          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

       Y EARY, J., filed a dissenting opinion in which K ELLER, P.J., joined.

                               DISSENTING OPINION

       The import of the Court’s holding today distills down to one sentence excerpted from

its opinion:

               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, insuring [Appellant] would be incarcerated for
       sixteen years—the jury intended that the cumulation serve a punitive purpose,
       and those additions should be considered punishment.

Majority Opinion at 13. It is not clear to me, however, that the meaning of the word

“punishment” in Article 37.10(b) is best determined by deferring to what the jury thought it
                                                                                   Nixon — 2

was accomplishing by its conditional approach to sentencing in this case. Just because a jury

has attempted to usurp a function institutionally assigned to the trial court during the

punishment phase of trial, it does not mean that it has necessarily “assesse[d] . . . punishment

that is not authorized by law for the offense,” for purposes of construing this mandatory

statute. To read the statutory mandate so sweepingly deprives trial courts of desirable

flexibility in handling the potential variety of anomalies that may crop up from time to time

in jury verdicts. I would hold, instead, that the jury’s purported punishment verdict in this

case was an “informal” one that triggered the application of Subsection (a) of Article 37.10,

not Subsection (b). However, because the trial court failed to adhere to the requirements of

Article 37.10(a), I would remand the cause to the court of appeals for further consideration.

Instead, the Court reforms the judgment to reflect concurrent seven- and nine-year sentences.

I respectfully dissent.

       The word “punishment” appears no fewer than five times in the first sentence of

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.

T EX. C ODE C RIM. P ROC. art. 37.10(b). The Court holds today that if the jury’s penalty phase

verdict in any way seems to “serve a punitive purpose” beyond what is expressly authorized

(presumably under Chapter 12 of the Penal Code), then it has “assessed” an unauthorized
                                                                                         Nixon — 3

“punishment,” and the trial court’s response must be governed by Article 34.10(b). Such a

construction of the statute is neither compelled nor, in my view, appropriate.

       The decision whether multiple sentences should be made to run concurrently or

consecutively does not constitute an “assess[ment]” of “punishment.” It is more in the nature

of an unavoidable administrative determination with respect to how “punishments” that have

already been “assesse[d]”—by whichever entity, judge or jury—shall be imposed.1 The

decision to cumulate sentences is certainly not regarded as an “increase” in the “maximum

punishment authorized for a particular offense” to which a defendant may find himself

susceptible. See Oregon v. Ice, 555 U.S. 160, 163 (2009) (the Sixth Amendment does not

prohibit a state from assigning fact finding that determines whether multiple sentences are

to run concurrently or consecutively to the trial judge rather than to the jury). The


       1
          I say “unavoidable” because, as long as trial courts have discretion whether to impose
sentences concurrently or consecutively, that decision must be made by some entity at some point.
Early on, trial courts in Texas were actually required by statute to cumulate separate sentences; they
had no discretion to do otherwise. See, e.g., Smith v. State, 34 Tex. Cr. R. 123, 123-24, 29 S.W. 774,
775 (1895) (“Nor is there anything in the alleged error of the court making the sentence in this case
cumulative of that pronounced against appellant in a preceding conviction. This action of the court
is expressly enjoined by statute, and therefore the court did not err in this respect. Code Cr. Proc.
[Article] 800 [1879].”); Cullwell v. State, 70 Tex. Cr. R. 596, 598, 157 S.W. 765, 766 (1913)
(quoting Article 862 of the 1911 Code of Criminal Procedure, which was identical to former Article
800). The Legislature revised the statute in 1919, however, to authorize trial courts to impose either
consecutive or concurrent sentences, at their untethered discretion. Acts 1919, 36th Leg., ch. 20, §
1, p. 25, approved Feb. 19, 1919 (amending Article 862 of the 1911 Code of Criminal Procedure).
See, e.g., Carney v. State, 573 S.W.2d 24, 27 (Tex. Crim. App. 1978) (“There is no ‘right’ to a
concurrent sentence; whether punishment will run concurrently or cumulatively is within the
discretion of the trial judge.”). That provision may presently be found in Article 42.08(a) of the Code
of Criminal Procedure, and it is echoed in Section 3.04(b) of the Penal Code. TEX . CODE CRIM .
PROC. art. 42.08(a); TEX . PENAL CODE § 3.04(b). Thus, trial judges in Texas have had the authority
to cumulate sentences from the beginning; and, since 1919, they have also had the authority to order
separate sentences to run concurrently.
                                                                                        Nixon — 4

“punishment” that has been “assess[ed]” remains the same: a separate term of confinement

in the penitentiary, of definite duration, for each discrete offense. In my view, a jury’s

punishment verdict that goes on to attempt to usurp the trial court’s function to decide how

to carry out the definite “punishment[s]” it has “assess[ed]” does not amount to the

“assess[ment]” of additional “punishment” so as to trigger Article 37.10(b).2 The Court cites

nothing to the contrary.

       I would construe the jury’s conditional penalty phase verdict in this case to be

“informal,” in the sense that it strayed from the “formal” verdict form the trial court gave it

at the conclusion of the jury charge. “A ‘verdict’ is a written declaration by a jury of its

decision of the issue submitted to it in the case.” T EX. C ODE C RIM. P ROC. art. 37.01.3 In our

modern universal practice, a “formal” verdict is typically the written form submitted to the

jury at the end of the jury charge, to be filled in as appropriate in keeping with the jury’s

“decision.” The present Code provision governing “informal” verdicts, like the definition of




       2
         I wonder whether the Court’s holding today—that cumulation of sentences constitutes an
additional “assess[ment]” of “punishment” (albeit punishment that the jury is not “unauthorized” to
mete it out)—might undermine our earlier pronouncement in Barrow v. State, 207 S.W.3d 377 (Tex.
Crim. App. 2006), that the Sixth Amendment right to a jury trial is not implicated? I would think the
Court would prefer to construe Article 37.10 in a way that avoids that constitutional can of worms.
       3
         See Berghahn v. State, 683 S.W.2d 697, 699 (Tex. Crim. App. 1984) (Clinton, J., dissenting
on original submission) (observing that “[o]ur 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 . . .’”). Indeed, going back at least as far as the 1879 Code of
Criminal Procedure, former Article 705 provided that “[a] verdict is a declaration by a jury of their
decision of the issues submitted to them in the case, and it must be in writing and concurred in by
each member of the jury.”
                                                                                             Nixon — 5

“verdict” itself, goes back to the earliest criminal codes in Texas.4 Of the various dictionary

definitions of the word “informal,” the one that seems to me to be the most natural fit, in the

context of the evident purpose of Article 37.10(a), is as follows: “Not done or made

according to a recognized or prescribed form; not observing forms; not according to order;

irregular; unofficial, disorderly.” 1 T HE C OMPACT E DITION OF THE O XFORD E NGLISH

D ICTIONARY: C OMPLETE T EXT R EPRODUCED M ICROGRAPHICALLY, at 1432 (Oxford

University Press 1971). Black’s definition is similar: “Not done or performed in accordance

with normal forms or procedures.” B LACK’S L AW D ICTIONARY, at 898 (10th ed. 2014). A

jury verdict at the punishment phase of trial that fills in the blanks on the supplied form as


       4
         The 1879 Code, echoing the so-called “Old Code” of 1856, broke the statutory proscription
into two segments, Articles 715 and 716. These read:

               ART . 715. If the jury find a verdict which is informal their attention shall be
       called to it, and, with their consent, the verdict may, under the direction of the court,
       be reduced to proper form.

                ART . 716. If the jury refuse to have the verdict altered they shall again retire
       to their 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.

Every succeeding code of criminal procedure up to the present time carried this provision forward,
with minor, non-substantive amendments. Article 37.10(a) presently reads:

               (a) 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.

TEX . CODE CRIM . PROC. art. 37.10(a).
                                                                                             Nixon — 6

appropriate, but then drops a footnote to indicate that the jury’s “decision” as so indicated

is a qualified one—contingent on some fact or circumstance over which the jury has no

interest or control—strikes me as the quintessential “informal” verdict according to these

dictionary definitions.5

        This is not to say that it would necessarily have been inappropriate for the trial court

simply to accept the punishments that the jury originally assessed—seven years’ confinement

for the burglary offense and nine years’ confinement for the evading arrest offense—as the

Court does today. But it could not do so, under the express terms of Article 37.10(a), without

first obtaining the consent of the jurors. Only if the jury had refused to relinquish its

footnoted qualification upon its assessment of the punishments for the respective offenses

would it have been appropriate for the trial court to “again retire [it] to its room to deliberate”

further. T EX. C ODE C RIM. P ROC. art. 37.10(a). Had the jury, upon inquiry, explicitly

consented to the seven- and nine-year sentences and withdrawn its attempted qualification,



        5
          Prior case law defines “informal” consistently with these dictionary definitions. “A verdict
. . . may not be conditional, qualified, speculative, inconclusive, or ambiguous.” Eads v. State, 598
S.W.2d 304, 306 (Tex. Crim. App. 1980). When a jury verdict is “conditional” or “qualified,” we
have applied what is now Article 37.10(a) to hold that “it is the duty of the trial judge to reject [it as]
an informal or insufficient verdict, call to the attention of the jury the defect, informality or
insufficiency, and either have the same corrected with their consent, or retire them again to consider
of their verdict.” Id. It is true that Eads preceded the addition of Article 37.10(b). And when a jury
verdict unambiguously, unconditionally, and unqualifiedly purports to assess a punishment that the
jury has no power to impose, Section (b) ought now to apply. Here, however, the jury assessed
punishments that were wholly within its power—but then qualified these assessments. At the time
at which the jury first returned this conditional, quintessentially “informal” verdict, the trial court
could not have known whether, absent that attempted qualification, the jury would necessarily have
assessed different punishments within the prescribed range. It should have followed the dictates of
Article 37.10(a) to address this informality.
                                                                                         Nixon — 7

I would agree that the Court’s ultimate disposition today would be the correct one.

       Thus, while I agree that the record demonstrates that the trial court committed error,

the error was in failing to follow the dictates of Section (a) of Article 37.10, not Section (b).

How would I dispose of the case in light of this error? I would remand the cause to the court

of appeals to address four remaining issues in the first instance—or at least as many of these

four issues as it should find necessary to dispose of the case. First and second, was the trial

judge’s error—specifically, failing to adhere to Article 37.10(a)’s requirement that he seek

the jury’s consent to abandon its qualification of its punishment verdict before returning it

to deliberate—subject to ordinary principles of error preservation, and if so, were Appellant’s

complaints at trial sufficient to preserve the error under Rule 33.1 of the Texas Rules of

Appellate Procedure?6 T EX. R. A PP. P. 33.1. Third and fourth, was the error subject to a harm

analysis, and if so, does the record reveal that the error is reversible under the appropriate

provision of Rule 44.2 of the Texas Rules of Appellate Procedure? T EX. R. A PP. P. 44.2. I




       6
          An appellate court may not reverse a conviction without first addressing any issue of error
preservation that might be presented by the record. Gipson v. State, 383 S.W.3d 152, 159 (Tex.
Crim. App. 2012). When first asked how he would have the trial court respond to the jury’s
conditional verdict, Appellant requested the trial court to “instruct them to strike the surplusage on
their verdict and return it in proper form.” (Emphasis added.) He did not ask the trial court to simply
reform the verdict on its own, under the terms of Article 37.10(b). Rather, his request for the trial
court to have the jury return a verdict in the “proper form” more closely resembles the procedure
spelled out in Article 37.10(a)—except that it would have had the trial court skip the first step of
asking the jury for its consent to reduce the verdict “to the proper form.” Later, the Appellant simply
asked for a mistrial. But he ultimately “implore[d] the Court to accept the original verdict as
presented in proper form.” (Emphasis added.) Again, however, he failed to suggest that the trial
court first obtain the jury’s consent. Whether this should be found to amount to a procedural default
is a question I would leave to the court of appeals to resolve in the first instance.
                                                                                   Nixon — 8

offer no opinion how any of these issues ought to be resolved and would urge the court of

appeals to accept additional briefing from the parties, at its discretion.

       Because the Court does not remand the cause for these additional inquiries, but

persists instead in finding error under Article 37.10(b), and then correcting that error itself

by reforming the judgments, I respectfully dissent.




FILED:        February 24, 2016
PUBLISH
