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
A LCALA, J., filed a dissenting opinion.
DISSENTING OPINION
When must a trial judge refuse to accept a jury’s verdict and order it to continue
deliberating until it reaches another verdict? I conclude that a trial judge must refuse to
accept a jury’s verdict when it contains ambiguity that rises to the level that the jury’s intent
cannot be fairly discerned by the trial court. Under those circumstances, a trial court should
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proceed under Article 37.10(a) of the Code of Criminal Procedure, which requires a judge
to inform the jury about its failure to comply with the formal requirements for a verdict and
to reduce its verdict to a proper form. See T EX. C ODE C RIM. P ROC. art. 37.10(a). Applying
that article to this case, I would uphold the court of appeals’s judgments affirming the trial
court’s judgments that sentenced Reginald Nixon, appellant, to the prison terms assessed by
the jury in its subsequent verdicts that were reached after the trial judge rejected its original
verdicts. See Nixon v. State, Nos. 07–13–00389–CR, 07–13–00390–CR, 2014 WL 2553372,
at *2 (Tex. App.—Amarillo June 4, 2014, pet. granted). This Court’s decision to disregard
the subsequent verdicts and to reform appellant’s sentences to the lower prison terms in the
original verdicts, which are half of what the jury actually intended, is a windfall for appellant
that is not required under the law. I, therefore, respectfully dissent from this Court’s
judgments.
The facts in this case are not in dispute. During punishment deliberations, the jury
asked the trial court whether the two sentences that it would be imposing would run
concurrently or consecutively. The judge declined to answer that question, instead instructing
the jury to continue deliberating by applying the law that it had previously been given. After
that, the jury filled out verdict forms indicating that appellant was to be sentenced to a prison
term of seven years for evading arrest and another prison term of nine years for burglary of
a habitation, but it also qualified those verdicts by indicating with an asterisk that the
sentences were to run consecutively. The trial court, however, could not order the sentences
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to run consecutively because the Texas Penal Code required that they run concurrently. See
T EX. P ENAL C ODE § 3.03(a). The trial court rejected the jury’s original verdicts, it instructed
the jury that any sentences would run concurrently as a matter of law, and it told the jury to
continue its deliberations. The jury then subsequently returned verdict forms sentencing
appellant to sixteen years for each offense.
In rejecting the jury’s original verdicts and instructing it to continue deliberating, I
conclude that the trial court acted within the authority of Code of Criminal Procedure Article
37.10(a), which states,
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; and in that case, the judgment shall be rendered accordingly,
discharging the defendant.
See T EX. C ODE C RIM. P ROC. art. 37.10(a). This Court’s precedent is instructive in explaining
the meaning of Article 37.10(a). See id. This Court has observed that an informal verdict
is one that “does not meet the legal requirements of being . . . answered as authorized.” See
Jennings v. State, 302 S.W.3d 306, 309 (Tex. Crim. App. 2010). Article 37.10(a), this Court
has explained, “sets out the method to repair [such a verdict’s] informality.” Id. To meet its
legal requirements, a verdict should be unambiguous with respect to the jury’s intent. See
Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989). This Court has stated,
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. It is not only within
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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.
Id. (citations omitted). Here, because the jury’s verdicts contained surplusage that called into
question the jury’s intent, the trial-court judge could have reasonably concluded that the
initial verdicts were ambiguous, and, on that basis, the court acted within its authority by
sending the jury out to clarify its verdicts.
Not only must a trial court reject a verdict that is so ambiguous that the jury’s intent
cannot be fairly ascertained, but the trial court’s instructions to the jury on which it relies to
reach a verdict should inform it about the applicable law. Here, the trial court could properly
have provided the applicable law that the sentences in these cases would run concurrently.
See T EX. P ENAL C ODE § 3.03(a); Gordon v. State, 633 S.W.2d 872, 879 (Tex. Crim. App.
1982) (holding that the trial court’s truthful answer to the jury’s question inquiring whether
the sentences would run consecutively or concurrently was not improper); Haliburton v.
State, 578 S.W.2d 726, 729 (Tex. Crim. App. 1979) (same, and reasoning that the trial
court’s supplemental charge informing the jury that defendant’s sentences would run
concurrently was “a proper matter for jury consideration”). In Haliburton, this Court
explained the rationale underlying its holding as follows:
The policy of the law should require juries to make informed and intelligent
decisions based on every piece of information legally available. [To disallow
the trial court’s response regarding concurrent sentences] would exclude
information from the jury hoping that in their ignorance the jury would return
a less severe punishment. Such a result is not supported by law or logic.
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Haliburton, 578 S.W.2d at 729.
Because the trial court could properly have informed the jury that the law required
concurrent sentences in this case and it had neglected to inform the jury as to that law even
after the jury sent a question asking about it, the jury was unaware of whether the sentences
would run consecutively or concurrently and of whether it or the trial court would decide the
matter of consecutive or concurrent sentencing. It would have been rational for the jury to
believe, therefore, that the matter of whether the sentences would run concurrently or
consecutively was within its power to decide. Under these circumstances, I conclude that the
jury’s asterisk reflects that the jury was attempting to communicate its desire to sentence
appellant to sixteen years in prison for each of the two offenses if the sentences were to run
concurrently and seven and nine years in prison for each of the offenses if the sentences were
to run consecutively.1 Thus, I conclude that the original verdicts did not meet the legal
requirements for verdicts because they were not “certain” or “definite,” in the sense that they
were “conditional” upon the sentences running consecutively. See Reese, 773 S.W.2d at 317.
Because of the ambiguity in the jury’s original verdicts, the court of appeals properly held
that the trial court was authorized to reject those verdicts and to order the jury to continue
deliberating until it reached proper subsequent verdicts in light of the applicable law. See
T EX. C ODE C RIM. P ROC. art. 37.10(a).
1
In any event, even if consecutive sentences had been permissible in this case, the matter of
whether sentences are to run concurrently or consecutively is one for a trial judge rather than a jury.
See TEX . CODE CRIM . PROC. art. 42.08 (vesting in trial court authority to order concurrent or
consecutive sentences).
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Nothing about these facts suggests that the jury’s original verdicts were an attempt to
formally assess punishment that was not authorized by law for the offenses. I, therefore,
disagree that the outcome of this case is controlled by Article 37.10(b), which applies when
a jury returns a verdict that assesses a punishment not authorized by law. See T EX. C ODE
C RIM. P ROC. art. 37.10(b). Thus, this situation is unlike one in which the jury has formally
assessed an unauthorized punishment, such as imposing a jail term that exceeds the statutory
maximum. See Vance v. State, 970 S.W.2d 130, 132 (Tex. App.—Dallas 1998, no pet.)
(affirming trial court’s reformation, following motion for new trial, of defendant’s jail
sentence from 730 days to 365 days, where 365 days was maximum allowed by statute and
jury charge had erroneously instructed jury that it could impose sentence of 730 days).
I would uphold the jury’s subsequent verdicts in this case that set appellant’s
punishment at sixteen years in prison for each offense. I would not reform appellant’s
punishment to the lower prison terms of seven years and nine years in prison, respectively.
Because this Court’s holding results in a windfall to appellant that is unnecessary under our
laws, I respectfully dissent.
Filed: February 24, 2016
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