Opinion filed August 13, 2020




                                      In The

        Eleventh Court of Appeals
                                   __________

                                No. 11-18-00171-CR
                                    __________

      ELLIE JEAN LARA MONTOYA WILLIAMS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                              Ector County, Texas
                      Trial Court Cause No. C-17-0812-CR


                                   OPINION
      An Ector County jury found Appellant, Ellie Jean Lara Montoya Williams,
guilty of two counts of injury to a child by omission causing serious bodily injury.
See TEX. PENAL CODE ANN. § 22.04 (West 2019). The jury assessed Appellant’s
punishment for each count at confinement in the Institutional Division of the Texas
Department of Criminal Justice for ten years. The trial court sentenced Appellant
accordingly and ordered that the sentences run concurrently. In her sole issue,
Appellant argues that the trial court abused its discretion when it denied Appellant’s
motion for mistrial after the jury returned an ambiguous verdict. We affirm.
                                 Background Facts
      The victim in both counts is Appellant’s six-year-old daughter, R.T. In
March 2017, Appellant lived with her boyfriend, their three children, and R.T. After
coming to believe that R.T. had burned her half brother with hot water, Appellant’s
boyfriend punished R.T. by holding R.T.’s hand under hot water, which resulted in
significant burns to R.T.’s hand. Appellant was present when R.T.’s hand was
burned, but she failed to prevent her boyfriend from burning R.T. and subsequently
failed to provide or seek any medical care for R.T.
      Appellant was charged by indictment with two counts of injury to a child by
omission causing serious bodily injury. Count I focused on Appellant’s failure to
prevent Appellant’s boyfriend from burning R.T. Count II focused on Appellant’s
failure to seek medical attention for R.T. Appellant pleaded not guilty to both
counts.
      At trial, one of the contested issues was whether R.T.’s injuries constituted
serious bodily injury, as charged in the indictment, or simply bodily injury, which
would make Appellant guilty of the lesser included offense of injury to a child by
omission causing bodily injury. See PENAL § 22.04(f). The trial court’s original jury
charge on guilt/innocence contained an error.         With regard to Count II, the
application section of the jury charge instructed the jury to sign Verdict Form C if
they found Appellant guilty of the charged offense of injury to a child by omission
causing serious bodily injury. However, on its face, Verdict Form C stated that the
jury found Appellant guilty “of the lesser included offense of Injury to a Child by
Omission” (emphasis added).
      When the jury initially returned from deliberations on guilt/innocence, the
foreperson had signed Verdict Form A, finding Appellant guilty of injury to a child
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by omission as charged in Count I of the indictment, and Verdict Form C, which
contained the error. After the foreperson read the two signed verdict forms, the trial
court noticed the discrepancy and called both parties to the bench. The trial court
and the attorneys then had a conversation outside of the hearing of the court reporter.
The trial court then sent the jury to recess in the jury room.
      Outside the presence of the jury, Appellant moved for a mistrial. While the
parties were presenting their arguments concerning the motion for mistrial, the jury
sent out a note that stated: “We, the Jury, are unaware of whether there is some
confusion as to our findings or if the wrong forms were signed. We, the Jury, found
the defendant guilty on BOTH Counts 1 & 2.” The State then argued that, because
there was a clear error on Verdict Form C, the trial court should amend the charge
and send the corrected version back to the jury for further deliberation. Appellant’s
counsel objected to “sending any corrected form back” and made multiple requests
to have the jury polled. The trial court denied Appellant’s requests to poll the jury
and overruled Appellant’s motion for mistrial.
      The trial court then brought the jury back and explained that the original
verdict forms were incorrect and that the trial court had prepared amended verdict
forms. The trial court read the amended verdict forms aloud to the jury and then sent
the jury back to deliberate again. When the jury returned, the foreperson had signed
the amended Verdict Form A and amended Verdict Form C, finding Appellant guilty
of both counts of injury to a child by omission causing serious bodily injury. The
trial court then polled the jury, and all twelve jurors answered in the affirmative for
both counts. The trial court then accepted and received the verdicts.
                                       Analysis
      Appellant argues that the trial court abused its discretion when it denied
Appellant’s motion for mistrial and sent the jury back to deliberate with an amended
charge.
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      A mistrial is a device used to halt trial proceedings when an error is so
prejudicial that expenditure of further time and expense would be wasteful and futile.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is an
appropriate remedy in “extreme circumstances” and is reserved for a narrow class
of highly prejudicial and incurable errors. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004).
      When a party moves for mistrial, the scope of appellate review is limited to
whether the trial court erred in not taking the most serious action of ending the trial.
Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). We review a trial court’s
decision on a motion for mistrial using an abuse-of-discretion standard of review.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). An appellate court
must “view the evidence in the light most favorable to the trial court’s ruling and
uphold the trial court’s ruling if it was within the zone of reasonable disagreement.”
Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We do not
substitute our judgment for the trial court’s judgment. Id. Instead, “we decide
whether the trial court’s decision was arbitrary or unreasonable.” Id. “Thus, a trial
court abuses its discretion in denying a motion for new trial only when no reasonable
view of the record could support the trial court’s ruling.” Id. (citing Charles v. State,
146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).
      In this case, the trial court did not err in denying Appellant’s motion for
mistrial. “A verdict must be certain, consistent, and definite. It may not be
conditional, qualified, speculative, inconclusive, or ambiguous.” Reese v. State, 773
S.W.2d 314, 317 (Tex. Crim. App. 1989). It is the trial judge’s duty to reject an
insufficient, unresponsive, incomplete, or informal verdict, call the jury’s attention
to the problem, and have the problem corrected either with the jury’s consent or by
sending them out to reconsider the verdict.          TEX. CODE CRIM. PROC. ANN.
art. 37.10(a) (West 2006); Reese, 773 S.W.2d at 317.
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      Here, because of the inconsistencies between the instructions in the jury
charge and the language of the verdict forms, the trial court did not err in amending
the verdict forms and sending the jury back to deliberate based on the amended
charge. In light of the conflicting instructions, the original verdict forms were
ambiguous, and the trial court in this case adhered to its duty to reject such verdicts.
See Reese, 773 S.W.2d at 318. Moreover, the record shows that the jury was
confused by the instructions and the numerous verdict forms. See id. at 317–18. In
their note to the trial court, the jury stated that it was unaware “if the wrong forms
were signed” but that the jury found the defendant “guilty on BOTH Counts 1 & 2.”
Additionally, when the jury first returned from deliberations, the foreperson had only
signed Verdict Form A and Verdict Form C. If the jurors had intended on finding
Appellant guilty of only the lesser included offense, the foreperson would have had
to also sign Verdict Form D, which would have shown that the jury found Appellant
not guilty of the greater offense of injury to a child causing serious bodily injury.
Only then would the jurors have deliberated as to whether Appellant was guilty of
the lesser included offense. Accordingly, the trial court was correct in amending the
ambiguous verdict forms and sending the jury back to deliberate based on the
amended jury charge.
      Appellant also argues that the trial court erred in failing to poll the jury when
the jury returned the original, albeit ambiguous, verdict forms.
      Article 37.04 of the Texas Code of Criminal Procedure provides for the
reading and entry of the jury’s verdict by the trial court. CRIM. PROC. art 37.04.
Under Article 37.04, the verdict is entered into the minutes of the court if it is in
proper form, no juror dissents, and neither party requests a poll of the jury. Id.
Article 37.05 of the Texas Code of Criminal Procedure establishes the parties’ right
to have the jury polled and governs the process for entry of the jury’s verdict when
a poll is conducted. Id. art. 37.05 (West Supp. 2019). Under Article 37.05, each
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juror is asked if the verdict is his or her verdict. Id. If each juror answers
affirmatively, then the verdict is entered into the minutes of the court. Id. If a juror
answers negatively, the jury will retire again to reconsider the verdict. Id. Polling
the jury is used to “ensure the unanimity of the jury verdict by establishing that each
juror agrees with the verdict as announced.” Jones v. State, No. 01-10-00821-CR,
2011 WL 4612655, at *5 (Tex. App.—Houston [1st Dist.] Oct. 6, 2011, pet. ref’d)
(mem. op., not designated for publication).
      Here, the trial court refused to initially poll the jury despite Appellant’s
numerous requests. However, because of the ambiguities in the jury charge, the
verdict was not final, and thus, the request to poll the jury was premature. Dudley v.
State, No. 12-11-00046-CR, 2012 WL 690069, at *3 (Tex. App.—Tyler Feb. 29,
2012, no pet.) (mem. op., not designated for publication).
      Even assuming that the trial court should have polled the jury upon
Appellant’s initial requests, Appellant was not harmed by the trial court’s failure to
do so. A trial court’s failure to poll the jury is nonconstitutional error. Jones, 2011
WL 4612655, at *6. Nonconstitutional errors require reversal only if the error could
have impacted Appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Neither
Appellant nor the State has any formal burden to show harm or harmlessness under
Rule 44.2(b). Rather, it is the reviewing court’s duty to assess harm after conducting
a proper review of the record to determine the influence the error had in light of all
the other evidence. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016).
      Not granting Appellant’s initial request to poll the jury did not affect
Appellant’s substantial rights. The original jury charge contained an erroneous
verdict form for Count II. When the trial court discovered this error, it excused the
jury from the courtroom and discussed the error with the parties in an effort to craft
a remedy for the error. In this regard, the trial court bears the ultimate responsibility
for the accuracy of the court’s charge. Delgado v. State, 235 S.W.3d 244, 249 (Tex.
                                            6
Crim. App. 2007).           Because of the error in the verdict form, Appellant was not
harmed by the trial court’s decision to deny Appellant’s request to poll the jury prior
to the correction of the error and the jury’s resumption of deliberations.
        As stated above, we find that the initial requests to poll the jury were not
timely. Moreover, when the jury returned from deliberating the corrected jury
charge, the trial court polled the jury, and the jury affirmed that the verdict on both
counts was unanimous. Accordingly, we overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


August 13, 2020
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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