Nixon, Reginald

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0851-14 & PD-0852-14

REGINALD NIXON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
TARRANT COUNTY

K EASLER, J., delivered the opinion of the Court, in which M EYERS, J OHNSON,
H ERVEY, R ICHARDSON, and N EWELL, JJ., joined. A LCALA, J., filed a dissenting opinion.
Y EARY, J., filed a dissenting opinion, in which K ELLER, P.J., joined.

OPINION

At Reginald Nixon’s trial, the jury returned punishment verdicts of seven years’ and

nine years’ confinement for two charged offenses to run consecutively. The judge instructed

the jury that, by law, the sentences would be served concurrently. After additional

deliberations, the jury returned verdicts of sixteen years’ confinement for each charge.

According to statute, however, the judge was required to accept the original verdicts and
 NIXON—2

reform them in accordance with the law. We therefore must reverse the court of appeals’

judgments and reform the trial court’s judgments to reflect the original verdicts to be served

concurrently.

I. Background

Nixon was charged in separate indictments with the offenses of burglary of a

habitation and evading arrest or detention with a vehicle. The indictments were consolidated

and tried before a jury. Nixon pleaded guilty to both indictments and pleaded true to each

indictment’s enhancement provisions. At the conclusion of evidence, the judge instructed

the jury to find Nixon guilty of the alleged offenses and find the enhancement provisions

true. The jury was further instructed to assess punishment in each cause and was given the

applicable range of punishment for each offense.

During its initial deliberations the jury sent a note to the judge that asked, “Do the

sentences run concurrently or sequential[ly]? I.e.: is the minimum 5 or 7? Clarification: 2

terms and 2 possible fines?” The judge responded only that the jury was to continue

deliberating. The jury returned verdicts of seven years and no fine for the burglary charge

and nine years and no fine for the evading arrest or detention charge. However, on each

verdict form there was an asterisk next to the term of years imposed that referred to a

handwritten notation at the bottom of the verdict. Each notation stated, “To be served

consecutively with [the other charge] not concurrently.”

The judge read the verdicts aloud, but upon noticing the handwritten note, the judge
 NIXON—3

called the parties to the bench. The judge recessed the jury and asked both sides their

positions on the verdicts. The State argued that the verdicts should not be received because

the verdicts were premised on the sentences running consecutively and the law did not permit

the jury to make such a decision. Nixon, however, urged the judge to accept the verdicts but

strike the handwritten portion or grant a mistral. Nixon contended that the note was merely

advisory and that the judge need not follow it. The judge overruled Nixon’s objections and

denied his motion for mistrial. The judge did not receive the verdicts, but instead issued an

additional instruction and sent the jurors to deliberate further. The jury was instructed as

follows:

You are further instructed that the Court cannot accept and receive your
verdicts as stated. You are instructed that the sentences in both causes must
be served concurrently by operation of law. You are instructed to read and
consider this additional instruction with the remainder of the Court’s charge
and consider the charge as a whole. Please continue your deliberations.

Soon thereafter, the jury returned verdicts assessing punishment at sixteen years’

confinement and no fine for both offenses. Nixon was sentenced accordingly.

Nixon contested his sentences on appeal and reasserted his objections at trial. 1 He

argued that the judge erred in failing to accept and reform the jury’s original verdicts. Nixon

did not challenge the propriety of the judge’s additional jury instruction. The court of

appeals held that Texas Code of Criminal Procedure Article 37.10(b) did not require the

1
Nixon v. State, Nos. 07-13-00389-CR & 07-13-00390-CR, 2014 WL 2553372, at
*1 (Tex. App.—Amarillo Jun. 4, 2014) (mem. op., not designated for publication).
 NIXON—4

judge to accept and reform the original verdicts and affirmed the trial court’s judgments.2

The court reasoned that while the judge may have had the authority to reform the verdict

under Article 37.10, he also had the authority to refuse the verdict and return the jury to their

deliberations pursuant to this Court’s opinion in Muniz v. State.3

We granted Nixon’s petition for discretionary review to review the court of appeals’

application of Article 37.10 and to resolve incongruities, if any, between Article 37.10(b) and

Muniz.

II. Analysis

A. Article 37.10

Before Article 37.10(b)’s enactment, a jury verdict containing an unauthorized

punishment rendered the entire verdict void.4 For instance, the court of appeals in Bogany

v. State attempted to reform the jury’s punishment verdict by omitting the fine it included

because the Penal Code did not allow a fine for the particular offense.5 This Court noted that

the controlling law at the time did not authorize an appellate court to reform an unauthorized

verdict.6 And because the court of appeals was without authority to reform the unauthorized

2
Id.
3
Id. at *2 (relying on Muniz v. State, 573 S.W.2d 792 (Tex. Crim. App. 1978)).
4
Bogany v. State, 661 S.W.2d 957, 959 (Tex. Crim. App. 1983).
5
Id. at 958.
6
Id. at 959.
 NIXON—5

verdict, the verdict was “void at its inception” and must be set aside.7 Therefore, reversing

the trial court’s judgments and remanding the cause was necessary.8

Before 1985, the first paragraph of Texas Code of Criminal Procedure Article 37.10,

now Article 37.10(a), stated:

Art. 37.10. Informal verdict

If the verdict of the jury is informal, its attention shall be called to it, and with
its consent the verdict may, under the direction of the court, be reduced to the
proper form. If the jury refuses to have the verdict altered, it shall again retire
to its room to deliberate, unless it manifestly appear that the verdict is intended
as an acquittal; in that case, the judgment shall be rendered accordingly,
discharging the defendant.9

But in 1985, the statute was amended to include Article 37.10(b):

If the jury assesses punishment in a case and in the verdict assesses both
punishment that is authorized by law for the offense and punishment that is not
authorized by law for the offense, the court shall reform the verdict to show
the punishment authorized by law and to omit the punishment not authorized
by law.10

Article 37.10(b)’s inclusion seemingly responded to the predicament the Bogany Court

encountered. It gave the trial and appellate courts the authority to reform a verdict containing

7
Id.
8
Id.
9
T EX. C ODE. C RIM. P ROC. art. 37.10(a) (Vernon 1979 & West 2006).
10
Acts 1985, 69th Leg., ch. 442, § 1 (effective June 11, 1985); T EX. C ODE C RIM.
P ROC. art. 37.10(b) (West 2006).
 NIXON—6

an unauthorized punishment, an infirmity that previously rendered the verdict void.11

Article 37.10(b)’s enactment created a legislative mandate to trial and appellate courts

in addressing partially unauthorized verdicts. Article 37.10(b)’s language indicates that the

Legislature intended courts to treat partially unauthorized verdicts differently from informal

verdicts. Section (a) grants a trial judge the discretion to accept an informal verdict and, with

the jury’s consent, put it into proper form. Only if the jury refuses the alteration must a trial

judge retire the jury for further deliberations. Section (b), however, speaks only to jury

punishment verdicts containing an unauthorized punishment provision. And in the event of

a partially authorized verdict, a trial judge has no choice but to reform the verdict to show

the punishment authorized by law and to omit the punishment not authorized by law. By

enacting Article 37.10(b), the Legislature intended a significant distinction between informal

and partially unauthorized verdicts. To conclude otherwise would run counter to the

established statutory-construction presumption that the Legislature intends that the entire

statute be effective and does not intend a useless action.12

B. Informal or Unauthorized?

This matter’s resolution turns on whether the jury’s verdict was informal or was at

once both authorized and unauthorized. If the jury’s verdict was informal, section (a)

applies; if partially unauthorized, section (b) controls. Nixon takes the view that, unlike the

11
Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex. Crim. App. 1985); Ex parte
Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App. 1985).
12
Garza v. State, 213 S.W.3d 338, 349 (Tex. Crim. App. 2007).
 NIXON—7

terms of confinement, the jury’s verdict notation that the sentences were to run consecutively

is unauthorized, and section (b) required the judge to accept the original verdicts and to omit

the cumulation language.

The State, on the other hand, maintains that the jury’s verdict did not contain

unauthorized “punishment” because cumulation is not considered punishment. Unauthorized

punishment, the State argues, is punishment that falls outside the applicable range of

punishment defined by Penal Code §§ 12.21 through 12.35. Because cumulative sentencing

is permitted under Penal Code § 3.03, not by the statutes defining ranges of punishment, the

State maintains that cumulating sentences should not be considered punishment. Therefore,

the State asserts, the judge had the discretion to either accept and reform the verdict or reject

the verdict and send the jury back for further deliberation.

We are unpersuaded by the State’s argument that cumulation is not true “punishment”

because it does not appear in the Penal Code’s section defining punishment. If we were to

accept the logic of this argument, any addition made by a jury on a punishment verdict

form—whether purporting to cumulate terms of confinement, impose specific community

supervision conditions, dictate a condition of incarceration, or something equally distant from

the jury’s province—would necessarily render the verdict “informal.” But this result does

not correspond with the term’s common usage or how we have defined the term “informal”

in the past.

Black’s Law Dictionary defines “informal” as “not done or performed in accordance
 NIXON—8

with normal forms or procedures.”13 This is a fair definition of the word and one readily

understood by any reader of Article 37.10(a). It further accords with this Court’s reading of

the term. In Jennings v. State, we were asked whether a verdict form was considered a part

of the jury instructions.14 Although Jennings did not attempt to answer the question we do

today, our opinion provides insight into the term “informal verdict.” In the absence of a

statutory requirement for including a jury-verdict form as a part of the court’s charge, this

Court historically was ambivalent over their use.15 Acknowledging Article 37.10(a) as a

vestige of a time when verdict forms were not used with regularity, we noted, “In fact,

Article 37.10 expressly acknowledges the possibility of an ‘informal verdict’—one that does

not meet the legal requirements of being written or answered as authorized—and sets out the

method to repair its ‘informality.’”16 This is consistent with the historical understanding of

the statute’s language, which remains nearly verbatim dating back to the Old Code.17

Reese v. State provides a more recent example of Article 37.10(a)’s interpretation.18

13
B LACK’S L AW D ICTIONARY 898 (10th ed. 2014).
14
302 S.W.3d 306, 307 (Tex. Crim. App. 2010).
15
Id. at 309 & n.13.
16
Id. at 309.
17
See, e.g., Murphree v. State, 115 S.W. 1189, 1190 (Tex. Crim. App. 1908);
Slaughter v. State, 24 Tex. 410, 412–13 (1859).
18
Reese v. State, 773 S.W.2d 314 (Tex. Crim. App. 1989)
 NIXON—9

There, the jury left the verdict form blank for one of the charged offenses.19 The judge

informed the jury of the omission and instructed it to continue deliberating.20 After the jury

returned a second time, the jury’s verdict found Reese guilty of the previously omitted

verdict, but also found him not guilty of a lesser-included offense. Once more, the judge

instructed the jury to reconsider the lesser-included offense. Finally, the jury returned guilty

verdicts on all submitted offenses and their lesser-included offenses.21 We held that the

judge should not receive an incomplete or unresponsive verdict.22 We further noted that, “It

is not only within the power, but it is the duty of the trial judge, to reject an informal or

insufficient verdict, call to the attention of the jury the informality or insufficiency, and have

the same corrected with their consent, or send them out again to consider their verdict.” 23

The Reese Court held that the judge properly directed the jury to continue to deliberate

because (1) the first time the jury returned from deliberations it returned no verdict at all on

one of the charged offenses, and (2) the judge found the jury’s verdicts to be in conflict and

insufficient when it returned the second time.24

19
Id. at 316.
20
Id.
21
Id.
22
Id. at 317.
23
Id.
24
Id. at 318.
 NIXON—10

Like in Reese, omissions rendered the jury’s punishment verdict informal in Muniz

v. State.25 Despite announcing that it had reached a verdict, the jury in Muniz left the

statutorily required future-dangerousness question unanswered.26 The judge sent the jury

back for further deliberations with the instruction to “continue your deliberations in this case,

to see if you can arrive at an answer to Special Issue Number II.”27 We rejected Muniz’s

argument that the verdict was an informal acquittal under then Article 37.10, now Article

37.10(a).28 We held that this provision permits a judge “to put a verdict in the proper form

when the jury fails to do so.”29 There, we held that the jury’s verdict was “merely

incomplete.” We further held that,“The court can instruct a jury to retire to reconsider the

verdict if it does not comply with the charge, the indictment, or the punishment allowed by

the applicable statute.”30 As instructive as Muniz is, it has caused some confusion, especially

in light of Article 37.10(b)’s enactment.

It is Muniz’s last phrase—“the punishment allowed by the applicable statute”—that,

25
Muniz, 573 S.W.2d at 792.
26
Id. at 793.
27
Id.
28
T EX. C ODE C RIM. P ROC. art. 37.10(a) (“If the jury refuses to have the verdict
altered, it shall again retire to its room to deliberate, unless it manifestly appear that the
verdict is intended as an acquittal . . . .”) (West 2006).
29
Muniz, 573 S.W.2d at 794.
30
Id.
 NIXON—11

in the court of appeals’ opinion, prevented it from finding fault in the trial judge’s failure to

accept the original verdicts and reform them.31 However, we find Muniz inapplicable to this

case for the following reasons. First, Article 37.10(b) did not exist when Muniz was decided.

So when Muniz included the phrase “punishment allowed by the applicable statute,” the

Court was not contemplating a distinction between sections (a) and (b).32 Second, the verdict

in Muniz was incomplete; the jury failed to answer a question put to it. As such, the verdict

initially returned was an informal one even in light of yet-to-be-enacted Article 37.10(b).33

Muniz presented both distinguishable facts and controlling law; it does not conflict

with Article 37.10(b), and its holding applies only to informal verdicts. Article 37.10(b)’s

enactment created new mandatory procedures in dealing with an unauthorized verdict.

Unlike Muniz, the verdicts here were complete and decided the two discrete punishment

questions in each case: the terms of confinement and whether a fine should be assessed.

Furthermore, the original verdicts were neither ambiguous nor conditional in that the trial

judge could not discern the jury’s true intent. Rather, the jury’s verdicts were quite definitive

in both assessing no fines and terms of confinement. There was nothing in the jury’s

punishment verdict that could be considered conditional; there are no “if, then” propositions

or dependent clauses in its verdict. It is also readily apparent that the jury intended to control

31
Nixon, 2014 WL 2553372, at *1–2.
32
Id.
33
See Muniz, 573 S.W.2d at 794.
 NIXON—12

how the assessed terms of confinement were to be served. However, the jury was powerless

to do so.34

The verdicts Nixon’s jury returned contain both authorized and unauthorized

punishment. In Ex parte Johnson, this Court addressed a jury verdict that assessed

punishment at fifty years’ confinement and a $10,000 fine that exceeded the monetary

amount permitted under the applicable law.35 We held that the imposition of a $10,000 fine

for aggravated robbery exceeded the $5,000 maximum fine under the applicable range of

punishment.36 After holding that the fifty-year term of confinement was authorized, but the

$10,000 fine was not, we applied newly enacted Article 37.10(b), and reformed the verdict

by deleting the $10,000 fine.37

The San Antonio Court of Appeals’ opinion in Woodard v. State38 is persuasive

because it presented a factually similar punishment verdict to those initially returned by

Nixon’s jury. The court was confronted with an unauthorized verdict when the jury’s verdict

assessed punishment of fifteen years incarceration, but also included a written stipulation that

34
See Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008) (explaining
trial judges’ discretionary power to cumulate punishments). See also T EX. P ENAL C ODE
§ 3.03(a) (West 2006).
35
Ex parte Johnson, 697 S.W.2d at 607–08.
36
Id. at 606.
37
Id. at 607–08.
38
Woodard v. State, 898 S.W.2d 4 (Tex. App.—San Antonio 1995, pet. ref’d).
 NIXON—13

Woodard enter drug rehabilitation as part of his sentence.39 Concluding that the jury verdict

contained some punishment within the law and some without, the court held that Article

37.10(b) required the judge to reform the verdict and omit the punishment not authorized by

law.40 The court held that the trial judge correctly omitted the drug-rehabilitation stipulation

because it was clearly unauthorized.41

In this case, the jury’s original punishment verdicts were also neither contradictory

nor incomplete. The jurors answered all the questions asked of them. The jury’s imposition

of seven years and no fine for the burglary charge and nine years and no fine for the evading

arrest or detention charge was authorized because these terms were within the applicable

punishment range for both offenses.42 However, the jury’s attempt to stack the terms was

unauthorized because “the Legislature has assigned the task of cumulating sentences

exclusively to the trial judge.”43 In fact, the judge also could not order the two terms of

confinement to run consecutively. Although the dissent suggests cumulation is “in the nature

of an unavoidable administrative determination,”44 this case presented no opportunity to

39
Id. at 5.
40
Id. at 6.
41
Id.
42
See T EX. P ENAL C ODE §§ 3.03(a), 12.42(a–b), 38.04(b)(2)(A), 30.02(c)(2)
(West 2006).
43
Beedy, 250 S.W.3d at 110. See T EX. P ENAL C ODE § 3.03(a).
44
Post, at 3 (Yeary, J., dissenting).
 NIXON—14

determine how the terms would run because Penal Code § 3.03(a) required concurrent

sentencing.

Because the jury’s handwritten additions to the verdict form were clearly intended

to control how the nine- and seven-year terms of confinement were to be served—in essence,

ensuring Nixon would be incarcerated for sixteen years—the jury intended that the

cumulation serve a punitive purpose, and those additions should be considered punishment

for purposes of this statute. After all, the unauthorized features of the jury’s verdicts are

found in its punishment verdicts—the result of the jury’s “normative, discretionary function”

in assessing how Nixon should be punished.45 Although the terms of confinement were

authorized punishments, the attempted cumulation was punishment unauthorized by law.

Article 37.10(b)’s plain language is clear that, when the jury assesses punishment and returns

a verdict assessing punishment that is both authorized and unauthorized by law, “the court

shall reform the verdict to show the punishment authorized by law and to omit the

punishment not authorized by law.”46 Accordingly, we hold that the judge erred in failing

to accept the initial punishment verdicts and omit the jury’s unauthorized attempt to stack the

terms of confinement.

45
See Barrow v. State, 207 S.W.3d 377, 379–80 (Tex. Crim. App. 2006) (holding
that judge-imposed cumulation does not offend the Sixth Amendment, and further noting
that where within the statutory range punishment should be assessed and whether to
cumulate the sentences imposed is a “normative, discretionary function that does not turn
on discrete findings of fact.”)
46
T EX. C ODE C RIM. P ROC. art. 37.10(b).
 NIXON—15

III. Conclusion

We note the varying courts of appeals’ positions in determining what portion of a

punishment verdict is unauthorized and how to remedy it by omission. 47 Unlike most of

those cases, the verdicts here do not present those that, if entered and incorporated into

judgments, would result in illegal sentences. We reserve that discussion for the proper case.

We further note that the jury’s original verdicts demonstrate their intent to require Nixon to

serve a total of sixteen years’ confinement on both charges. However, Article 37.10(b)’s

plain language compels us to conclude that the court of appeals erred in affirming the trial

court’s judgments because it explicitly requires the original verdicts’ acceptance and

reformation. We must do so no matter how desirable the results of a contrary interpretation

may be.48 Because the judge was required to reform the verdict under Article 37.10(b) but

failed to do so, it now becomes our duty to reform it.49

Accordingly, we reverse the court of appeals’ judgment and reform the trial court’s

47
Compare Russell v. State, 727 S.W.2d 92 (Tex. App.—Dallas 1987, pet. ref’d)
(omitting the entire fine when the jury also assessed non-probated confinement term), and
Bennett v. State, 723 S.W.2d 359 (Tex. App.—Fort Worth 1987, no pet.) (same), with
Vance v. State, 970 S.W.2d 130 (Tex. App.—Dallas 1998, no pet.) (reducing jail time to
statutory maximum), and Howard v. State, 766 S.W.2d 907 (Tex. App.—Fort Worth
1989, no pet.) (reducing fine to statutory maximum).
48
Contra post, at 2 (Yeary, J., dissenting) (suggesting a different interpretation to
give trial courts greater flexibility in handling verdict “anomalies”).
49
T EX. C ODE C RIM. P ROC. art. 37.10(b) (“If the trial court is required to reform a
verdict under this subsection and fails to do so, the appellate court shall reform the verdict
as provided by this subsection.”).
 NIXON—16

judgments to reflect the original punishment verdicts of seven years’ confinement and no fine

for the burglary offense and nine years’ confinement and no fine for the evading arrest or

detention offense.50 These sentences shall be served concurrently.51

DELIVERED: February 24, 2016

PUBLISH

50
See T EX. R. A PP. P. 78.1(b).
51
See T EX. P ENAL C ODE § 3.03(a).