Barnett v. State (2006)
In Barnett v. State, 189 S.W.3d 272 (Tex.Crim.App. 2006), the issue before the Court of Criminal Appeals was whether a defendant forfeits his complaint on appeal that the trial court gave the jury a coercive oral Allen charge if he failed to object to the court's earlier improper polling of the jury. Barnett, 189 S.W.3d at 273.
The trial judge told the two jurors who were holding out that "we do have a problem with both of you" and asked whether they could change their votes. Id., 189 S.W.3d at 274.
After the trial judge sent the jury back to deliberate, defense counsel moved for a mistrial. Id., 189 S.W.3d at 275.
The Court of Criminal Appeals held that the defendant did not waive error by failing to object to the improper polling. Id. at 278.
Further, it concluded that the defendant was excused from objecting to the trial court's statement and requesting an instruction to disregard because that could not eliminate the harm that had already been done. Id.
The court went on to affirm the court of appeals' decision which held that the trial court abused its discretion by denying the defendant's motion for a mistrial. Id. at 278.
In Barnett v. State, the jury informed the court that it had reached a unanimous verdict of not guilty on two counts of aggravated sexual assault, but during the trial court's poll of the jury, the jurors were actually split eleven to one in favor of not guilty on count one and eleven to one in favor of guilty on count two. Barnett, 189 S.W.3d at 274.
A short recess was taken so that the defendant could form any objections, but when the recess concluded, the defendant did not make any objections. Id.
After the trial court polled the jury again with the same results, he singled out two jurors, told them that we "have a problem with both of you," asked whether they could reconsider their votes, and then told the jury to continue with deliberations. Id. at 274-75.
When the jury left the courtroom, the trial court noted that he could declare a mistrial if the jury failed to reach a unanimous verdict, and the defendant asked for a mistrial, claiming that the jurors may compromise their verdict in order to achieve a result. Id. at 275.
The trial court noted that if the jury could not reach a verdict that evening, he would reconsider granting a mistrial. Id.
Twenty minutes later, the jury sent a note indicating that a unanimous verdict on both counts were reached. Id. The defendant then reurged his motion for mistrial, which was denied. Id.
On appeal, the defendant did not complain of the polling procedure, that is, that the court went beyond the scope of article 37.05 by asking how each juror voted, but rather of the content of the trial court's comments to the jury, that is, whether certain jurors could change their verdict with further deliberations. Id. at 277.
The Court of Criminal Appeals noted that if the complaint had been about the polling procedure, the defendant was required to object to the same, but since the complaint focused on the content of the trial court's comments, the defendant did not forfeit his right to complain as he "could not reasonably have foreseen that the trial court would tell the two hold-out jurors that 'we do have a problem with both of you' and ask them if they would be able to change their vote." Id. at 278.