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Click here for the full text of this decision FACTS:Appellant was charged with aggravated sexual assault and indecency with a child. After the close of evidence, the trial court instructed the jury on two counts of aggravated sexual assault and two counts of indecency with a child. The jury originally returned verdicts of “not guilty” on the two counts of aggravated sexual assault and verdicts of “guilty” on the two indecency counts. Appellant asked for the jury to be polled. During the polling procedure, it became apparent that the jury was not unanimous on the two “not guilty” verdicts. The judge addressed the jury, telling the two hold-out jurors, “We do have a problem with both of you,” and asking them if they would be able to change their vote. The appellant asked for a mistrial on the two nonunanimous counts. The trial judge said that he would permit the jurors to continue their deliberations for the time being, and, if they could not reach a verdict that evening, he would reconsider granting a mistrial. Twenty minutes after being sent back to deliberate, two separate notes were sent out announcing that the hold-out jurors had changed their verdicts. The trial judge announced, “So now that conforms with everybody.” Appellant’s attorney reurged his motion for mistrial. The trial judge denied that motion. The jury sentenced appellant to 20 years’ imprisonment on count two and 10 years’ probation on counts three and four. The court of appeals concluded that “jury coercion is apparent from the trial court’s final conversation with the two hold-out jurors.” It sustained appellant’s point of error, reversed the judgment on count two and remanded that portion of the case for a new trial. HOLDING:The court of appeals judgment is affirmed. The appellant failed to preserve any appellate issue concerning the trial court’s polling procedure; appellant’s motion for mistrial was sufficiently timely to preserve the complaint that he did make on appeal. The appellant’s complaint was that the judge improperly spoke with two jurors about their willingness to change their verdict, and that conversation occurred during the polling of the jury. The appellant did not forfeit the right to complain about the content of the trial court’s later statements simply because he asked for the jury to be polled or because he failed to object once the trial court went beyond the proper scope of jury polling. The court of appeals concluded that, once the words were spoken, appellant made a timely motion for mistrial. And, as the court of appeals correctly held, if an objection and instruction to disregard would not have been sufficient to cure the error, then appellant was not required to undertake those steps first. Here, appellant 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. Thus, appellant 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 by the very uttering of the words. OPINION:Cochran, J.; Meyers, Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Keller, PJ, concurred in the result.

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