                                                                                 PD-851-14
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
January 8, 2014                                            Transmitted 1/7/2015 10:55:28 PM
                                                              Accepted 1/8/2015 3:47:04 PM
                                                                               ABEL ACOSTA
                    CAUSE NUMBERS PD-851-14 &      PD-852-14                           CLERK




                                 IN THE

      COURT OF CRIMINAL APPEALS
                                OF TEXAS
                              ***************

                       REGINALD NIXON
                                                  Petitioner-Appellant,
                                    v.

                     THE STATE OF TEXAS
                                                  Respondent-Appellee.
                              ***************
        APPEAL ON PETITION FOR DISCRETIONARY REVIEW IN CAUSE
        NUMBERS 07-13-389-CR AND 07-13-390-CR FROM THE SEVENTH
         COURT OF APPEALS, AND IN CAUSE NUMBERS 1264129D AND
                1264131D FROM THE 432nd DISTRICT COURT
                          OF TARRANT COUNTY
                              ***************

                  APPELLANT’S REPLY BRIEF
                              ***************

                                         John Bennett
                                         P.O. Box 19144
                                         Amarillo, TX 79114
                                         Telephone: (806) 282-4455
                                         Fax: (806) 398-1988
                                         Email: AppealsAttorney@gmail.com
                                         State Bar No. 00785691
                                         Attorney pro bono for the Appellant
                                       TABLE OF CONTENTS

Index of Authorities ..............................................................................................3

Reply to the Argument that a Cumulation Order is Not

         Punishment (SB, p. 8-9) .............................................................................6

Reply to the Argument that the Plain Language of Art. 37.10(B)

         would lead to Absurd Results (SB, p. 10-11).............................................7

Reply to the Argument that “through Article 37.10(b) the Texas

         Legislature Intended to Expand the Authority of the Appellate

         Courts, Not to Diminish the Authority of the Trial Courts”

         (SB, p. 12-15) ...........................................................................................11

Reply to the Argument that “Since the Enactment of Article 37.10(b),

         the Courts Have Confirmed a Trial Court’s Authority under

         Article 37.10(a) to Reject an Unresponsive Verdict”

         (SB, p. 16).................................................................................................13

Prayer ..................................................................................................................15

Certificate of Compliance ...................................................................................15

Certificate of Service ..........................................................................................16




                                                             2
                                   INDEX OF AUTHORITIES

Cases

Howard v. State, 766 S.W.2d 907 (Tex.App. – Fort Worth 1989,

        no pet) .........................................................................................................8

Jennings v. State, 302 S.W.3d 306 (Tex.Crim.App. 2010) ................................13

Loredo v. State, 47 S.W.3d 55 (Tex.App. – Houston [14th Dist.]

        2001, pet. ref’d, untimely filed)................................................................14

Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002)................................ 11-12

Mahaffey v. State, 364 S.W.3d 908 (Tex.Crim.App. 2012) ...............................12

Mathis v. State, 424 S.W.3d 89 (Tex.Crim.App. 2014) .....................................12

McCoy v. State, 126 S.W.2d 487 (Tex.Crim.App. 1939)...................................13

Murray v. State, 302 S.W.3d 874 (Tex.Crim.App. 2009) ....................................8

Reese v. State, 773 S.W.3d 314 (Tex.Crim.App. 1989) ............................... 13-14

Rhodes v. State, 240 S.W.3d 882 (Tex.Crim.App. 2007)...................................10

Woodard v. State, 898 S.W.2d 4 (Tex.App. – San Antonio 1995,

        pet. ref.).......................................................................................................9


Statutes

TEX. CODE CRIM. PRO. ANN. Art. 37.01 (Vernon supp. 2013) .....................6

TEX. CODE CRIM. PRO. ANN. Art. 37.04 (Vernon supp. 2013) .....................7



                                                           3
TEX. CODE CRIM. PRO. ANN. Art. 37.10(a) (Vernon supp. 2013)......... 10-14

TEX. CODE CRIM. PRO. ANN. Art. 37.10(b) (Vernon supp. 2013)........... 6-14

TEX. CODE CRIM. PRO. ANN. Art. 44.01(b) (Vernon supp. 2013)...............10

TEX. PEN. CODE ANN. § 12.42(d) (Vernon supp. 2013) ...............................10

TEX. PEN. CODE ANN. § 12.34 (Vernon supp. 2013) ....................................10


Legislation

Texas Legislature, Acts 1985, 69 Leg., ch. 442, § 1, eff. June 11,

      1985 – SB 1349, “Bill Analysis”................................................................8




                                                 4
                CAUSE NUMBERS PD-851-14 & PD-852-14


                                    IN THE

 COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                ***************

                     REGINALD NIXON
                                                    Petitioner-Appellant,
                                        v.

                 THE STATE OF TEXAS
                                                    Respondent-Appellee.
                                ***************
   APPEAL ON PETITION FOR DISCRETIONARY REVIEW IN CAUSE
   NUMBERS 07-13-389-CR AND 07-13-390-CR FROM THE SEVENTH
    COURT OF APPEALS, AND IN CAUSE NUMBERS 1264129D AND
           1264131D FROM THE 432nd DISTRICT COURT
                     OF TARRANT COUNTY
                                ***************

        APPELLANT’S REPLY BRIEF
                                ***************
To the Honorable Judges of the Court of Criminal Appeals:
      COMES NOW Reginald Nixon, Appellant, and submits this Reply Brief

in support of his request for reformation of the judgments to reflect sentences of

seven and nine years’ imprisonment, respectively, or for remand to the court of

appeals for new analysis.


                                        5
       REPLY TO THE ARGUMENT THAT A CUMULATION
           ORDER IS NOT PUNISHMENT (SB, p. 8-9)

      The State’s Brief first argues that a cumulation order is not punishment.

(State’s Brief (SB), p. 8-9). This, says the State’s Brief, removes TEX. CODE

CRIM. PRO. ANN. Art. 37.10(b) (Vernon supp. 2013) from consideration, since

the language of that provision operates only if the jury’s verdict “assesses both

punishment that is authorized by law for the offense and punishment that is not

authorized by law for the offense.” Id. Since the verdicts’ cumulation language

does not amount to punishment, the argument goes, Art. 37.10(b) cannot apply.

      But if this line of reasoning is correct, the argument still does not help the

State’s case, because it proves too much. A verdict is “a written declaration by a

jury of its decision of the issue submitted to it in the case.” TEX. CODE CRIM.

PRO. ANN. Art. 37.01 (Vernon supp. 2013) (emphasis added). If the State’s

Brief is correct that a cumulation order is not “punishment,” then the cumulation

language here forms no part of the true verdict; no issue regarding cumulation

was submitted to the jury, so Art. 37.01 bars the decision from being considered

as any part of the verdict. Under the State Brief’s argument, then, the purported

cumulation orders have no effect on the punishments or the sentences; the

stacking language has no more significance than a note to the trial court saying

the jury would like to be provided with extra mustard with a forthcoming lunch.



                                         6
      And the verdicts of terms of imprisonment were “in proper form,” since

they were within the statutory limits, and evidently “no juror dissent[ed]

therefrom, and neither party request[ed] a poll of the jury.” Thus “the verdict”

should simply have been “entered upon the minutes of the court,” TEX. CODE

CRIM. PRO. ANN. Art. 37.04 (Vernon supp. 2013), without further ado. In

short, under the State’s Brief’s argument, the trial court should simply have

accepted the verdicts of seven and nine years’ imprisonment, and the court of

appeals should have reformed the judgments to reflect those terms.



  REPLY TO THE ARGUMENT THAT THE PLAIN LANGUAGE
    OF ART. 37.10(b) WOULD LEAD TO ABSURD RESULTS
                       (SB, p. 10-11)

      If the State Brief’s contention that Art. 37.10(b) does not apply to the

situation at hand, addressed above, then all else is moot.

      But if not, the State’s Brief next complains that under Art. 37.10(b),

imposing the seven- and nine-year sentences in the original verdict forms would

be an absurd result, since the defendant thereby would receive a “windfall” the

jury did not intend. (SB, p. 10-11).

      But on the contrary, the Legislature chose its words carefully when it

enacted Art. 37.10(b), and did so for the express purpose of conserving judicial

resources, i.e., permitting trial and appellate courts to reform judgments so that


                                         7
punishments would conform to the law. (See Appellant’s Brief, p. 18-19 –

Texas Legislature, Acts 1985, 69 Leg., ch. 442, § 1, eff. June 11, 1985 – SB

1349, “Bill Analysis”). Where juries contravene the instructions given them and

try to impose unauthorized punishments – as here – under Art. 37.10(b) the

courts must properly take it upon themselves to implement the proper portions

of verdicts and disregard improper ones.

      Moreover, statutory construction takes into account extratextual factors

only where “the statutory language were ambiguous or the plain meaning of the

language led to absurd results that the legislature could not possibly have

anticipated.” Murray v. State, 302 S.W.3d 874, 881 (Tex.Crim.App. 2009)

(emphasis added). Yet the State does not contend that Art. 37.10(b)’s language

is ambiguous. And the Legislature must have anticipated the fact that Art.

37.10(b) would result in a “windfall” for one party or the other, since

disregarding an unauthorized part of a verdict will always benefit either the State

or the defendant, and its omission from the judgment can only disappoint the

party that stood to benefit. The Legislature could not have overlooked the

possibility that a defendant might get a windfall – as one court of appeals has

noted, the “obvious intent of article 37.10(b) is to authorize the court to reduce

the punishment to that which is allowed by law.” Howard v. State, 766 S.W.2d

907, 908 (Tex.App. – Fort Worth 1989, no pet) (emphases added).


                                        8
      In Woodard v. State, 898 S.W.2d 4 (Tex.App. – San Antonio 1995, pet.

ref.), noted in the Appellant’s Brief (p. 25), the defendant was undoubtedly

disadvantaged by the operation of Art. 37.10(b). Had the verdict’s unauthorized

portion been implemented, the defendant would have spent some of his sentence

in a drug treatment facility instead of prison, which would have been infinitely

more comfortable for him. See Appellant’s Brief, p. 25. But since the jury had

no authority to make such a qualification, the defendant was out of luck. And

because the jury was nowhere told it could order drug treatment, neither the

defendant there nor the appellant here – nor presumably the State as well – could

plausibly claim that implementing Art. 37.10(b) leads to absurdity simply

because the jury’s mistake in the defendant’s favor was properly corrected.

Similarly, Art. 37.10(b) can hardly be said to have absurd consequences simply

because here the appellant will benefit, rather than be harmed, by its plain

language.

      The State’s Brief also posits a hypothetical situation in which the jury,

instructed to return a punishment for a habitual felon, returns a verdict stating a

20-year prison term (which is below the statutory minimum) and a $25,000 fine.

Under a strict interpretation of Art. 37.10(b), says the State’s Brief, the proper

result will be deletion of the invalid 20-year term, leaving the defendant with a

mere fine, which would be absurd and therefore permit the courts to deviate


                                        9
from the provision’s plain language. (SB, p. 11-12). Incidentally, no fine can

be imposed for a felony with two properly-sequenced final prior felonies – the

only possible punishment is five to 99 years or life, with no fine. TEX. PEN.

CODE ANN. § 12.42(d) (Vernon supp. 2013).

      The State’s Brief’s example would be more plausible in positing, for

example, a punishment verdict for a third-degree felony reciting a one-year term

of imprisonment and a fine of $5,000. In this the fine would be authorized, but

the prison term would not. TEX. PEN. CODE ANN. § 12.34 (Vernon supp.

2013). But close examination of § 12.34 reveals that this, too, is impossible.

Art. 37.10(b), requiring reformation of partially unauthorized verdicts, still

would not apply, since the resulting sentence would be illegal and could not

properly be reformed; under § 12.34(a) the punishment must include a prison

sentence; a fine is optional. Id. And when “only one of the sentencing elements

is void, the judgment is rendered void only if the judgment cannot be reformed

to cure the infirmity” – if “the infirmity cannot be cured without resort to

resentencing.” Rhodes v. State, 240 S.W.3d 882, 888 (Tex.Crim.App. 2007).

The jury would have to deliberate further, or if the State appealed under TEX.

CODE CRIM. PRO. ANN. Art. 44.01(b) (Vernon supp. 2013) (“The State is

entitled to appeal a sentence in a case on the ground that the sentence is illegal”),

a new sentencing hearing would be required. Again, then, no absurdity results.


                                         10
   REPLY TO THE ARGUMENT THAT “THROUGH ARTICLE
      37.10(b) THE TEXAS LEGISLATURE INTENDED TO
       EXPAND THE AUTHORITY OF THE APPELLATE
        COURTS, NOT TO DIMINISH THE AUTHORITY
             OF THE TRIAL COURTS” (SB, p. 12-15)

      Again, should the Court agree with the State’s Brief’s initial contention

that a cumulation order is not punishment, then the cumulation language in the

verdict forms is of no import whatever, and the judgments should be reformed to

reflect the original verdicts of seven and nine years.

      Otherwise, though, the State’s Brief next contends that Art. 37.10(b)

enlarges the appellate courts’ power to reform judgments, but does not remove

the trial courts’ authority to order further deliberations under Art. 37.10(a). (SB,

p. 12-15).

      But the plain language of Art. 37.10(b) does so restrict the trial courts.

Under Art. 37.10(a) the trial court retains the authority to reduce an informal

verdict to proper form with the jury’s consent and, failing that, to order the jury

to deliberate further, unless the verdict returned is “manifestly … intended as an

acquittal.” Yet where the verdict is not informal but simply partially authorized

and partially not, under Art. 37.10(b) the trial “court shall reform the verdict to

show the punishment authorized by law and to omit the punishment not

authorized by law.”      Id.   “Use of the word ‘shall’ generally indicates a

mandatory duty.” Luquis v. State, 72 S.W.3d 355, 363 & n. 17 (Tex.Crim.App.


                                         11
2002), quoted in Mathis v. State, 424 S.W.3d 89, 94, n. 15 (Tex.Crim.App.

2014). While Art. 37.10(b) indeed expands appellate courts’ power to so reform

verdicts, as the State’s Brief argues, (SB, p. 12-15), a trial court’s power to do

anything other than accept the authorized part of a partially unauthorized verdict

is restricted. And to permit the trial court to act under 37.10(a) when the

situation at hand is addressed by 37.10(b) is to render the latter meaningless. As

the appellant noted in his brief (p. 28), when interpreting statutes, courts

“presume that the Legislature intended for the entire statutory scheme to be

effective.” Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App. 2012).

      The mandatory language of Art. 37.10(b) also makes moot the State’s

Brief’s further suggestion that the appellant “does not cite any authority

supporting the idea that the trial court had a mandate to accept the informal,

unresponsive verdict and apply article 37.10(b) rather than allowing the jury to

correct its mistake under article 37.10(a).” (SB, p. 21). Art. 37.10(b) is specific

authority requiring the trial court to accept, and disregard the cumulation

language of, the initial verdicts the jury returned; it also constitutes explicit

authority for reviewing courts to reform the judgments to reflect those initial

verdicts. Id.




                                        12
REPLY TO THE ARGUMENT THAT “SINCE THE ENACTMENT
 OF ARTICLE 37.10(b), THE COURTS HAVE CONFIRMED A
  TRIAL COURT’S AUTHORITY UNDER ARTICLE 37.10(a)
   TO REJECT AN UNRESPONSIVE VERDICT” (SB, p. 16)

      The State’s Brief further argues that an unresponsive verdict should not be

received by a trial court. (SB, p. 15-16). In this the State’s Brief quotes a very

old case, McCoy v. State, 126 S.W.2d 487 (Tex.Crim.App. 1939), long predating

Art. 37.10(b), to conclude that a “verdict is unresponsive when it addresses an

issue not submitted to the jury,” id. at 487-8, thus implying that the verdicts here

are also unresponsive. (SB, p. 16). But the modern understanding is that an

“informal verdict” is one that “requires correction” in order to put it into the

“proper form,” and thus is controlled by Art. 37.10(a). Jennings v. State, 302

S.W.3d 306, 310 (Tex.Crim.App. 2010) (emphasis added).

      The State’s Brief then attempts to apply Reese v. State, 773 S.W.3d 314

(Tex.Crim.App. 1989) (SB, p. 16), which utilizes Art. 37.10(a) to the situation

here. In this the State’s Brief overlooks the facts of Reese, in which a truly

unresponsive verdict was reached; the discrepancy in Reese was not that the jury

answered a question not put to it. Instead the jury’s initial “verdict did not

address one of the offenses contained in the trial court’s charge,” and after

further deliberations the second verdicts were found to be “conflicting and

insufficient,” requiring even more deliberation. Reese, 773 S.W.2d at 316-7.



                                        13
(SB, p. 16). In these circumstances, “the trial court not only had the power to

send the jury back for further deliberations but it was his duty to do so.” Id. at

317-8. The Court did not specifically cite Art. 37.10(a), but the provision’s

applicability is clear – the verdicts in Reese were not in “the proper form,” id. at

317, Art. 37.10(a), since initially one offense was not even addressed and the

second verdicts were again “insufficient,” as well as “conflicting.” Id. at 316.

      But the verdicts here were very different. They were neither insufficient

nor conflicting, and thus were not “unresponsive” in the sense Reese envisioned.

Instead, if the State’s Brief’s initial argument is incorrect and the cumulation

language in them is to be given any effect, then since the verdicts of terms of

imprisonment were within the proper, legal range, the verdicts were partly

authorized, and since no jury can cumulate sentences, they were partly

unauthorized. This is the precise situation that Art. 37.10(b) was enacted to

address.



      In all other respects, including the State Brief’s argument regarding

Loredo v. State, 47 S.W.3d 55 (Tex.App. – Houston [14th Dist.] 2001, pet. ref’d,

untimely filed), (SB, p. 19-20), the appellant respectfully refers the court to the

arguments in his opening brief.




                                        14
                           PRAYER FOR RELIEF

      Again, therefore, the appellant prays the Court reinstate the original

verdicts of seven and nine years’ imprisonment, or remand the matter to the

court of appeals for new analysis, or grant all relief the Court may deem

appropriate.

                                             Respectfully submitted,

                                             /s/ JOHN BENNETT
                                             John Bennett
                                             Post Office Box 19144
                                             Amarillo, Texas 79114
                                             Telephone: (806) 282-4455
                                             Fax: (806) 398-1988
                                             Email: AppealsAttorney@gmail.com
                                             State Bar No. 00785691
                                             Attorney pro bono for the Appellant




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this entire brief contains 2,790 words.

                                             /s/ JOHN BENNETT
                                             John Bennett


                                        15
                      CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the above Appellant’s

Brief has been served by the efile Texas system on John E. Meskunas, Esq.,

Assistant Criminal District Attorney for Tarrant County, and by email to him at

ccaappellatealerts@tarrantcounty.com, and on Lisa McMinn, Esq., State

Prosecuting Attorney, and by email to her at lisa.mcminn@spa.texas.gov, both

on January 8, 2015.

                                           /s/ JOHN BENNETT
                                           John Bennett




                                      16
