Chapter 10
Other Special Instructions
10.1 Instruction—Allen Charge
All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict.
If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the court to declare a mistrial and discharge the jury. The case will still be pending, and it is reasonable to assume that it will be tried again before another jury at some future time. Any such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the evidence that has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you, and there is no reason to hope the next jury will find these questions any easier to decide than you have found them.
Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors.
During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.
With this additional instruction, you are requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience. Do not do violence to your conscience, but continue deliberating.
Comment
The above Allen charge is recommended by the Committee for use in criminal cases. For a sample instruction for use in civil cases, see “Instructions to Deadlocked Jury” in each volume of the civil Pattern Jury Charges series (for instance, PJC 1.9 in Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers’ Compensation). That instruction is modeled on language discussed by the Texas Supreme Court in Stevens v. Travelers Insurance Co., 563 S.W.2d 223, 230 (Tex. 1978).
Background. An Allen charge instructs a deadlocked jury to continue deliberating to reach a verdict if the jurors can conscientiously do so and is usually given in response to a specific request from the jury. West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003, pet. ref’d); Jackson v. State, 753 S.W.2d 706, 712 (Tex. App.—San Antonio 1988, pet. ref’d). See Allen v. United States, 164 U.S. 492, 501 (1896). This supplemental charge “reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve.” Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006). Both the United States Supreme Court and the Texas Court of Criminal Appeals have sanctioned the use of an Allen charge. See Allen, 164 U.S. at 501–02; Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996).
The Supreme Court initially approved five “elements” of an Allen charge: (1) that in a large proportion of cases, absolute certainty could not be expected; (2) that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, jurors should examine the question submitted with “a proper regard and deference to the opinions of each other”; (3) that it was the jurors’ duty to decide the case if they could conscientiously do so; (4) that jurors should listen, with a disposition to be convinced, to each other’s arguments; and (5) that, “if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” Allen, 164 U.S. at 501.
Allen was decided as a matter of the Supreme Court’s supervisory power over the federal courts and not as a matter of constitutional law. See Allen, 164 U.S. at 501–02; Tucker v. Catoe, 221 F.3d 600, 609 n.5 (4th Cir. 2000). Thus, a trial court will generally not err by failing to submit an Allen charge.
The Danger of Coercion. Modern courts have repeatedly expressed concern that the jury instructions in Allen v. United States may interfere with jury deliberations and coerce a verdict. The Supreme Court has rejected any use of coercion in the charge. See Lowenfield v. Phelps, 484 U.S. 231, 237–38; Jenkins v. United States, 380 U.S. 445, 446 (1965) (“[T]he principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration.”). The Fifth Circuit court of appeals has followed suit:
There is no justification whatever for its coercive use. The jury system rests in good part on the assumption that the jurors should deliberate patiently and long, if necessary, and arrive at a verdict—if, but only if, they can do so conscientiously. It is improper for the court to interfere with the jury by pressuring a minority of the jurors to sacrifice their conscientious scruples for the sake of reaching agreement.
Green v. United States, 309 F.2d 852, 853–54 (5th Cir. 1962). In civil cases, the Texas Supreme Court has also disapproved any use of coercion and has rejected language directed at minority jurors. See Stevens v. Travelers Insurance Co., 563 S.W.2d 223, 228 (Tex. 1978).
Improper coercion may arise from the text of the charge itself or from the circumstances in which the charge is given. Howard, 941 S.W.2d at 123 (citing Lowenfield, 484 U.S. at 237). An Allen charge may be facially coercive if it conveys the court’s opinion on the case or pressures jurors into reaching a particular verdict. Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973); West, 121 S.W.3d at 107–08. It should not tell the jury that one side or the other possesses superior judgment, nor tell one side to distrust its judgment. See West, 121 S.W.3d at 109.
The context in which an Allen charge is given may render an otherwise facially proper charge coercive. For example, if the jury voluntarily offers a polling of the members, subsequently giving an Allen charge is likely to be found not coercive. However, if the trial court sua sponte polls the jury and then issues an Allen charge, the context may render the charge itself coercive even if by its plain language it is not. CompareHoward, 941 S.W.2d at 123–24, withBarnett v. State, 161 S.W.3d 128, 134–35 (Tex. App.—Fort Worth 2005), aff’d, 189 S.W.3d 272. Thus, trial courts should refrain from polling the jury or singling out jurors. In the event that a jury offers polling information unsolicited, the Committee recommends trial courts exercise caution, lest a jury takes the Allen charge as a statement of the trial court’s opinion of the case.
The Committee recommends that trial courts and practitioners follow the trend to omit coercive elements of the charge, especially those directed at minority viewpoints in the jury. See Lowenfield, 484 U.S. at 237; Howard, 941 S.W.2d at 123; Barnett, 189 S.W.3d at 277 n.13. At most, a charge that “suggests that all jurors reevaluate their opinions in the face of disparate viewpoints cannot be said to be coercive on its face.” Howard, 941 S.W.2d at 123. Nevertheless, the Committee believes the better practice to be the omission of coercive elements, and a review of caselaw indicates that a trial court will not be reversed by following this path. The pattern charge reflects this advice.
Procedure. An Allen charge should be given in writing and in open court, and it should be first submitted to the parties for objections and exceptions. Verret v. State, 470 S.W.2d 883, 887 (Tex. Crim. App. 1971). See Tex. Code Crim. Proc. art. 36.27. An oral communication alone would be improper. Verret, 470 S.W.2d at 887.
A trial court does not need to wait until the jury indicates it is deadlocked to give an Allen charge. See Loving v. State, 947 S.W.2d 615 (Tex. App.—Austin 1997, no pet.). Some authorities believe that giving the Allen charge as part of the court’s general charge will inoculate against possible coercion. See Loving, 947 S.W.2d at 619; See also American Bar Association, Criminal Justice Section, Criminal Justice Standards Committee, Standard 15-5.4(a) [hereinafter ABA Standard]. Then, if the jury is unable to agree, repetition of the Allen language already given would be appropriate. See ABA Standard 15-5.4(b). This approach is not without its critics. See, e.g., Green, 309 F.2d at 853–54. The Texas Court of Criminal Appeals has yet to opine on this split. See Henderson v. State, 593 S.W.2d 954, 957 (Tex. Crim. App. 1980). The Committee recommends not including Allen language in the general charge.
An Allen charge may be used at the guilt–innocence phase and at the punishment phase of a trial. See Deaton v. State, No. 03-08-00455-CR, 2009 WL 1811068, at *8–11 (Tex. App.—Austin June 26, 2009, pet. ref’d) (not designated for publication); Hairston v. State, No. 14-04-01016-CR, 2006 WL 1026880, at *2–3 (Tex. App.—Houston [14th Dist.] Apr. 20, 2006, pet. ref’d) (not designated for publication). If given at punishment, and if the charge mentions the possibility of mistrial, the charge need not specify that the mistrial would apply to the punishment stage only, though it might be better practice to do so. Draper v. State, 335 S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Texas law imposes no time limits on the amount of time a jury may deliberate, when an Allen charge may be given, or when mistrial may be declared, absent an abuse of discretion. Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999). It is not error to give an Allen charge before a jury has unequivocally stated it is deadlocked. Olvera v. State, No. 13-13-00464-CR, 2014 Tex. App. LEXIS 7764, at *5 (Tex. App.—Corpus Christi–Edinburg July 17, 2014, no pet.) (not designated for publication); Loving, 947 S.W.2d at 620; see Black v. State, No. 05-10-01558-CR, 2012 WL 206501, at *2 (Tex. App.—Dallas Jan. 25, 2012, pet. ref’d) (not designated for publication). Thus, a judge can generally give no Allen charge, one Allen charge, or several, and trial courts will not err by refusing to give an Allen charge.