Jabari Britt v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 26, 2007

Affirmed and Memorandum Opinion filed April 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00131-CR

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JABARI BRITT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1020668

M E M O R A N D U M   O P I N I O N

A jury found appellant, Jabari Britt, guilty of evading arrest with a motor vehicle and assessed punishment at incarceration for one year in the Texas Department of Criminal Justice, State Jail Division, probated for five years.  See Tex. Penal Code Ann. ' 38.04 (Vernon 2003).  In five issues, appellant challenges the legal and factual sufficiency of the evidence, the effectiveness of his trial counsel=s assistance, and the trial court=s denial of his motion for a new trial. We affirm.

Factual and Procedural Background

On March 21, 2005, Houston Metro Police Officer Chris Obenland was patrolling the area along the light rail corridor, south of downtown Houston.  At approximately 11:39 p.m., Obenland was issuing a citation to a motorist near the intersection of Main St. and Wheeler St.  Obenland observed appellant driving a maroon Nissan Altima northbound on Main St.  At least one passenger was riding in appellant=s vehicle, and the front windows on the vehicle were rolled down.  Obenland observed appellant making an illegal right turn onto Wheeler St.  Obenland got into his patrol car and pursued appellant=s vehicle.  The weather was clear and dry, and traffic was light. 

At appellant=s trial, Obenland testified that the emergency lights on his patrol car were turned on when he first observed appellant=s vehicle (because Obenland had just finished issuing a citation to another motorist) and remained on during the entire time he was in pursuit of appellant.  Obenland testified that his patrol car was equipped with three types of emergency lights: (1) a light bar containing bright LED lights and strobe lights mounted on top of the vehicle, (2) red and blue flashing lights mounted on the grill, and (3) Awig-wag@ high beam headlights that alternately flashed on and off to attract attention.  Obenland further testified the emergency lights are more visible at night.  Obenland turned on the patrol car=s siren near the intersection of Wheeler St. and Highway 59.

Obenland testified he pursued appellant eastbound on Wheeler St. at a speed of approximately seventy miles per hour and caught up to appellant=s vehicle near the intersection of Almeda Road. Obenland remained a safe distance behind appellant=s vehicle, approximately fifty to one hundred yards.  Obenland testified that the patrol car=s siren would have been audible to appellant at this distance, particularly since the front windows on appellant=s vehicle were rolled down.  There were no vehicles between the patrol car and appellant=s vehicle. 

Appellant continued eastbound under the Highway 288 overpass and made a sharp right turn heading southbound in the one-way northbound lanes of the Highway 288 feeder road. The operator of a northbound vehicle swerved to avoid colliding with appellant=s vehicle. Appellant then turned left onto Rosewood St. and stopped his vehicle near the intersection of Dowling St.  Obenland took appellant into custody.  Appellant did not have a driver=s license and was found to be in possession of $2,727 in cash.  The odor of marijuana was present in appellant=s vehicle, and marijuana was found in the backseat.  At the time of his arrest, appellant was on deferred adjudication community supervision for possession of marijuana. Pursuant to the terms of his community supervision, appellant was prohibited from consuming alcohol, possessing controlled substances, or associating with persons consuming alcohol or possessing controlled substances.      

Three witnesses testified for the defense: Erica Gathers, Roy Wright, and appellant.  Gathers testified she was appellant=s girlfriend and the owner of the vehicle appellant was driving.  Gathers testified that she, Wright, and appellant spent the evening playing pool at Dave & Busters, where she consumed two or three mixed drinks.  Thereafter, the three occupants of the vehicle stopped for food at a Wendy=s restaurant, and were en route to Wright=s residence when they passed through the intersection of Main St. and Wheeler St.  Gathers was sitting in the front passenger=s seat, arguing with appellant, and Wright was riding in the backseat.  Gathers testified she saw a police car as appellant turned from Main St. onto Wheeler St.  Gathers testified she did not realize they were being followed until they reached the intersection of Wheeler St. and Highway 288.  Gathers testified she first noticed the lights on the patrol car behind them when appellant turned onto the Highway 288 feeder road.  Gathers further testified that the front windows on the Nissan Altima were rolled down, but she did not hear a police siren at any point in time on the night appellant was arrested.  Gathers testified appellant stopped the vehicle Aas soon as he found a safe spot to pull over.@

Wright testified he was riding in the backseat of the vehicle, and appellant was driving to Wright=s residence when they were stopped by the police.  Wright testified he saw a police car at the intersection of Main St. and Wheeler St., but he did not realize they were being followed until he saw the patrol car behind them at the intersection of Wheeler St. and Highway 288.  When Wright saw the lights on the police car, he told appellant that the police were following them.  Wright testified that the front windows on the Nissan Altima were rolled down, but he never heard a police siren.  Wright testified appellant stopped the vehicle as soon as he realized the police were behind them.  Wright further testified that the marijuana in the vehicle belonged to him, and he was convicted of possessing the marijuana found in the vehicle. 

Appellant testified he spent the evening playing pool with Gathers and Wright at Dave & Busters, where he consumed two beers. Appellant admitted he was driving Gathers= Nissan Altima on the night of his arrest, but denied fleeing from the police.  Appellant testified he was en route to Wright=s residence when he saw Obenland conducting a traffic stop at the intersection of Main St. and Wheeler St.  Appellant was arguing with Gathers, and the front windows on the vehicle were rolled down.  Appellant admitted making an illegal right turn from Main St. onto Wheeler St.  Appellant testified he traveled eastbound on Wheeler St. and accidentally turned the wrong way on the Highway 288 feeder road. Appellant testified he intended to turn onto the southbound feeder road. However, because he was distracted by Gathers, appellant accidentally drove under the overpass and turned onto the wrong street.  After realizing he was heading the wrong way on a one-way street, appellant turned left on Rosewood St. to get off the feeder road.  Appellant testified he Anever heard any sirens@ and did not realize the police were following his vehicle until he turned on the Highway 288 feeder road.  Appellant testified that when he turned on the Highway 288 feeder road, Wright told appellant that the police were behind them and Wright had some marijuana.  Appellant testified he was not aware of the presence of marijuana in the vehicle prior to that time.  Appellant further testified he did not see the lights on the patrol car behind them until he turned onto Rosewood St., and he pulled over as soon as possible.  On cross-examination, appellant testified that at the time of his arrest he was on community supervision.  Appellant testified he did not have his driver=s license with him.  Appellant further testified that under the conditions of his community supervision, he was prohibited from driving a motor vehicle without a driver=s license, consuming alcohol, going to bars, possessing drugs, or associating with people in possession of drugs. 

The jury found appellant guilty of felony evading arrest and assessed punishment at one year incarceration, probated for five years. The trial court signed its judgment on December 9, 2005.  This appeal followed.

Discussion

I. The Evidence is Legally Sufficient

In his first issue, appellant contends the evidence is legally insufficient to sustain the jury=s finding that he evaded arrest in a motor vehicle.  In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). To be found guilty of evading arrest, the jury had to find beyond a reasonable doubt that appellant intentionally fled from a person he knew was a peace officer attempting lawfully to arrest or detain him.  See Tex. Penal Code Ann. ' 38.04(a) (Vernon 2003). Intent may be inferred from the words and conduct of the accused and the surrounding circumstances.  Guevara v. State, 152 S.W.3d 45, 49B50 (Tex. Crim. App. 2004).  In this case, the jury heard evidence that appellant drove his vehicle a significant distance with a police car in pursuit.  Obenland testified he caught up to appellant=s vehicle near the intersection of Wheeler St. and Almeda St., and, by that time, the emergency lights and siren on the police vehicle would have been noticeable to appellant.  Appellant continued traveling on Wheeler St. and made two turns, including one high-speed turn going the wrong way on a one-way street.  The jury heard testimony that marijuana was found in appellant=s vehicle, and appellant admitted under oath that he committed a traffic violation, he did not have his driver=s license with him, and he had been drinking alcohol.

When viewed in the light most favorable to the verdict, we hold that a rational trier of fact could have concluded from the evidence presented that appellant intentionally fled from a person he knew was a peace officer attempting lawfully to arrest or detain him.  Accordingly, the evidence is legally sufficient to support the verdict. 

 II. The Evidence is Factually Sufficient

In his second issue, appellant contends there is factually insufficient evidence to sustain the jury=s verdict.  In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id. at 731.  First, when considered by itself, evidence supporting the verdict may be so weak that the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant contends the jury=s verdict is undermined by his own testimony and the testimony of Wright and Gathers. Specifically, appellant argues the evidence is factually insufficient because all three occupants of appellant=s vehicle testified they were not aware that they were being followed by police until appellant turned onto Rosewood St., and appellant stopped the vehicle as soon as possible thereafter.  The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In addition, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc). Thus, the jury was entitled to believe Obenland=s testimony and make reasonable inferences therefrom, regardless of conflicting testimony offered by appellant, Wright, and Gathers.  See id.

The verdict is neither clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. Rather, the verdict reflects the jury=s decision to believe some of the witnesses and not others, which is its role.  The evidence is not factually insufficient.  Appellant=s second issue is overruled.

 III. Appellant Did Not Receive Ineffective Assistance of Counsel

In his third issue, appellant contends he received ineffective assistance of counsel at trial.  In reviewing claims of ineffective assistance of counsel, we apply a two prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  

When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814.  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Appellant filed a motion for new trial on December 16, 2005, and the trial court conducted a hearing on appellant=s motion on February 13, 2006.  Appellant made no allegations of ineffective assistance of counsel in his motion or at the hearing. 

On appeal, appellant makes five arguments in support of his claim of ineffective assistance of counsel.  In his first argument, appellant contends he received ineffective assistance because his counsel did not make an opening statement.  Appellant claims he was prejudiced because his counsel missed an opportunity to emphasize the weaknesses in the State=s case.  Trial counsel=s decision not to make an opening statement could be a matter of trial strategy.  See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.CFort Worth 1997, pet. ref=d).  Appellant does not direct this court to any portion of the record containing an explanation for his counsel=s decision.  Therefore, absent a contrary showing in the record, appellant has failed to rebut the strong presumption that trial counsel=s decision not to make an opening statement was based on a sound trial strategy.  See Salinas, 163 S.W.3d at 740.

In his second argument, appellant contends his counsel rendered ineffective assistance by failing to object to the opinion testimony of Officer Obenland.  During direct examination of Obenland, the State=s counsel asked the following question: ADo you think [appellant] intentionally fled from you?@  Obenland responded in the affirmative, and appellant=s counsel made no objection.  Citing Weathersby v. State, 627 S.W.2d 729 (Tex. Crim. App. 1982), appellant argues his counsel rendered ineffective assistance by failing to object to inadmissible opinion testimony regarding his guilt or innocence. In Weathersby, two police detectives testified the defendant Awas guilty@ of aggravated robbery.  Id. at 730.  In the instant case, Obenland gave opinion testimony regarding appellant=s mental state.  Opinion testimony regarding the mental state of the accused is not inadmissible per se, and rulings on the admissibility of lay opinion testimony are within the discretion of the trial court.  See Tex. R. Evid. 701, 704; Fairow v. State, 943 S.W.2d 895, 899B901 (Tex. Crim. App. 1997) (A[W]e conclude that once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701.  This is so even if the opinion concerns a culpable mental state.@).  Appellant=s counsel may have made a strategic decision not to object in order to avoid drawing attention to Obenland=s testimony and potentially having his objection overruled.  The record is silent as to appellant=s trial counsel=s strategy. Accordingly, we hold that trial counsel=s decision not to object to the opinion testimony of Obenland does not support a claim of ineffective assistance.  

Appellant next argues his trial counsel rendered ineffective assistance by opening the door to extraneous offense evidence. Appellant was on deferred adjudication for possession of marijuana at the time of his arrest.  Appellant=s trial counsel filed a motion in limine to exclude evidence of appellant=s extraneous offenses.  At a pre-trial hearing on appellant=s motion, counsel for the State argued that he intended to introduce evidence of appellant=s deferred adjudication to prove appellant=s motive, absence of mistake, and intent to evade arrest, pursuant to Rule 404(b). See Tex. R. Evid. 403, 404(b).  The trial court ordered the State=s counsel to approach the bench and obtain a ruling before putting extraneous offense evidence before the jury.  During his cross-examination of Obenland, appellant=s counsel asked if appellant had any outstanding warrants at the time of his arrest, and Obenland responded that he did not think so.  The State argued that the question asked by appellant=s trial counsel Aopened the door for . . . the admission of the fact that he was on deferred at the time he was evading to go to knowledge, intent, and motive.@  The trial court sustained the State=s argument, and evidence of appellant=s deferred adjudication was published to the jury. 

Appellant contends the fact that his trial counsel filed a motion in limine to exclude extraneous offense evidence is proof that counsel=s question to Obenland was not part of a trial strategy.  We disagree.  Appellant=s counsel may have chosen to risk opening the door, based on a belief that evidence of appellant=s deferred adjudication would be admitted, regardless of his question, for the purpose of establishing appellant=s motive and intent to evade arrest.  See Tex. R. Evid. 404(b); Powell v. State, 189 S.W.3d 285, 286B87, 289 (Tex. Crim. App. 2006) (holding evidence defendant was on parole was admissible under Rule 404(b) for purpose of establishing defendant=s motive for evading arrest).  Based on the appellate record, we cannot say that appellant=s trial counsel rendered ineffective assistance by asking Obenland if appellant had any outstanding warrants for his arrest.  See Thompson, 9 S.W.3d at 813B14 (holding allegations of ineffective assistance must be firmly founded in the appellate record).

In his fourth and fifth arguments, appellant contends his counsel rendered ineffective assistance by failing to object to the introduction of State=s Exhibits 4-B and 9 into evidence, and failing to object to six questions asked by State=s counsel to Obenland, which allegedly called for hearsay or speculation.  State=s Exhibit 4-B is an audio recording of police radio transmissions from the night of appellant=s arrest.  Exhibit 4-B was introduced into evidence, without objection, under the business records exception to the hearsay rule.  See Tex. R. Evid. 803(6).  Without publishing Exhibit 4-B, the State=s counsel asked Obenland if he would be surprised to learn that the audiotape contained a dispatch stating appellant was on probation for delivery of marijuana. Obenland testified he would not be surprised.  Appellant=s trial counsel did not object. 

State=s Exhibit 9 consists of certified copies of court documents pertaining to appellant=s prior deferred adjudication and community supervision for the offense of possession of marijuana.^[1] Exhibit 9 was introduced into evidence without objection.  Thereafter, the State=s counsel questioned Obenland regarding the conditions of appellant=s community supervision, and Obenland read the following statement from Exhibit 9: AAvoid injurious or vicious habits, including abstaining from the possession or use of all intoxicating beverages and all unlawful possession or use of controlled substances or dangerous drugs.@  Counsel for the State asked Obenland, AAnd what happens if someone violates one of those conditions or rules, do you know?@  Obenland responded, AIt=s up to the judge.  The judge could . . . increase the - - or put them in jail or revoke their probation, any number of things.  I mean, it=s up to the judge.@  Appellant=s counsel did not object.

In support of his fourth and fifth arguments, appellant cites Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990).  In Welborn, a habeas corpus proceeding, the applicant=s trial counsel gave detailed testimony about the reasons for his conduct in representing the applicant at trial.  Id. at 392B93.  In light of counsel=s testimony, the Welborn court concluded that the numerous deficiencies in representation were not part of a trial strategy; rather, they were the result of inexperience, lack of familiarity with the State=s case, and failure to interview any of the State=s witnesses.  Id. at 396.  Appellant raises some of the same claims of ineffective assistance asserted by the applicant in Welborn. However, unlike Welborn, the  record in the instant case is void of information regarding the reasons for appellant=s trial counsel=s conduct.

The State argues that appellant=s trial counsel=s decision not to object to evidence of appellant=s prior community supervision may have been based on strategy.  The State contends appellant=s  counsel may have wanted evidence of appellant=s prior guilty plea in evidence because it would lend credibility to appellant=s denial of guilt in the present case.  The State further suggests that appellant=s counsel may have chosen not to object to the evidence in order to avoid drawing the jury=s attention further to the evidence.  See Duren v. State, 87 S.W.3d 719, 734 (Tex. App.CTexarkana 2002, no pet.) (holding trial counsel=s decision not to object to extraneous offense evidence may be explained as reasonable trial strategy not to draw the jury=s attention to the evidence).  Because the record is silent as to the basis for counsel=s decision not to object to the admission of State=s Exhibits 4-B and 9, or the related questions asked by State=s counsel, we hold that appellant has failed to overcome the presumption that appellant=s trial counsel=s decision was based on a sound trial strategy.  See Salinas, 163 S.W.3d at 740.     

While appellant points to five instances where he contends trial counsel was ineffective, he presents no evidence to rebut the presumption that trial counsel=s actions were the result of reasonable strategic decisions.  From the record in this case, one could conclude that there were professionally sound reasons for trial counsel=s conduct or one could speculate that there were not.  As an appellate court, we cannot engage in such speculation. Stults, 23 S.W.3d at 208. Because appellant has failed to overcome the presumption of reasonable professional assistance, we overrule his third point of error.  

IV. The Trial Court Did Not Err in Denying Appellant=s Motion for New Trial

In his fourth issue, appellant contends the trial court erred in denying his motion for new trial.  Appellant filed a motion for new trial alleging the verdict was contrary to the law and evidence, and the jurors reached a compromise verdict.  The trial court conducted a hearing on February 13, 2006 and denied appellant=s motion. 

An appellate court reviews a trial court=s denial of a motion for new trial under an abuse of discretion standard.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).  A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling.  Id.

 Appellant makes two arguments in support of his fourth issue.  In his first argument, appellant contends the trial court erred in refusing to consider the affidavits of two jurors. At the February 13 hearing, appellant argued he was entitled to a new trial because the jury reached a compromise verdict.  In support of his contention, appellant provided the affidavits of two jurors.  In their affidavits, the jurors testified that they agreed to change their votes from not guilty to guilty, in exchange for a promise that appellant would be sentenced to probation.  The State objected to the jurors= affidavits, and the trial court ruled that the jurors were not competent to testify about the subject matter contained in the affidavits.  In making its ruling, the trial court quoted portions of Rule 606(b).^[2] See Tex. R. Evid. 606(b).

Citing Salazar, appellant argues the trial court erroneously excluded the jurors= affidavits because the State did not specifically object on the basis of Rule 606(b).  See Salazar v. State, 38 S.W.3d 141,147 (Tex. Crim. App.), cert. denied, 534 U.S. 855, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001) (holding Rule 606(b) does not apply absent an objection). Our review of the record shows that counsel for the State objected to the affidavits on the ground that Aonce a jury=s verdict has been reached in a case, there are very limited circumstances where the Court can consider the affidavits of the jurors. . . .@  The trial court interceded and made the following ruling: A[A] juror can testify after trial only about whether an outside influence was brought to bear upon the juror or to rebut a claim that the juror was not qualified, neither of which is raised in this motion for new trial.  It=s denied.@

We hold that the State=s objection was sufficiently specific to inform the court and opposing counsel of the basis for the objection.  We have reviewed the jurors= affidavits.^[3] We conclude that the jurors= testimony is not a proper basis for proof of juror misconduct because the testimony relates solely to matters occurring during deliberations and does not fall within either of the exceptions set out in Rule 606(b).  See Tex. R. Evid. 606(b).  Accordingly, the  trial court did not err in excluding the juror=s affidavits.    

In his second argument, appellant contends the trial court read a coercive Allen charge to the jury, which caused the jurors to reach a compromise verdict.  After deliberating for a period of time, the jury reported to the judge that they were unable to unanimously agree on a verdict.  The trial court instructed the jury as follows:

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 indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time.  Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear the same evidence which 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. 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.  Don=t do violence to your conscience, but continue deliberating.

Appellant cites no authority, and we are not aware of any, which has held this type of charge to be erroneous.  To the contrary, this court and the Court of Criminal Appeals have approved Allen charges containing language almost identical to the charge at issue.  See Arrevalo v. State, 489 S.W.2d 569, 571B72 (Tex. Crim. App. 1973); Willis v. State, 761 S.W.2d 434, 437B38 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d).  The trial court did not abuse its discretion in denying appellant=s motion for new trial.  Appellant=s fourth issue is overruled.

V. The Appellate Record is Not Incomplete

In his fifth issue, appellant claims he should be granted a new trial because his motion for new trial is missing from the appellate record.  The supplemental clerk=s record filed in this court on August 3, 2006 contains a certified copy of appellant=s motion for new trial.  Appellant=s fifth issue is overruled. 

 Conclusion

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 26, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  State=s Exhibit 9 consists of an order from the Panola County Court at Law granting appellant deferred adjudication for the offense of possession of marijuana, an order granting community supervision, an order extending the period for completion of certain conditions of community supervision, the State=s motion to revoke community supervision, an order issuing capias for appellant=s arrest, and an order to any peace officer or community supervision officer to arrest appellant. 

^[2]  Rule 606(b) provides:

Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury=s deliberations, or to the effect of anything on any juror=s mind or emotions or mental processes, as influencing any juror=s assent to or dissent from the verdict or indictment.  Nor may a juror=s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear on any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b).

^[3]  In its appellate brief, the State asserts that the jurors= affidavits are not part of the appellate record. However, the jurors= affidavits are part of the clerk=s record.