969 F.2d 86, 101 (5th Cir. 1992).2 The
2 As when ineffective assistance is itself a ground for
habeas relief, a petitioner asserting such a claim as cause for
procedural default must first exhaust available state remedies.
Murray v. Carrier, 477 U.S. at 488-89, 106 S.Ct. 2646. Petitioner
did allege, in his most recent state habeas petition, ineffective
assistance by his trial counsel. He did not specifically assert that
the failure to object to the Allen charge was ineffective; however,
the State has not raised failure-to-exhaust as a defense to this
claim of ineffective assistance. Therefore, it can be considered.
C-7
petitioner must show that counsel’s performance was
deficient and that it prejudiced petitioner’s case. Strick-
land v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984).
The Court believes that the failure of petitioner’s trial
counsel to object to the challenged language in the Allen
charge was deficient performance. The previous Mem-
orandum and Recommendation discusses the fact that the
same language which appears in petitioner's Allen charge
was held to be erroneous by both state and federal courts
10 years before petitioner’s February, 1987 trial. The
State, in this case, acknowledges that the language has
been “expressly disapproved.” As noted in the Order of
January 25, 1993, this Court has already held, in the
previous Memorandum and Recommendation, that peti-
tioner was prejudiced by the use of the offending lan-
guage. Trial counsel was ineffective as regards
submission of the Allen charge, thus cause for procedural
default has been shown. The existence of cause and preju-
dice permits consideration of the Allen charge issue,
despite procedural default.
Recommendation
It is, therefore, the recommendation of the Magistrate
Judge that the State’s procedural default defense be
rejected.
See Schouest v. Whitley, 927 F.2d 205, 209 n.4 (5th Cir. 1991). In
any event, the state court’s rejection of the Allen charge claim on
its merits makes exhaustion of the ineffective assistance claim
futile. See Deters v. Collins, No. 91-6066, 1993 WL 46564 at *8 n.16
(5th Cir. March 11, 1993).
C-8
Instructions for Service and
Notice of Right to Appeal/Object
The United States District Clerk shall serve a copy of
this Memorandum and Recommendation on all parties by
mailing a copy to each of them by Certified Mail, Return
Receipt Requested. Pursuant to Title 28 U.S.C. Section
636(b)(1), any party who desires to object to this report
must serve and file written objections to the Memoran-
dum and Recommendation within 10 days after being
served with a copy unless this time period is modified by
the District Court. A party filing objections must speci-
fically identify those findings, conclusions or recommen-
dations to which objections are being made and the basis
for such objections; the District Court need not consider
frivolous, conclusive or general objections. Such party
shall file the objections with the clerk of the court, and serve
the objections on the Magistrate Judge and on all other parties.
A party’s failure to file such objections to the proposed
findings, conclusions and recommendations contained in
this report shall bar the party from a de novo determina-
tion by the District Court. Nettles v. Wainwright, 677 F.2d
404, 410 (5th Cir. 1982). See Thomas v. Am, 474 U.S. 140,
150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Addi-
tionally, any failure to file written objections to the pro-
posed findings, conclusions and recommendations
contained in this Memorandum and Recommendation
within 10 days after being served with a copy shall bar
the aggrieved party from appealing the factual findings
of the Magistrate Judge that are accepted or adopted by
C-9
the District Court, except upon grounds of plain error or
manifest injustice. Nettles, 677 F.2d at 419.
SIGNED this 16th day of March, 1993.
/s/ John W. Primomo
JOHN W. PRIMOMO
United States
Magistrate Judge
D-1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL J. BOYD, ”
Petitioner, ;
v. . SA-92-CA-497
JAMES A. COLLINS, et al.,
Respondent. .
ORDER
(Filed Jul. 27, 1993)
On this day came on to be considered by the Court
the petition for writ of habeas corpus filed by petitioner
pursuant to 28 U.S.C. § 2254. Also under consideration by
the Court are the Memoranda and Recommendations of
United States Magistrate John W. Primomo, to which
objections have been filed. After having carefully
reviewed the record and having made a de novo deter-
mination as to those matters to which petitioner objects,
the court hereby ADOPTS the Magistrate Judge’s Mem-
oranda and Recommendations.
It is therefore ORDERED that the petitioner’s appli-
cation for writ of habeas corpus be and hereby is
GRANTED. Petitioner’s state court conviction is hereby
VACATED.
So ORDERED this 27th day of July, 1993.
/s/ H. F. Garcia
H. F. Garcia
United States District Judge
E-1
Court of Appeals
Fourth Supreme Judicial District of Texas
San Antonio
LEER ERERAREEE ARES AEA E EEE EE EE AREER EEE EEE E EE EE EE EEE EEE EE EOE E EAE E EASES
OPINION
Appeal No. 04-87-00139-CR
Michael J. BOYD,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 226th District Court of Bexar County
Trial Court No. 86-CR-3935-A
Honorable Ted Butler, Judge Presiding
Opinion by: Shirley W. Butts, Associate justice
Sitting: Shirley W. Butts, Associate Justice
Antonio G. Cantu, Associate Justice
Blair Reeves, Associate Justice
Delivered and filed: February 17, 1988
AFFIRMED
Appellant was tried by a jury and found guilty of the
offense of aggravated sexual assault as a repeat offender.
Punishment was assessed at life imprisonment.
Four points of error are raised: First, the erroneously
admitted hearsay testimony of a police officer constitut-
ing “outcry” went beyond the mere fact that a sexual
assault occurred. Second, the trial court erroneously
denied appellant’s motion for mistrial after the prosecu-
tor injected new and harmful facts unsupported by the
record. Third, the trial court erred in giving an Allen
E-2
charge to the jury after it announced it was unable to
render a unanimous verdict. Fourth, the trial court erred
in not charging the jury on the law of parole pursuant to
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a).
The complainant was assaulted as she approached
the restroom of an Exxon gas station in San Antonio. The
attacker displayed a gun, ripped her clothes, raped her
and beat her, then escaped in an automobile with another
person. Appellant was arrested shortly thereafter and
identified by complainant as the one who assaulted her:
In addition, blood found on appellant’s shirt matched the
blood type of the complainant.
Appellant first argues that the “outcry” testimony
went beyond the mere fact a complaint was made. The
evidence showed that Officer Noah Hernandez of the San
Antonio Police Department responded to a call of a “rape
in progress” on August 14, 1986. When he arrived, blood
was still “flowing freely” from cuts on complainant's
face. Hernandez testified he arrived eight or nine minutes
after the dispatch. He stated the complainant was
“almost” in shock and hysterical but responded to his
questions.
The initial objection to any testimony regarding these
statements was overruled on the basis that the initial
complaint was admissible as outcry. King v. State, 631
S.W.2d 486, 491 (Tex. Crim. App. 1982), cert. denied, 459
U.S. 928, 103 S. Ct. 238, 74 L. Ed. 188. After the objection
was overruled, the State continued:
Q: Officer, once again, I repeat, what did
she say to you?
E-3
A: She reported to me that she had just
been raped and beaten.
Q: Did she say anything else to you?
A: No, sir.
Q: Was she able to give you a physical
description of any suspect?
A: Yes, sit.
Q: Can you tell up the description that she
gave you?
A: She had just been raped and beaten by
a Negro male.
Q: Can you tell us, did she give you any
heights, weights, dimensions, if any?
A: A Negro male, dark complexion, slen-
der build, a goatee.
Q: Anything else?
And collar-length Afro style cut.
Anything else Officer?
ye ef
No, sir.
Q: Did she say anything about how she
was raped?
A: She was forced to go behind -
[Defense Counsel]: Objection, Your Honor,
this is hearsay . . .
The objection was sustained.
To be timely, an objection must be made as soon as
the reason for objection becomes apparent. Thompson v.
E-4
State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert.
denied, 474 U.S. 865. The objection here went to any
details of the rape related to Hernandez by complainant.
That objection was sustained, and appellant received the
relief he requested.
The objection following reference to “forced to go
behind ... ” and was not directed immediately to the
description testimony. See Thompson v. State, supra, at 635.
Moreover, appellant was not identified; rather, a descrip-
tion was given. Compare, Vera v. State, 709 S.W.2d 681
(Tex. App. - San Antonio 1986, pet. ref’d.).
In addition, although the prosecutor may have stated
there was no reliance on res gestae as the basis for admis-
sion of the description testimony, this court is not bound
by that assertion. Complainant was in hysterics and was
calmed down by the officer enough to describe her
assailant. Her statements were made within minutes of
the rape. Therefore, if the description of the attacker was
not part of the “bare facts of the complaint,” it was part
of the res gestae of the offense. It is notable that when EMS
officers treated the complainant, she began screaming
and displayed marked hysterics. She was lying in the
ambulance when officers brought appellant before her for
identification purposes.
Testimony of a witness, who relates statements as
told to him by a rape victim within a very short period
after the offense occurred, is admissible on the grounds
that such statements are either “confined to the bare facts
of the complaint” or “res gestae” of the offense. Hanner v.
State, 572 S.W.2d 702, 706 (Tex. Crim. App. 1978), cert.
denied, 440 U.S. 961. The first point of error is overruled.
E-5
Appellant next complains the prosecutor injected into
the case new and harmful facts, unsupported by the
record, specifically: that potential witness Bolden had not
testified because she was hospitalized. Complainant testi-
fied that she was with two others, Felicia Mayo and
Annette Bolden, at the Exxon station where she was
attacked. Mayo testified as a State’s witness. Bolden did
not, and her absence was not accounted for during the
evidentiary portion of the trial.
In argument, appellant’s counsel referred to Bolden’s
absence, suggesting that possibly she was not called
because “she is not going to go along with [complain-
ant] . . . [and] Felicia.” The State did not object. In
rebuttal, however, the prosecutor stated to the jury “Mr.
Angelini asked where’s Annette Bolden. She’s in the hos-
pital. That’s where she is.” Appellant’s objection that this
was outside the record was sustained. The jury was
instructed to disregard, but appellant’s motion for mis-
trial was overruled.
Even if a prosecutor’s comment in final argument is
improper, an instruction to disregard will usually be suf-
ficient to cure the error. Logan v. State, 698 S.W.2d 680, 683
(Tex. Crim. App. 1985). The error will not be cured only
in “extreme cases in which the new evidence is of an
obviously harmful nature or the the [sic] argument is so
inflammatory that its harmful effects may not be cured by
instruction.” Pimentel v. State, 710 S.W.2d 764, 774 (Tex.
App. — San Antonio 1986, pet. ref’d).
Appellant argues that in this case the prosecuting
attorney made use of jury argument to get before the jury
evidence which is outside the record. Appellant argues
E-6
that this is the unsworn testimony of the attorney and
amounts to error. Jordan v. State, 646 S.W.2d 946, 948 (Tex.
Crim. App. 1983).
He relies on several cases which may be distin-
guished. In McNaulty v. State, 135 S.W.2d 987 (Tex. Crim.
App. 1939), the prosecutor argued that the State “could
have put on many more witnesses that would have testi-
fied to the same facts that the witnesses testified to that
we did put on.” Id. at 989. In another case, the prosecutor
erred in arguing it could have subpoenaed a “long list of
witnesses .. . from whom he could have proved the good
reputation of deceased, but didn’t think it necessary.”
Dowd v. State, 284 S.W. 592, 593 (Tex. Crim. App. 1926).
The prosecutor’s argument that there were other wit-
nesses adverse to the defendant but who had not yet
testified was clearly error in Johnson v. State, 649 S.W.2d
111, 116 (Tex. App. - San Antonio (1983), aff'd, 662 S.W.2d
368 (Tex. Crim. App. 1984). In the case at hand, the
prosecutor offered no comment as to what the probable
testimony of the missing witness might be. We cannot
agree with appellant’s contention that the prosecutor’s
remark that witness Bolden was in the hospital was calcu-
lated to inflame the minds of the jury. Neither do we find
it to be harmful or prejudicial to appellant. While the
prosecutor may have erred in going outside the record,
we do not find the error harmful. The error was cured by
the court’s instruction to disregard. Logan, supra, at 682;
Pimentel, supra, at 774. The motion for mistrial was cor-
rectly overruled. The second point of error is overruled.
In his third point, appellant asserts that the trial
court erred in giving the so-called Allen charge after the
jury announced it was unable to render a unanimous
E-7
verdict. The jury heard three days of evidence in this case
and began deliberations on the morning of the fourth day.
After about five hours of deliberations, the jury foreman
sent the judge the following note: “It is with deep regret
we, the jury, cannot reach a unanimous decision in this
case.” After receiving this note the trial court gave the
jury the following additional charge:
Members of the jury, in response to the
information you have given me, I give you the
following instructions. And I want you to pay
close attention to what I tell you.
You should endeavor to reach an agreement
if at all possible. Some jury at some time will
have to decide this question.
This issue has been tried out very ably by
both sides, who have presented this evidence to
you and the decision has to be reached by a jury.
You are that jury. And it seems to me that
you ought to make every effort to arrive at a
unanimous verdict and to reach a conclusion.
Of course, the verdict of the jury should
represent the opinion of each individual juror.
But that does not mean that the opinion may not
be changed by a conference in the jury room.
The very object of the jury system is to
secure unanimity by comparison of views and
by argument among the jurors, themselves. Each
juror should listen with deference to the argu-
ments of the other jurors and with a distrust of
his own judgment if he finds that a large major-
ity of the jury takes a different view of the case
from what he, himself, takes.
E-8
No juror should go to the jury room with a
blind determination that the verdict should rep-
resent his opinion of the case at that moment, or
that he should close his ears to the arguments of
other jurors who are equally honest and intel-
ligent as himself.
Accordingly, although your verdict must be
the verdict of each individual juror and not a
mere acquiescence in the conclusion of your
fellow jurors, the Court instructs you, however,
that you should examine what has been submit-
ted to you with an open mind and with candor
and proper regard and deference to the opinion
of each other.
It is your duty to decide the case if you can
conscientiously do so. You should listen to each
other’s arguments with the disposition to be
convinced.
If much the larger number favors one side
or the other, the dissenting juror should con-
sider whether, in the light of the opinions that
are expressed by the other jurors in the jury
room, he is not in error as to his views.
I want you to go back to the jury room and
continue your deliberations. Discuss the matter
among yourselves in a friendly spirit and
endeavor to agree upon a verdict.
Before the charge was read to the jurors, defense
counsel objected:
The paragraph where it says, “each juror should
— each juror shall listen with deference to the
argument of the other jurors and with the dis-
trust of his judgment if he finds a large majority
E-9
of the jury takes a different view of the case
from what he himself takes.”
We feel like that is giving the jury the idea that
the Court believes that the verdict should be -
go along with what the majority feels. That the
individual juror should go along with what the
majority of what the other jurors feel.
The same thing with the paragraph that says,
“you should listen to each other’s arguments
with the disposition to be convinced. If the
much larger number favor one side or the other,
the dissenting juror should consider whether, in
light of the opinions that are expressed by the
other jurors in the jury room, he is not in error
as to his views.”
That is telling the juror that if he is not in the
majority, that he may be in error in his views.
And that’s giving that juror the impression that
the Court is making that judgment of that juror.
These objections were overruled.
Appellant now contends that specific language in the
court’s charge, not found in the original Allen charge,
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896), was a misstatement of the law. Further, this
relates to the court’s instruction to the jury that “a deci-
sion has to be reached by a jury. You are that jury... ”
Defense counsel objected to specific language in the
charge, but not to the the [sic] language complained of on
appeal. To preserve error a trial objection to the charge
must distinctly specify each ground of objection. TEX.
CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.
1988). Objections to the charge must be made before it is
E-10
read to the jury, and must specify every ground of objec-
tion. Blackwell v. State, 294 S.W. 852, 854-55 (Tex. Crim.
App. 1927). The error asserting improper instruction is
based on a claim which was not presented as a timely
objection to the trial court’s charge. Barber v. State, 737
S.W.2d 824, 835 (Tex. Crim. App. 1987); Paul v. State, 544
S.W.2d 668, 672 (Tex. Crim. App. 1976); Pittman v. State,
434 S.W.2d 352, 359-360 (Tex. Crim. App. 1968). Given the
objection made on appeal, the court would have had an
opportunity to delete the complained of language.
A significant deviation from the standard Allen
charge may constitute grounds for reversal if that devia-
tion has a coercive effect on the jury. United States v.
Amaya, 509 F.2d 8, 13 (5th Cir. 1975). In this case the
language did not have such a coercive effect. “It did not
threaten the jury, set a deadline, or coerce them to set
aside their scruples and arrive at a verdict.” United States
v. Anderson, 679 F.2d 1199, 1203-04 (5th Cir. 1982). While
informing the jury that they were the jury that had to
reach a decision, the court had also informed them that
“some jury, sometime, will have to decide this question.”
The court further informed the jurors that they should
reach a decision “if at all possible,” not that they must
reach a decision.
It has been held that when the charge is not coercive
on its face, the appellant must show either that the charge
is likely to cause jury misconduct or that jury misconduct,
in fact, has occurred. Davis v. State, 709 S.W.2d 288, 291
(Tex. App. - Corpus Christi 1986, pet. ref’d), cert. denied,
107 S. Ct. 2198, citing Calicult v. State, 503 S.W.2d 574, 576
n.3 (Tex. Crim. App. 1974).
E-11
Appellant argues that the Allen charge instructs the
jury to consider the positions and views of the majority
and this is a consideration irrelevant to the issue of guilt.
Further, he contends that the charge in this case was a
misstatement of the law, coercive, and encouraged the
jury to consider extraneous matters irrelevant to guilt and
that therefore appellant was denied his right to due pro-
cess and due course of law as provided by the federal and
state constitutions. He further argues that these questions
received only cursory treatment in Arrevalo v. State, 489
S.W.2d 569 (Tex. Crim. App. 1973). It is appellant’s posi-
tion that this court should overrule the precedent sup-
porting the Allen charge.
The use of an Allen charge has been reviewed and
approved in Texas case law. Stanton v. State, 535 S.W.2d
182 (Tex. Crim. App. 1976); Arrevalo v. State, 489 S.W.2d
569 (Tex. Crim. App. 1973); Davis v. State, 709 S.W.2d 288
(Tex. App. - Corpus Christi 1986, pet. ref’d), cert. denied,
107 S. Ct. 2198; Ray v. State, 649 S.W.2d 142 (Tex. App. -
Fort Worth 1983, pet. ref’d). We decline to disapprove its
use under the circumstances of this case. The third point
is overruled.
Finally, appellant argues the jury should have been
instructed on the law of parole pursuant to TEX. CODE
CRIM. PROC. ANN. art. 37.07, § 4(a). The court
instructed the jury not to “discuss how long the defen-
dant would be required to serve in order to satisfy the
sentence imposed.” Appellant did not object to the
court’s charge on punishment. In the absence of objec-
tion, an error in the charge will require reversal only if
the error is so egregious and created such harm that the
accused was denied a fair trial. Almanza v. State, 686
E-12
S.W.2d 157 (Tex. Crim. App. 1984). Appellant contends
that he suffered egregious harm because the jury was not
informed that he would have to serve at least one-third
(or twenty years) before becoming eligible for parole.
Appellant claims that if the jury had been so informed,
his sentence would likely have been less than the life
term imposed.
The courts addressing this issue have uniformly held
that the failure to give this kind of instruction does not
constitute fundamental error.’ Hyde v. State, supra; Cortez
v. State, __ S.W.2d ___ (Tex. App. - Dallas No.
05-86-1165-CR, July 28, 1987); Henry v. State, 732 S.W.2d
443 (Tex. App. - Beaumont 1987, no pet.); Estes v. State,
723 S.W.2d 753 (Tex. App. - Austin 1986, no pet.). We
cannot say that failure to so charge the jury amounted to
Almanza fundamental error. The point of error is over-
ruled.
The judgment is affirmed.
SHIRLEY W. BUTTS,
Associate Justice
DO NOT PUBLISH.
1 The Texas Court of Criminal Appeals subsequently ruled
that article 37.07 § 4(a), the instruction statute, is unconstitu-
tional. Rose v. State, ___ S.W.2d ___, No. 193-87 (Tex. Crim. App.
Nov. 12, 1987) (not yet reported).
F-1
NO. 86-CR-3935-A-W1
EX PARTE § IN THE DISTRICT COURT
- 226TH DISTRICT COURT
MICHAEL J. BOYD § BEXAR COUNTY, TEXAS
ORDER
Michael J. Boyd has filed a pro se application for post
conviction writ of habeas corpus under the provisions of
11.07 C.C.P. collaterally attacking his conviction in cause
number 86-CR-3935.
HISTORY OF THE CASE
Applicant was convicted of committing the offense of
Aggravated Sexual Assault on February 13, 1987. Punish-
ment was assessed at life imprisonment in the Texas
Department of Corrections. The Court of Appeals for the
Fourth Supreme Judicial District affirmed Applicant's
conviction with mandate issued on June 13, 1988. Appli-
cant filed this petition for writ of habeas corpus on May
17, 1990.
ALLEGATIONS OF APPLICANT AND
FINDINGS OF FACT
A claim of insufficient evidence cannot be raised in a
writ of habeas corpus proceeding. Ex Parte Easter, 615
S.W.2d 719 (Tex. Cr. App. 1981). Only a claim of no
evidence will be considered in a writ of habeas corpus
proceeding therefore, Applicant's first ground of error is
without merit. Ex Parte Moffett, 542 S.W.2d 184 (Tex. Cr.
App. 1976).
F-2
Applicant alleges, in his second ground of error, that
the jury instructions relieved the State of its burden of
proof by failing to define “criminal episode.”
“If the application portion of the jury charge instructs
the jury with respect to each element of the offense and
the charge does not authorize condition on proof of less
than all of the required elements constituting the
offenses, no fundamental error will exist. Lewis v. State,
656 S.W.2d 472 (Tex. Crim. App. 1983). The portion of the
charge to be examined in determining whether it is fun-
damentally defective for improper or omitted definitions
is in the abstract portion of the charge. Lewis v. State,
supra.”
“The charge given did not authorize a finding of
guilty without requiring the jury to find all of the requi-
site elements of the offense charged. (See Attachment)
The fact that the charge failed to define “criminal epi-
sode” in the charge’s abstract did not relieve the State of
its burden of proof since an element of the offense is not
omitted when the trial court applies the law to the facts of
the case in its charge, which it did. Rohlfing v. State, 612
S.W. 2d 598 (Tex. Crim. App. 1981). Specifically defined
words do not need to be defined in a jury charge if the
jury could not have been misled by the court’s failure to
define the word(s).” Olveda v. State, 625 S.W.2d 13 (Tex.
Crim. App. - San Antonio, 1981) (reversed on other
grounds); 650 S.W.2d 408 (Tex. Crim. App. 1983).
Applicant’s third, fourth, fifth and sixth grounds of
error were previously raised on direct appeal. (See
Attachment) They cannot form the basis of relief in an
F-3
application for post-conviction writ of habeas corpus. Ex
Parte Acosta, 672 S.W.2d 470 (Tex. Crim. App. 1984).
Applicant alleges, as his seventh ground of error, that
he was denied the sixth amendment right to effective
assistance of counsel. Allegations of ineffective assistance
of counsel must be firmly founded in the record, and the
burden is on the Applicant to demonstrate the ineffective-
ness. Johnson v. State, 614 S.W.2d 148 (Tex. Crim. App.
1981); Simmons v. State, 594 S.W.2d 462 (Tex. Crim. App.
1980). Applicant has failed to meet this burden.
Applicant alleges, as his final ground of relief, that
the jury charge defined “serious bodily injury” thereby
allowing the jury “to find Applicant guilty of rape on a
theory not alleged in the indictment.” Both the indict-
ment and the charge are identical setting out all the
elements of Aggravated Sexual Assault. This ground of
error is without. merit.
CONCLUSION OF LAW
The Applicant has not demonstrated any grounds
which would entitle him to relief. Therefore, this Court
recommends that the application for writ of habeas
corpus be denied.
ORDERS
The District Clerk of Bexar County, Texas, is hereby
ordered to prepare a copy of this document, together
with any attachments and forward the same to the fol-
lowing persons by mail or the most practical means:
F-4
a. The Court of Criminal Appeals
Austin, Texas 78711
b. Mr. Fred G. Rodriguez
Criminal District Attorney
Bexar County Justice Center
Bexar County, Texas 78205
c. The Office of Jim Mattox
Attorney General Of Texas
Enforcement Division
Capitol Station
Austin, Texas 78711
d. Michael J. Boyd
Route 3, Box 59
Rosharon, Texas 77583
SIGNED, ORDERED and DECREED this 20 day of
June, A.D., 1990.
/s/
JUDGE PRESIDING
ia Ne ae tat
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