dissenting.
Our present code of criminal procedure provides, and probably all its predecessors did as well, that a verdict is “a written declaration by a jury of its decision of the issue submitted to it ...,” Article 37.01, Y.A.C.C.P. The codes have also recognized a possibility that a jury verdict may be informal, meaning the jury had not “reduced [it] to the proper form,” Article 37.-10, id. A means of correcting an informal verdict is indicated, ibid.
Yet, the Legislature has never seen fit to prescribe a mechanism for the jury to reduce its declaration to writing in the proper form. Consequently, that task has been undertaken by courts and, as is often the case, the results have been uneven — to be charitable about it.
Early on, the jury foreman apparently wrote down the verdict on whatever paper happened to be at hand. When the indictment was taken along with the charge into the jury room upon retirement to have a clear understanding of what was alleged, e.g., Lindsey v. State, 108 Tex.Cr.R. 187, 299 S.W. 399, 400 (1927), the foreman might write a verdict on the indictment, as well as on the charge. See Myers v. State, 65 Tex.App. 448, 144 S.W. 1134, 1136 (1912). In Clay v. State, 157 Tex.Cr.R. 32, 246 S.W.2d 180 (1952), he reported the verdict on the bottom of the charge.1
Moreover, given little or no guidance, a foreman might write out something so incomplete, vague or ambiguous that it would not support a judgment of conviction. See, e.g., Buster v. State, 42 Tex. 315 (1875); Wooldridge v. State, 13 Tex.App. 443 (1883). All sorts of rules of construction were applied to glean the intention of a jury in order to save its verdict. See notes 6 and 7 to Article 37.01, V.A.C.C.P. Presumably as a remedial measure, trial judges began to instruct juries as to terms of available verdicts. See, e.g., Williams v. State, 24 Tex.App. 637, 7 S.W. 333, 336 (1888); Oates v. State, 51 Tex.Cr.R. 449, 103 S.W. 859, 862 (1907). Then, to make it even easier, forms of possible verdicts were furnished the jury, along with the charge. However, that practice got mixed reviews on appeal whenever the judge omitted a form favorable to an accused; as the Court delicately put it in Harris v. State, 106 Tex.Cr.R. 539, 293 S.W. 822 (1927):
“Our opinions are not in harmony upon the propriety of furnishing forms of verdict. Some hold it to be a commendable practice. [citations omitted]. Other opinions discourage the practice, [citations omitted]. But all are agreed that, if forms are provided, the court should include a form for every verdict which might be returned under the evidence and instructions of the court so as to avoid conveying to the jury any impression as to the judge’s opinion as to what particular verdict should be rendered, [citation omitted]. Unless the forms provided in the present case violate the latter principle, the action of the court should not be held to call for reversal.”
Id., S.W. at 824. Accord: Cupp v. State, 127 Tex.Cr.R. 10, 74 S.W.2d 701, 704 (1934).
Then came Bolden v. State, 489 S.W.2d 300 (Tex.Cr.App.1972). To its charge the trial court attached a “verdict sheet.” Parenthetically the jury was instructed that if *700it found the defendant guilty to use the verdict form immediately below, and the form provided recited that the jury found defendant guilty of the offense charged in the indictment. Below that appeared:
“(If you find the defendant not guilty, use the verdict form shown immediately below:)
Foreman.”
Ultimately the Court found that “a form for not guilty, although not a proper one, was submitted and if the foreman had signed that form and it had been accepted by the court, the appellant would have been acquitted,” id., at 302. Judge Roberts dissented, and with his usual prescience wrote:
“Suppose an instruction and form provided for a ‘Guilty’ verdict but no mention whatsoever made of a verdict of ‘Not Guilty?’ Taken one logical step further, today’s decision might be good authority for upholding a verdict of ‘Guilty’ in such a case.”
Id., at 303.
As predicted by Judge Roberts, this Court now takes that step, relying on Bol-den v. State, supra, in that appellant did not object to omission of a “Not Guilty” form on the verdict sheet, and the “alleged error” is not deemed fundamental.
In the case at bar the trial court told the jury in its charge that “suitable forms for your verdict are hereto attached.” As it turned, however, that statement proved to be incorrect — so long as a “not guilty” verdict was “suitable.” Although not articulated the majority must reason that, having been instructed under which circumstances it could acquit appellant and say by its verdict “Not Guilty,” and should that be what the jury determined, the foreman of the jury was free to write out his own verdict form to that effect and sign it. That takes us partway back to “the good old days” when jury foremen were left to their own devices.
A trial judge in Texas either invented or adapted from another jurisdiction for use in this State a jury verdict form. When challenged on appeal, judges sometimes disagreed over propriety of the practice. Harris v. State, supra, at 824. Judge Latti-more, for one, believed “such practice should [not] be commended,” Hickox v. State, 95 Tex.Cr.R. 173, 253 S.W. 823, at 826 (1923), regarding it among “expedients in criminal trials [which] should be avoided when there exists room for doubt as to their propriety,” Smith v. State, 103 Tex. Cr.R. 103, 280 S.W. 200, at 201-202 (1926). Nonetheless, a rule approving the practice did develop, viz:
“If the court desires to furnish the jury with a form for their verdict he should include a form for every verdict which might be rendered so as to avoid conveying to the minds of the jury any impression as to the opinion of the court as to which of several verdicts might or should be rendered.”
1 Branch’s Annotated Penal Code (2nd Ed.) 652, § 677.
The Court has held that it is not reversible error for a trial court to submit proper forms, including one for “not guilty,” which “cover all possible verdicts under the facts,” Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513, 515 (1956); Harris v. State, supra, at 302; see also Ragland v. State, 391 S.W.2d 418, 420 (Tex.Cr.App.1965). Indeed, when neither accused nor his counsel had seen the forms, the Court pointed out that they are “justified in assuming that the court would deliver to the jury forms for every verdict authorized by the main charge,” Clepper v. State, 162 Tex.Cr.R. 278, 284 S.W.2d 739, 740 (1955). It is also true that the Court has applied the contemporaneous objection rule when an accused has seen the forms and failed to object, as the majority does here. However, if there is an opinion by this Court rendered before this cause in which the rule has precluded a complaint on appeal that a form verdict of “Not Guilty” was not delivered to the jury at all, I have yet to discover it. Even in Bolden v. State, supra, upon which the majority relies, the Court was not content to invoke the rule and rest on failure of objection.
*701In addition, to justify its result the majority says that “appellant’s counsel supervised the alteration of the verdict page by the court reporter” and equates that with requesting a charge that is given — the invited error rule. However, reading from the State’s brief a report of what happened, I am not so sure that counsel can be said to have “supervised” production of the flawed product.
The court reporter testified that appellant’s counsel requested additional forms on the verdict page for findings of guilt with respect to two lesser included offenses. She took the verdict page that had already been prepared by her, “whited out” in the fifth possible verdict the words “not guilty” and counsel directed her as to what words to type for verdict forms covering the lesser included offenses. Using what remained of the fifth form she completed a verdict for the first requested lesser included offense. When she typed the last verdict form for the last lesser included offense, the reporter “inadvertently, unintentionally left off” a form for a not guilty verdict; she “had not been directed by anyone to leave it off,” and was unaware that she had done so.
In criminal actions, due process vouchsafed by the Fourteenth Amendment and due course of law under Article I, § 19, Bill of Rights, are guarantees that proceedings will be conducted in accordance with established rules and forms which provide fundamental fairness necessary to due administration of justice. Deprivations of due process and due course do not rest on culpable fault, but may flow alike from innocent or good faith acts and omissions on the part of any participant in the criminal justice system. When the charge finally submitted also presented the jury a verdict sheet containing a form to find appellant guilty of the offense alleged or of every other conceivable lesser included offense, but did not include a verdict form for finding appellant not guilty, fundamental fairness was not provided appellant.
The Fort Worth Court of Appeals correctly decided this cause, and its judgment should be affirmed. Because it is not, I respectfully dissent.
TEAGUE and CAMPBELL, JJ., join. Before the court en banc.. What is surely a rarity occurred in Woodall v. State, 58 Tex.Cr.R. 513, 126 S.W. 591 (1910): A juror still sitting in the box signed a verdict written out and handed to him by the district attorney without any deliberation by jurors whatsoever.