              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-0261-09

                      DELVETRA LASHERL JENNINGS, Appellant

                                                   v.

                                     THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SEVENTH COURT OF APPEALS
                              HALE COUNTY

                K ELLER, P.J., filed a concurring opinion.


        Relying upon a 1934 case and a 1940 case, the Court holds that “a trial judge need not attach

a verdict form to the jury charge, but if he does so . . . . [t]he verdict form then becomes a part of the

jury charge.”1 But the Court misunderstands the language in these cases and the historical practice

they addressed. In both Riley and Pieratt, the body of the jury charge included instructions regarding




        1
          Court’s op. at 7, 7 n.15 (citing Riley v. State, 127 Tex. Crim. 267, 75 S.W.2d 880 (1934);
Pieratt v. State, 141 Tex. Crim. 45, 146 S.W.2d 997 (1940)).
                                                                  JENNINGS CONCURRENCE – 2
the form that the verdict should take.2 But, as was the practice then, the jury wrote out its own

verdict on a separate piece of paper.3 The “suggested form” that was in the body of the jury charge

was merely a guide for the jury.4 The jury was not supposed to write on it.5 It was not a “verdict

form,” as we know it today, in which the jury fills in the blanks, circles a “yes” or “no” option, or

simply signs to acknowledge its verdict. Other cases cited by the Court are in accordance with Riley

and Pierratt regarding the use of such guides to the jury in writing its own verdict.6

        Contrary to the implication in the Court’s opinion, the issue before us was not even remotely

considered in Riley or in Pierratt, much less decided. And given that the “suggested form” in those

cases was actually included within the body of the charge, those cases have little, if any, bearing on

        2
        Riley, 127 Tex. Crim. at 268-69, 75 S.W.2d at 880-81; Pieratt, 141 Tex. Crim. at 48-49,
146 S.W.2d at 999.
        3
         Riley, 127 Tex. Crim. at 268, 75 S.W.2d at 881 (“Comparison demonstrates that the verdict
rendered by the jury literally followed the suggested form contained in the charge.”)(emphasis
added); Pieratt, 141 Tex. Crim. at 48, 146 S.W.2d at 999 (“The court prepared his charge in which
he gave to the jury two forms of a verdict which they might use as a guide in writing their verdict
according to their finding . . . .[T]he jurors . . . wrote their verdict upon a separate slip of paper and
returned it into court together with the charge.”)(emphasis added).
        4
            See this opinion, footnote 3.
        5
           See Pieratt, 141 Tex. Crim. at 48-49, 146 S.W.2d at 999 (discussing, as an irregularity, the
fact that someone had filled “$50.00” in the blank provided in a “form of the verdict” contained in
the jury charge).
        6
          See Williams v. State, 24 Tex. Ct. App. 637, 667, 7 S.W. 333, 336 (1888) (the trial court’s
charge “prescribes the forms of verdicts of guilty of murder in the first and second degrees, but omits
to prescribe any form for a verdict of guilty of manslaughter, or for a verdict of not guilty. In this
respect the charge is imperfect, but perhaps not materially so. It is not essential to the sufficiency of
the charge that it should instruct the jury in the forms of verdicts which may be rendered by them,
though it is very proper, we think, to do so”)(emphasis added); Oates v. State, 51 Tex. Crim. 449,
454-55 (1907)(“There is another exception to the charge to the effect that it prescribes only a form
of verdict for murder in the first degree, and omits to give any form with reference to acquittal or for
any minor offense. In this respect the charge is imperfect. While it may not be materially so, yet it
should be avoided upon another trial.”)(emphasis added);
                                                                  JENNINGS CONCURRENCE – 3
the question of whether the verdict forms that were attached to the charge in this case should be

considered part of the charge.

        But even if I were to assume that verdict forms are part of the jury charge, there is another

problem with the Court’s opinion. The Court discusses at great length an issue upon which we did

not grant review, namely, whether the charge in this case was erroneous. The Court seems to believe

that this issue was decided in Oates and Williams, because it cites to those cases for the proposition

that it is error to submit a verdict form that omits any “guilty” or “not guilty” option that is available

to the jury.7 This citation is misleading for three reasons. First, these cases did not include modern-

day verdict forms8 and so, like Riley and Pierratt, they are not on point. Second, in each case the

charge failed to prescribe a form for a verdict of “not guilty”of any offense at all, including the

charged offense.9 Third, the question of what options are available to the jury is at the heart of the

State’s contention that there was no error in this case. The Court’s analysis totally ignores the State’s

arguments regarding this issue.

        There is nothing, nothing, nothing, in the statutes that says that a not-guilty verdict option

must be provided for lesser offenses. Nevertheless, the Court quotes from article 37.07, which deals

not with lesser-included offenses, but with multi-count indictments and consolidated offenses. After

quoting the statute, the Court says, “Thus, the trial judge is required to instruct the jury that it may

return either a ‘guilty’ or ‘not guilty’ verdict to all counts of the charged offenses and to any lesser-



        7
         Court’s op. at 7, 7 n.17 (citing Oates v. State, 103 S.W. 859 (Tex. Crim. App. 1907);
Williams v. State, 7 S.W. 333 (Tex. Crim. App. 1888)).
        8
            See this opinion, footnote 6.
        9
            See id.
                                                                   JENNINGS CONCURRENCE – 4
included offenses that are submitted to the jury.”10 But “thus” is not a magic wand, and waving it at

article 37.07 does not turn it into a statute about lesser-included offenses. The Court has badly

misconstrued the cases it cites and the statutes it relies upon.

         In footnote 29, the Court suggests that the State agreed at oral argument that there was error

in the verdict form and that a not guilty option must be submitted for each lesser-included offense

submitted to the jury. Of course, a concession by the State does not bind this Court on issues of

law.11

         But in any event, I think the Court misinterprets the State’s oral argument. Even at oral

argument, the State proceeded to argue, based on the language of article 37.08 of the Code of

Criminal Procedure and on federal due-process cases, that there was no error in the jury charge.

When asked whether that argument defied logic, the State’s attorney replied that he did not think so

because “if you find someone not guilty of the greater offense then that takes care of everything.”

Judge Keasler then commented that the jury charge usually instructs the jury that if it does not

believe or has a reasonable doubt with respect to the primary offense, then it will acquit the

defendant of the primary offense and “next consider” whether he is guilty of the lesser-included

offense. So, Judge Keasler explained, an acquittal of the primary offense occurs before the lesser-

included offense is considered. At that point, the State’s attorney replied, “Ok, explained that way,

that makes sense to me. I guess I should move on and talk about whether, if that is an error, whether

it would create egregious harm, and I don’t think it does.” Judge Womack then asked whether the

court of appeals addressed egregious harm, the State replied that it had not, and both agreed that


         10
              Emphasis added.
         11
              Long v. State, 931 S.W.2d 285, 289 (Tex. Crim. App. 1996).
                                                                JENNINGS CONCURRENCE – 5
there was nothing to review. Judge Keasler then said, “So they didn’t consider whether there is

error, and so, it would probably be – wouldn’t it be appropriate for us to send it back and say,

‘Address whether or not there is error, and if there is error whether or not there is egregious harm.’”

The State’s attorney replied, “I think that would be entirely appropriate.” Judge Cochran then

responded, “We have everyone in agreement.”

       So, what “everyone agreed” to was not that there was error, but that Almanza applied to jury

verdict forms, that the court of appeals had not addressed whether there was error in the charge, that

the court had not addressed the issue of egregious harm, and that a remand for the court of appeals

to address those issues would be appropriate. Contrary to this consensus, however, the Court has

taken upon itself the task of deciding error when it has not yet been decided below.

       The State’s acknowledgment that Judge Keaslser’s explanation (about an acquittal of the

lesser-included offense occurring first) “makes sense” is not a concession that there was error in this

case. But even if it were viewed as such, those statements do not mean that the State was conceding

that a “not guilty” option must be offered for every offense submitted in the charge. In fact, Judge

Keasler discussed a different method of submitting offenses, in which verdict forms for guilty for

the greater offense and lesser-included offenses are submitted along with a general “not guilty”

verdict form submitted at the end: “Normally, at the bottom, whatever the last one of them is you

would have, “We the jury find the defendant ‘not guilty’ period – is the final one that almost

universally is really used.” The State’s attorney agreed with this statement and said, “And the

substantive part of the [jury charge] says not guilty of any offense. And I think a verdict form stating

that would be appropriate as well.” But this “almost universal” method of submitting verdict forms

would be prohibited under the Court’s discussion of error.
                                                              JENNINGS CONCURRENCE – 6
       The court of appeals did not address the issue of error because it held that appellant failed

to preserve her jury-charge complaint for appeal. This Court is returning the case to the court of

appeals anyway. Rather than discuss a contested issue that is not before us, I would simply remand

for a determination of whether there is error and, if necessary, for a harm analysis under Almanza.

Filed: January 27, 2010
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