# Petition for Writ of Certiorari — Boyd v. Scott > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1512%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1111 ## Text ~ Supr: me Court, \ , 3 . \ I i | # io D } ’ ) pee : fe, 161 8 MAR 30 199g GFHCE-OF-THE-CLERK In The Supreme Court of the United States October Term, 1994 ¢ MICHAEL J. BOYD, u.S. ; ~ 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 : 2 : : ; i ; iil 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 Soh a, A perked bane Sanus oeendenaes 2 ee ee SS nk a veka bide ae eae ewe nee ek es 2 Sh os ee a 2 errr rere 2 EE AE RR onan e van bas ¥acesew esd rascudebeusss 2.3 p Ey Sekt 2s err errr Sere rer er re TT 2 / BS kh, 2 Se eer rr. Sere re rrr e ree ry 4 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 * a * * + . . ~ * © * 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 ov [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1512%3A1. Public record. Not legal advice.