             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

       A LCALA, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       When must a trial judge refuse to accept a jury’s verdict and order it to continue

deliberating until it reaches another verdict? I conclude that a trial judge must refuse to

accept a jury’s verdict when it contains ambiguity that rises to the level that the jury’s intent

cannot be fairly discerned by the trial court. Under those circumstances, a trial court should
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proceed under Article 37.10(a) of the Code of Criminal Procedure, which requires a judge

to inform the jury about its failure to comply with the formal requirements for a verdict and

to reduce its verdict to a proper form. See T EX. C ODE C RIM. P ROC. art. 37.10(a). Applying

that article to this case, I would uphold the court of appeals’s judgments affirming the trial

court’s judgments that sentenced Reginald Nixon, appellant, to the prison terms assessed by

the jury in its subsequent verdicts that were reached after the trial judge rejected its original

verdicts. See Nixon v. State, Nos. 07–13–00389–CR, 07–13–00390–CR, 2014 WL 2553372,

at *2 (Tex. App.—Amarillo June 4, 2014, pet. granted). This Court’s decision to disregard

the subsequent verdicts and to reform appellant’s sentences to the lower prison terms in the

original verdicts, which are half of what the jury actually intended, is a windfall for appellant

that is not required under the law. I, therefore, respectfully dissent from this Court’s

judgments.

       The facts in this case are not in dispute. During punishment deliberations, the jury

asked the trial court whether the two sentences that it would be imposing would run

concurrently or consecutively. The judge declined to answer that question, instead instructing

the jury to continue deliberating by applying the law that it had previously been given. After

that, the jury filled out verdict forms indicating that appellant was to be sentenced to a prison

term of seven years for evading arrest and another prison term of nine years for burglary of

a habitation, but it also qualified those verdicts by indicating with an asterisk that the

sentences were to run consecutively. The trial court, however, could not order the sentences
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to run consecutively because the Texas Penal Code required that they run concurrently. See

T EX. P ENAL C ODE § 3.03(a). The trial court rejected the jury’s original verdicts, it instructed

the jury that any sentences would run concurrently as a matter of law, and it told the jury to

continue its deliberations. The jury then subsequently returned verdict forms sentencing

appellant to sixteen years for each offense.

       In rejecting the jury’s original verdicts and instructing it to continue deliberating, I

conclude that the trial court acted within the authority of Code of Criminal Procedure Article

37.10(a), which states,

       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.

See T EX. C ODE C RIM. P ROC. art. 37.10(a). This Court’s precedent is instructive in explaining

the meaning of Article 37.10(a). See id. This Court has observed that an informal verdict

is one that “does not meet the legal requirements of being . . . answered as authorized.” See

Jennings v. State, 302 S.W.3d 306, 309 (Tex. Crim. App. 2010). Article 37.10(a), this Court

has explained, “sets out the method to repair [such a verdict’s] informality.” Id. To meet its

legal requirements, a verdict should be unambiguous with respect to the jury’s intent. See

Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim. App. 1989). This Court has stated,

       A verdict must be certain, consistent, and definite. It may not be conditional,
       qualified, speculative, inconclusive, or ambiguous. An incomplete or
       unresponsive verdict should not be received by the court. It is not only within
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       the power, but it is the duty of the trial judge, to reject an informal or
       insufficient verdict, call to the attention of the jury the informality or
       insufficiency, and have the same corrected with their consent, or send them out
       again to consider their verdict.

Id. (citations omitted). Here, because the jury’s verdicts contained surplusage that called into

question the jury’s intent, the trial-court judge could have reasonably concluded that the

initial verdicts were ambiguous, and, on that basis, the court acted within its authority by

sending the jury out to clarify its verdicts.

       Not only must a trial court reject a verdict that is so ambiguous that the jury’s intent

cannot be fairly ascertained, but the trial court’s instructions to the jury on which it relies to

reach a verdict should inform it about the applicable law. Here, the trial court could properly

have provided the applicable law that the sentences in these cases would run concurrently.

See T EX. P ENAL C ODE § 3.03(a); Gordon v. State, 633 S.W.2d 872, 879 (Tex. Crim. App.

1982) (holding that the trial court’s truthful answer to the jury’s question inquiring whether

the sentences would run consecutively or concurrently was not improper); Haliburton v.

State, 578 S.W.2d 726, 729 (Tex. Crim. App. 1979) (same, and reasoning that the trial

court’s supplemental charge informing the jury that defendant’s sentences would run

concurrently was “a proper matter for jury consideration”). In Haliburton, this Court

explained the rationale underlying its holding as follows:

       The policy of the law should require juries to make informed and intelligent
       decisions based on every piece of information legally available. [To disallow
       the trial court’s response regarding concurrent sentences] would exclude
       information from the jury hoping that in their ignorance the jury would return
       a less severe punishment. Such a result is not supported by law or logic.
                                                                                            Nixon - 5

Haliburton, 578 S.W.2d at 729.

       Because the trial court could properly have informed the jury that the law required

concurrent sentences in this case and it had neglected to inform the jury as to that law even

after the jury sent a question asking about it, the jury was unaware of whether the sentences

would run consecutively or concurrently and of whether it or the trial court would decide the

matter of consecutive or concurrent sentencing. It would have been rational for the jury to

believe, therefore, that the matter of whether the sentences would run concurrently or

consecutively was within its power to decide. Under these circumstances, I conclude that the

jury’s asterisk reflects that the jury was attempting to communicate its desire to sentence

appellant to sixteen years in prison for each of the two offenses if the sentences were to run

concurrently and seven and nine years in prison for each of the offenses if the sentences were

to run consecutively.1 Thus, I conclude that the original verdicts did not meet the legal

requirements for verdicts because they were not “certain” or “definite,” in the sense that they

were “conditional” upon the sentences running consecutively. See Reese, 773 S.W.2d at 317.

Because of the ambiguity in the jury’s original verdicts, the court of appeals properly held

that the trial court was authorized to reject those verdicts and to order the jury to continue

deliberating until it reached proper subsequent verdicts in light of the applicable law. See

T EX. C ODE C RIM. P ROC. art. 37.10(a).


       1
       In any event, even if consecutive sentences had been permissible in this case, the matter of
whether sentences are to run concurrently or consecutively is one for a trial judge rather than a jury.
See TEX . CODE CRIM . PROC. art. 42.08 (vesting in trial court authority to order concurrent or
consecutive sentences).
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       Nothing about these facts suggests that the jury’s original verdicts were an attempt to

formally assess punishment that was not authorized by law for the offenses. I, therefore,

disagree that the outcome of this case is controlled by Article 37.10(b), which applies when

a jury returns a verdict that assesses a punishment not authorized by law. See T EX. C ODE

C RIM. P ROC. art. 37.10(b). Thus, this situation is unlike one in which the jury has formally

assessed an unauthorized punishment, such as imposing a jail term that exceeds the statutory

maximum. See Vance v. State, 970 S.W.2d 130, 132 (Tex. App.—Dallas 1998, no pet.)

(affirming trial court’s reformation, following motion for new trial, of defendant’s jail

sentence from 730 days to 365 days, where 365 days was maximum allowed by statute and

jury charge had erroneously instructed jury that it could impose sentence of 730 days).

       I would uphold the jury’s subsequent verdicts in this case that set appellant’s

punishment at sixteen years in prison for each offense. I would not reform appellant’s

punishment to the lower prison terms of seven years and nine years in prison, respectively.

Because this Court’s holding results in a windfall to appellant that is unnecessary under our

laws, I respectfully dissent.

Filed: February 24, 2016

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