James Odell Mayes, Jr. v. State

Opinion issued June 28, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-09-00118-CR
———————————
JAMES ODELL MAYES, JR., Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1112629

MEMORANDUM OPINION ON REMAND

A jury convicted appellant, James Odell Mayes, Jr., of sexual assault of a

child, assessed his punishment at five years’ confinement, and recommended that
the trial court place him on community supervision. The trial court suspended

appellant’s sentence and placed him on community supervision for five years. In

three issues, appellant contended that the trial court erred in failing to grant a new

trial based on its (1) erroneous rejection of the jury’s original punishment verdict

of two years’ confinement with a recommendation of community supervision;

(2) erroneous statement to the jury that the minimum sentence that must be

imposed in order for community supervision to be available was five years; and

(3) failure to assess punishment at two years’ confinement, as originally provided

by the jury. We affirmed the judgment of the trial court on the ground that the

court had properly concluded that the original verdict was illegal. The Court of

Criminal Appeals held that we erred in holding that the jury’s original verdict was

illegal, and it accordingly reversed our judgment. Mayes v. State, 353 S.W.3d 790,

797 (Tex. Crim. App. 2011). 1 The court remanded the case to this Court to

1
The Court of Criminal Appeals wrote:

Although the minimum community supervision period is five years,
the jury properly returned a verdict within the sentencing range of
two to twenty years. Because supervision is not a part of the
sentence, appellant could receive a sentence of two years, and the
trial judge could place him on community supervision for the
minimum term of five years (or for any greater period up to ten
years). The jury was properly instructed on the pertinent law, and it
followed that law. The initial jury verdict of a sentence of two years
with a recommendation of community supervision was legal, and the
trial judge should have accepted it.

Mayes v. State, 353 S.W.3d 790, 797 (Tex. Crim. App. 2011).
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consider the issue of error preservation, and we asked the parties to provide

briefing on that issue. Id.

On remand, we hold that appellant failed to preserve his complaint that the

trial court erred in rejecting the jury’s original punishment verdict, and we affirm

the trial court’s judgment.

Background

Appellant was convicted of sexually assaulting a child who was a student in

his seventh grade class.

At the punishment phase of trial, the jury was correctly charged that the

punishment range for sexual assault of a child was between two and twenty years’

confinement, that it could recommend community supervision for appellant under

certain circumstances, and that the minimum period for such supervision was five

years. During jury deliberations, the members of the jury sent the trial court

several notes indicating that they did not want to sentence appellant to prison and

that they wanted to impose the least restrictive terms on his community

supervision, and they asked a question regarding the proper way to fill out the

verdict form. In response, the trial court referred the jury to the charge.

After further deliberations, the jury signed the punishment option in the

verdict form that read, “We, the Jury, having found the defendant, James Odell

Mayes, guilty of sexual assault, assess his punishment at confinement in the

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institutional division of the Texas Department of Criminal Justice for ___ years

and further find that the defendant has never before been convicted of a felony in

this state or any other state and recommend community supervision of the

sentence.” The jury wrote “two” into the space in which it was to indicate how

many years appellant was to be confined. In response, the following conversation

occurred at the bench, on the record:

The Court: It’s not right. I can’t take this verdict
because it says 2 years, not 5 years.

[Prosecutor]: That’s right. It’s an illegal verdict.

The Court: That’s an illegal verdict. I have to
send them back. It’s not the right
punishment range.

[Defense counsel]: Right.

The trial court then informed the jury that it could not accept the verdict “because

it does not comport with the parameters set out by the Legislature as indicated in

the charge. So, I have to send you back to continue your deliberations.” Appellant

made no objections at this time.

Subsequently, the jury presented the same verdict form to the trial court, but

it changed the amount of time appellant would be confined to five years with the

recommendation that he be placed on community supervision. Again, appellant

made no objection to the verdict, and the trial court entered judgment in

accordance with this verdict.
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 Appellant filed a “Motion for New Trial or in Arrest of Judgment to Correct

Sentence.” He argued that the trial court’s decision to reject the jury’s first verdict

and send the jury back for further deliberations constituted error. The trial court

did not rule on the motion for new trial, and it was overruled by operation of law.

Error Preservation

The State argues that appellant waived any issues regarding the length of his

sentence or the deliberation procedure used in this case by failing to object

specifically to the jury deliberations at a time when the trial court could have

granted effective relief. Appellant, however, argues that the trial court’s error in

rejecting the jury’s original verdict as illegal was a fundamental error that did not

need to be preserved.

All but the most fundamental rights may be forfeited if not insisted upon by

the party to whom they belong. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim.

App. 2002). An exception applies to two “relatively small” categories of error:

(1) violations of waivable-only rights; and (2) denials of absolute, systemic

requirements. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003);

Saldano, 70 S.W.3d at 888; see also TEX. R. EVID. 103(d) (providing that courts

are authorized to “tak[e] notice of fundamental errors affecting substantial rights

although they were not brought to the attention of the court”).

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 Here, appellant argues that the sentence ultimately imposed by the trial court

was an illegal sentence and that he has an absolute right to be sentenced within the

proper punishment range. A sentence that is outside the maximum or minimum

range of punishment is unauthorized by law and therefore illegal. Mizell v. State,

119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Unlike most trial errors that are

forfeited if not timely asserted, a party is not required to make a contemporaneous

objection to the imposition of an illegal sentence. Id. at 806 n.6. However, the

sentence ultimately imposed by the trial court in this case did not fall outside the

proper statutory punishment range.

The punishment range for sexual assault of a child is between two and

twenty years’ confinement, and the trial court accepted the jury’s assessment of

five years’ confinement. See Mayes, 353 S.W.3d at 793 (stating that range of

punishment for sexual assault applicable to appellant is confinement for between

two and twenty years) (citing TEX. PENAL CODE ANN. §§ 22.011(f), 12.33(a)

(Vernon 2011)). Because the sentence ultimately imposed by the trial court was

within the statutory punishment range, it was not an illegal sentence, and,

therefore, the trial court did not violate a fundamental right of appellant’s when it

imposed a sentence in accordance with the jury’s second punishment verdict. See

Mizell, 119 S.W.3d at 806 (holding that sentence outside statutory punishment

range is unauthorized by law and illegal).

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 The only remaining grounds for appeal urged by appellant were that the trial

court erred in (1) informing the jury that the minimum sentence that it had to

impose in order for community supervision to be available was five years and

(2) in failing to assess a punishment of two years’ confinement in accordance with

the jury’s original verdict. Texas courts have repeatedly held that errors in

sentencing and in jury deliberation procedures can be waived by failing to object.

See, e.g., Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (“[I]n order to preserve for appellate review a complaint that a

sentence is grossly disproportionate, constituting cruel and unusual punishment, a

defendant must present to the trial court a timely request, objection, or motion

stating the specific grounds for the ruling desired.”); Trevino v. State, 174 S.W.3d

925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref’d) (“Because the sentence

imposed is within the punishment range and is not illegal, we conclude that the

rights [appellant] asserts for the first time on appeal are not so fundamental as to

have relieved him of the necessity of a timely, specific trial objection.”); Teixeira

v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref’d) (holding that

appellant failed to preserve complaint that trial court arbitrarily refused to consider

entire range of punishment because he failed to make timely objection); Nicholas

v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)

(holding that failure to complain to trial court that consecutive sentences constitute

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cruel and unusual punishment waives error); Llorance v. State, 999 S.W.2d 866,

868–69 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding, where jury

returned initial verdict of guilty and trial court’s colloquy with one juror during

polling resulted in court asking jury to return to its deliberations, that appellant

waived complaint about this procedure by failing to make timely and specific

objection); Yatalese v. State, 991 S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.]

1999, pet. ref’d) (holding that appellant waived complaint that trial court did not

follow statutory procedure in answer and comments during jury deliberations

because appellant expressly approved trial court’s actions); see also Ponder v.

State, 265 S.W.2d 836, 838 (Tex. Crim. App. 1954) (holding that appellant waived

complaint about trial court’s response to jury question during deliberations by

agreeing to court’s action).

Thus, we conclude that the error about which appellant complains is not so

fundamental as to have relieved him of the necessity of a timely, specific trial

objection. We therefore consider whether appellant properly preserved his

complaint.

To preserve an issue for appellate review, the trial record must reflect that

the appellant made a timely objection that states the specific legal basis for the

objection. TEX. R. APP. P. 33.1(a)(1)(A); Layton v. State, 280 S.W.3d 235, 238–39

(Tex. Crim. App. 2009). It is undisputed that appellant did not object to the

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deliberation procedures employed by the trial court, to the trial court’s instructing

the members of the jury to return to their deliberations after they presented their

original verdict, or to the subsequent verdict and judgment. In fact, appellant’s

counsel affirmatively stated, “Right,” in response to the trial court’s determination

that the jury’s initial verdict was illegal and that deliberations should continue.

Moreover, appellant’s motion for new trial did not preserve this issue for

appellate review. A complaint raised in a motion for new trial is not preserved

unless the motion is actually presented to the trial court. See Carranza v. State,

960 S.W.2d 76, 78–79 (Tex. Crim. App. 1998). The rules of appellate procedure

require a defendant to “present” a motion for new trial to the trial court within

specified time limits. TEX. R. APP. P. 21.6. To satisfy the presentment

requirement, a defendant must actually deliver the motion for new trial to the trial

court or otherwise bring the motion to the attention or actual notice of the trial

court. See Carranza, 960 S.W.2d at 78–79 (holding that merely filing motion for

new trial is not sufficient evidence of its presentment to trial court); see also

Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (noting that if

opportunity to object was afforded appellant and he failed to object, he cannot use

later motion for new trial to preserve error). Presentment must be apparent from

the record, and it may be shown by such proof as the judge’s signature or notation

on the motion or proposed order, an entry on the docket sheet showing the motion

9
was brought to the trial court’s attention, or evidence that a hearing was set. See

Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009); Carranza, 960

S.W.2d at 79–80.

Here, appellant’s motion for new trial includes a proposed order form that is

blank and bears no notations by the trial court. Appellant did not include a

certificate of presentment with his motion. The trial court’s docket sheet contains

no reference to the motion for new trial, and the record contains no other evidence

of a hearing, signature, or notation by the trial court indicating that the court had

actual knowledge of the motion.

Because the sentence imposed by the trial court was not illegal, and

appellant did not object during the trial and has not shown that the complaints

raised in his motion for new trial were actually presented to the trial court, we

conclude that appellant failed to preserve for appellate review his issue regarding

the trial court’s rejection of the jury’s original verdict and misstatement of the law.

See Layton, 280 S.W.3d at 238–39; Hardeman, 1 S.W.3d at 690; Carranza, 960

S.W.2d at 78–79.

Appellant’s Remaining Arguments

Appellant also argues that this Court “has the power to correct and reform

the trial court’s judgment ‘to make the record speak the truth when it has the

necessary data and information to do so’ irrespective of whether any party objected

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in the trial court.” See, e.g., Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d). However, he presents no authority supporting

his contention that the power to correct a judgment should apply to a situation such

as this, when the jury’s initial attempt to return a verdict was rejected by the trial

court and the court later accepted and pronounced a proper subsequent sentence

assessed by the jury.

Additionally, appellant argues that the trial court violated its duty to

incorporate a verdict authorized by law into the judgment, which he claims is a

“systemic requirement” that does not require an objection. However, appellant has

failed to establish the existence of a systemic requirement that a trial court enter

judgment on the first verdict returned by a jury. Indeed, trial courts may instruct

juries to conduct further deliberations in many circumstances, including, among

others, when a jury returns conflicting verdict forms, a non-unanimous verdict, or

an otherwise non-complying verdict. See, e.g., Reese v. State, 773 S.W.2d 314,

317 (Tex. Crim. App. 1989) (holding, when trial court returned jury to deliberate

due to conflicting verdict forms, that “[a] verdict must be certain, consistent, and

definite. It may not be conditional, qualified, speculative, inconclusive, or

ambiguous. An incomplete or unresponsive verdict should not be received by the

court”) (internal citations omitted); Partida v. State, 133 S.W.3d 738, 743–44 (Tex.

App.—Corpus Christi 2003, no pet.) (holding, when trial court accepted

11
unanimous guilty verdict on one count, but sent jury back to deliberate on second

count for which it had not reached a verdict, defendant did not preserve his

complaint regarding failure to poll jury because he failed to request that it be

polled and failed to object); Loredo v. State, 47 S.W.3d 55, 60 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d, untimely filed) (holding that trial court did

not err in returning jury to further deliberations and stating, “A trial court may, in

fact, send a jury back for renewed deliberations if the initial verdict does not

comply with the submitted charge, the indictment, or the punishment allowed by

the applicable statute”).

Likewise, courts have held that an appellant is required to preserve error

through an objection in order to complain on appeal about the return of a jury for

further deliberation. See, e.g., Llorance, 999 S.W.2d at 868–69 (holding appellant

waived complaint about trial court’s polling procedure and instruction to jury to

return to deliberations by failing to make timely and specific objection); Ford v.

State, 870 S.W.2d 155, 162 (Tex. App.—San Antonio 1993, pet. ref’d) (holding

appellant did not preserve complaint concerning procedure trial court employed in

deciding to send jury back for further deliberations because he failed to object).

Appellant cites Smith v. State, 479 S.W.2d 680 (Tex. Crim. App. 1972), Ex

parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979), and State v. Dudley, 223

S.W.3d 717 (Tex. App.—Tyler 2007, no pet.), to support his contention. However,

12
these cases address a different set of circumstances from the instant case. In Smith,

the Court of Criminal Appeals held that when the jury’s verdict assessed

punishment at confinement for one year followed by probation, and the verdict was

received by the trial court and entered of record, the trial court in its sentence and

judgment was not entitled to change the verdict of the jury by striking the

probation provision from the verdict after the jury was discharged. 479 S.W.2d at

681.

Similarly, in McIver, the Court of Criminal Appeals stated, “Courts have no

power to change a jury verdict unless it is with the jury’s consent and before they

have dispersed.” 586 S.W.2d at 854.

Finally, in Dudley, the State argued that the trial court should have granted

its motion for a judgment nunc pro tunc and reformed the judgment to reflect the

jury’s alleged intent to sentence Dudley to ten years’ confinement followed by five

years’ probation. 223 S.W.3d at 721. The court observed that “the punishment

verdict recited by the trial court and acknowledged by the jurors before they were

discharged is the only verdict that was rendered,” and it concluded that the trial

court did not err in refusing to reform the judgment “because there [was] no

disparity between the verdict rendered and the written judgment.” Id. at 722.

Here, in contrast to those cases, the trial court never recited the first verdict

returned by the jury, and the jurors did not acknowledge that verdict. See TEX.

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CODE CRIM. PROC. ANN. art. 37.04 (Vernon 2006) (“When the jury agrees upon a

verdict, it shall be brought into court by the proper officer; and if it states that it has

agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in

proper form and no juror dissents therefrom, and neither party requests a poll of the

jury, the verdict shall be entered upon the minutes of the court.”). The trial court’s

written judgment conformed to the only verdict accepted by the trial court, recited

on the record and acknowledged by the jury, in conformance with the principles

applied in Dudley. See 223 S.W.3d at 722.

Likewise, the cases appellant cites for the proposition that he was entitled to

a proper instruction on the range of punishment 2 are unavailing, as the jury

instruction that the applicable range of punishment for appellant’s offense was

between two and twenty years’ confinement was proper. See Mayes, 353 S.W.3d

at 793 (citing TEX. PENAL CODE ANN. §§ 22.011(f), 12.33(a)).

2
See, e.g., Coody v. State, 812 S.W.2d 631, 634–35 (Tex. App.—Houston [14th
Dist.] 1991) (holding that trial court erred in failing to inform jury that it could
assess sentence considerably less severe than minimum range of sentence imposed
and addressing harm from trial court’s improper instruction), rev’d on other
grounds, 818 S.W.2d 68 (Tex. Crim. App. 1991).
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 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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