      IN THE COURT OF CRIMINAL APPEALS
                  OF TEXAS
                           NO. PD-0967-17



               PETER ANTHONY TRAYLOR, Appellant

                                    v.

                         THE STATE OF TEXAS

      ON STATE’S PETITION FOR DISCRETIONARY REVIEW
          FROM THE THIRTEENTH COURT OF APPEALS
                      COLLIN COUNTY

     N EWELL, J., delivered the opinion for a unanimous Court.

     During Appellant’s trial for first-degree burglary with a deadly

weapon, the jury sent out a note stating that it unanimously agreed that

Appellant was not guilty of the offense. However, the jury also indicated

in this note that it was deadlocked on the issue of guilt for the lesser-

included offense of burglary without a deadly weapon. The trial court

instructed the jury to keep deliberating and ultimately declared a mistrial
                                                                              Traylor – 2

when the jury could not reach a unanimous decision. This appeal requires

us to decide whether the jury’s initial note was a final verdict of acquittal

on the charged offense. Appellant argues that it was, and therefore his

conviction at his second trial violates the Double Jeopardy Clause. We

disagree.

                                   I. Background

     The relevant facts here are undisputed. Appellant was charged with

first-degree burglary of a habitation. The indictment alleged that

Appellant intentionally and knowingly entered his ex-mother-in-law’s

habitation without her consent and committed an aggravated assault

against her.1 At Appellant’s first trial, the jury was charged on both first-

degree burglary (the charged offense) and second-degree burglary (a

lesser-included offense). The only difference between the two offenses

was that the jury did not have to find that Appellant used a deadly

weapon in order to convict him of second-degree burglary.

     About four hours into deliberations, the trial court received a phone

call from the jury stating that it was deadlocked.                   In response (and

without objection from the attorneys), the trial court sent the jury a note




     1
         Traylor v. State, 534 S.W .3d 667, 671 (Tex. App.— Corpus Christi 2017).
                                                               Traylor – 3

stating: “Without indicating whether your vote is guilty or not guilty,

please indicate in the spaces provided below the number of jurors voting

one way or the other on the guilt/innocence questions.” The jury wrote

back stating that there were 12 votes for not guilty for the charged

offense, and 5 votes for guilty and 7 votes for not guilty for the lesser-

included offense.    The trial court instructed the jury to continue

deliberating.

     The jury deliberated for another hour and then recessed for the

night. The following morning, the jury deliberated for another two-and-a-

half hours. The jury then sent the trial court another note stating: “The

Jurors are at an impasse with 2 jurors for ‘not guilty’ and 2 for ‘guilty’

who have stated they will not change their position. . . . The vote overall

at this time is: 8 not guilty [and] 4 guilty.” The State then requested a

mistrial; Appellant objected and requested an Allen instruction.     After

determining that further deliberations would be futile, the trial court

declared a mistrial. Five months later, Appellant was re-tried for first-

degree burglary, and the jury found him guilty. The trial court sentenced

Appellant to 20 years’ imprisonment.

     Appellant appealed to the Thirteenth Court of Appeals, arguing that

the trial court abused its discretion by granting a mistrial over his
                                                                                    Traylor – 4

objection without manifest necessity and that doing so amounted to a

double jeopardy violation.              Relying primarily upon the United States

Supreme Court decision in Blueford v. Arkansas, the court of appeals

agreed with Appellant that a double jeopardy violation had occurred.2

According to the court of appeals, the jury foreman’s report on the jury’s

vote count amounted to an informal verdict of acquittal of the first-degree

burglary.3       This, in turn, resulted in a jeopardy bar against Appellant’s

subsequent trial for that charge.4                 The State asks us to review this

decision of the court of appeals, arguing that the court of appeals

misapplied Blueford.5 We will reverse.

        II. The Jury Note Was Not a Final Verdict of Acquittal



       2
           Id. at 681 (citing Blueford v. Arkansas, 566 U.S. 599 (2012)).

       3
           Id. at 680.

       4
         Id. at 681. W hen addressing the appropriate rem edy for the violation, the court of
appeals ultim ately agreed with Appellant that the trial court had exercised sound discretion in
declaring the m istrial because the jury was genuinely deadlocked regarding whether Appellant
com m itted second-degree burglary. Id. at 683.

       5
         Neither party challenges the court of appeals’ decision to reach this issue in its opinion.
See, e.g., Pena v. State, 191 S.W .3d 133, 138 (Tex. Crim . App. 2006) (noting that a court of
appeals has jurisdiction to address unassigned error, but that it m ust first assign the error and
require briefing from the parties before expanding the reach of a constitutional provision in a
m anner that threatens to overturn the acts of another branch of governm ent); Bigon v. State,
252 S.W .3d 360, 369 (Tex. Crim . App. 2008) (“In the case of a double-jeopardy violation, the
issue m ay be addressed as an unassigned error when the violation is apparent from the face
of the record.”).
                                                                                      Traylor – 5

       The Double Jeopardy Clause protects against multiple prosecutions

for the same offense.6             The Supreme Court of the United States has

stated that the bar on re-trials after acquittal is “[p]erhaps the most

fundamental rule in the history of double jeopardy jurisprudence.” 7 A trial

may be discontinued, however, without barring a subsequent trial for the

same offense when “particular circumstances manifest a necessity” to

declare a mistrial.8 A jury’s inability to reach a verdict is a “classic basis”

for establishing such a necessity.9

       The court of appeals held that Appellant’s subsequent trial for first-

degree burglary was barred after the trial court declared a mistrial in the

first trial because the jury’s note regarding its deliberations amounted to

a verdict of acquittal.10             The United States Supreme Court recently

rejected a similar claim under similar circumstances in Blueford v.

Arkansas. According to the court of appeals, the facts of this case are

significantly distinguishable from those in Blueford. We disagree.



       6
         U.S. C O NST . am end. V (“No person shall . . . be subject for the sam e offense to be twice
put in jeopardy of life or lim b . . . .”).

       7
           U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

       8
           Blueford, 566 U.S. at 609 (citing W ade v. Hunter, 336 U.S. 684, 690 (1949)).

       9
           Id. (citing Arizona v. Washington, 434 U.S. 497, 509 (1978)).

       10
            Traylor, 534 S.W .3d at 680.
                                                                                     Traylor – 6

       For a jury note regarding the jury’s inability to reach a verdict to bar

a subsequent prosecution after a mistrial, there must be some indication

that the jury had finally resolved to acquit the defendant.11 In Blueford,

the Supreme Court determined whether a jury reached a final verdict of

acquittal for capital murder and first-degree murder.12 A few hours into

deliberations, the jury indicated to the trial court that it was deadlocked.13

The court then issued an Allen instruction, which is a supplemental charge

sometimes given to a deadlocked jury that emphasizes the importance of

reaching a verdict.14 The jury then continued deliberating.

       A half hour later, the jury told the court it was still deadlocked.15

The trial court then asked the foreperson what the vote count was on

each specific charge. The foreperson stated that the jury was unanimous

against guilt on both capital murder and first-degree murder but




       11
            Blueford, 566 U.S. at 605–06.

       12
            Id.

       13
            Id. at 603.

       14
           Id. (citing Allen v. United States, 164 U.S. 492, 501–02 (1896)); Barnett v. State, 189
S.W .3d 272, 277 n.13 (Tex. Crim . App. 2006).               The Allen instruction em phasizes the
im portance of reaching a verdict by rem inding “the jury that if it is unable to reach a verdict,
a m istrial will result, the case will still be pending, and there is no guarantee that a second jury
would find the issue any easier to resolve.” Barnett, 189 S.W .3d at 277 n.13.

       15
            Blueford, 566 U.S. at 603.
                                                                                 Traylor – 7

deadlocked on manslaughter.16                The court then issued another Allen

instruction, and the jury continued deliberating.17 A half hour later, the

jury again returned to the courtroom, indicating that they were still

deadlocked. The court then declared a mistrial, and the defendant was

later re-tried on all charges.18

     The Supreme Court held that the foreperson’s verbal report of the

vote count was not a final verdict of acquittal because it lacked the

“finality necessary to constitute an acquittal on the murder offenses.” 19

The Supreme Court reasoned that the vote count lacked finality because:

(1) the jury was still deadlocked on the lesser-included offense; (2) the

jury continued deliberating after the reported vote count; (3) the

foreperson gave no further indication that the jury was still unanimous;

and (4) nothing in the jury instructions prohibited the jurors from

revisiting the prior vote.20 Because the verbal exchange was not a final

resolution of the defendant’s guilt, the Supreme Court held that the




     16
          Id. at 603–04.

     17
          Id. at 604.

     18
          Id.

     19
          Id. at 606 (“The foreperson’s report was not a final resolution of anything.”).

     20
          Id. at 606–07.
                                                                Traylor – 8

Double Jeopardy Clause did not prohibit the second trial.21

     Here, the court of appeals correctly noted some similarities with

Blueford.       First, like the foreperson in Blueford, the foreperson here

reported to the trial court that the jurors were unanimous against guilt on

the charged offense (here, first-degree burglary) but were deadlocked

against guilt on the lesser-included offense (here, second-degree

burglary).22 Second, in both Blueford and this case, the jury continued

deliberating after the foreperson reported the vote count to the trial

court.23 And lastly, in both Blueford and this case, the jury instructions

did not prohibit the jurors from reconsidering their votes.24

     The court of appeals, however, found this case distinguishable from

Blueford based on the following verbal exchange that took place the day

after the reported vote count:

     [Trial Court]: I received your note last night indicating that
     the jury did not believe that Mr. Traylor was guilty of the
     [charged] offense, but that there was a disagreement
     amongst the jurors in the lesser included offense and that you
     were hung up on that issue and that the vote on that
     apparently changed by only one juror from last night into


     21
          Id. at 606.

     22
          Traylor, 534 S.W .3d at 679.

     23
          Id.

     24
          Id.
                                                                 Traylor – 9

      today, even after deliberating for almost three hours today.
      So the note that I received . . . is that the jury is hopelessly
      deadlocked; is that correct?

      [Foreperson]: I use[d] the word impasse, but I suppose
      deadlock is probably the legal term.

According to the court of appeals, that verbal exchange establishes a final

resolution of Appellant’s guilt as to first-degree burglary.25 We disagree.

      As in Blueford, the foreperson here gave no indication that the jury

was still unanimous on the charged offense in response to the trial court’s

question. In fact, shortly before the jury foreman indicated that the jury

was at an impasse, the following exchange took place:

      [Trial court]: Did you fill out any of the certificates on the
      Court’s Charge?

      [Foreperson]: No, sir, because we have no – no decision.

This unambiguously shows that the jury had not made a final decision on

any of the charges. If the jury intended for its vote count from the day

before to be a final verdict, then it would have clearly stated so. But it

did not because, as the foreperson conveyed, the jury had not made a

final decision.

      The court of appeals also failed to fully consider the jury’s continued




      25
           Id. at 680.
                                                                                 Traylor – 10

deliberation after the reported vote count. These continued deliberations

factored heavily into the Supreme Court’s holding in Blueford—even

though the jury continued deliberating for only a half hour more—because

it gave the jury the opportunity to reconsider its prior vote.26 Here, the

jurors continued deliberating for another three-and-a-half hours after the

reported vote count, giving them ample time to reconsider their prior

vote.        Further, the vote count changed on the lesser-included offense

from the time the jury sent the note to the time of the verbal exchange

the following day. If the vote on the lesser-included offense changed, the

vote on the charged offense could have changed too.27

        We agree with the State that the jury note here lacks “the finality


        26
         Blueford, 566 U.S. at 606, 608 (“The fact that deliberations continued after the report
deprives that report of the finality necessary to constitute an acquittal on the m urder
offenses.”).

        27
            The jury here was also less restrained than the Blueford jury on its ability to
reconsider its vote on the charged offense because Texas is not an acquittal-first jurisdiction
while Arkansas is. Arkansas requires a jury to “com plete its deliberations on a greater offense
before it m ay consider a lesser.” See Blueford, 566 U.S. at 612 (Sotom ayor, J., dissenting).
Yet, the Suprem e Court still rejected the argum ent that the jury note in Blueford indicated a
final resolution of the greater offense even though the jury instructions in Arkansas required
the jury to reach a final decision on the charged offense before considering any lesser-included
offense. Id. at 607–08.
        In contrast, Texas leaves it to the jury’s discretion to decide which parts of the jury
charge it considers first. Barrios v. State, 283 S.W .3d 348, 352 (Tex. Crim . App. 2009). Unlike
in Blueford, the jury here was not told that it could not consider the second-degree burglary
unless it first acquitted Appellant of first-degree burglary. The jury was instructed: “Unless you
so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt that
the defendant is guilty of [first-degree burglary], or if you cannot agree, you will next consider
whether he is guilty of [second-degree burglary] as instructed below.” Thus, there is even less
indication that this jury reached a final decision on the greater offense than what was present
in Blueford.
                                                                                     Traylor – 11

necessary to constitute an acquittal” on the first-degree burglary

offense.28 We disagree with the court of appeals that the facts presented

here are significantly distinguishable from Blueford. We hold that the jury

note in question did not indicate that the jury had finally resolved to

acquit Appellant of the first-degree burglary.

            III. Our Precedent Does Not Conflict with Blueford

       Though the court of appeals relied primarily upon Blueford in

reaching its decision, it did acknowledge that Texas law formally

recognizes the existence of informal verdicts.29 Article 37.10(a) of the

Code of Criminal Procedure sets out in relevant part:

       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.30

The court of appeals also detailed several Texas cases in which jury notes

regarding the inability to reach a verdict did not demonstrate that the



       28
            Blueford, 566 U.S. at 606.

       29
            Traylor, 534 S.W .3d at 680.

       30
         T EX . C O D E C RIM . P RO C . art. 37.10(a); see also Antwine v. State, 572 S.W .2d 541, 543
(Tex. Crim . App. [Panel Op.] 1978).
                                                                                   Traylor – 12

jury had manifested an intent to acquit the defendant under Article

37.10(a).31 Yet, the court of appeals distinguished these cases by noting

that they pre-dated, and conflicted with, Blueford.32                        We perceive no

conflict.

       Under Texas law, an informal verdict is “one that does not meet the

legal requirements of being written or answered as authorized.” 33 For a

jury note to qualify as an informal verdict of acquittal, we have held that

the jury note must also be “plainly intended to operate as an acquittal.” 34

In State ex rel. Hawthorn v. Giblin, we held that a jury note similar to the

one at issue in this case did not qualify as an “informal verdict” under



       31
          Traylor, 534 S.W .3d at 680-81 (citing State ex rel. Hawthorn v. Giblin, 589 S.W .2d
431, 433 (Tex. Crim . App. 1979); Antwine, 572 S.W .2d at 543; Ex parte Zavala, 900 S.W .2d
867, 868–70 (Tex. App.— Corpus Christi 1995, no pet.) (holding that a jury’s statem ent, “we
can reach a decision on one of the charges,” was not an inform al verdict of acquittal); Cardona
v. State, 957 S.W .2d 674, 677 (Tex. App.— W aco 1997, no pet.) (holding that a jury note was
not “plainly intended to operate as an acquittal” because it w as only a com m unication about
the jury’s progress); Thom as v. State, 812 S.W .2d 346, 348–49 (Tex. App.— Dallas 1991, pet.
ref’d) (“Assum ing without deciding that the note at issue constituted an inform al verdict, it does
not m anifestly appear that the jury intended to acquit [the defendant].”)); see also Hooker v.
State, No. 01-06-00767-CR, 2008 W L 384179, at *5–6 (Tex. App.— Houston [1st Dist.] Feb.
14, 2008, no pet.) (not designated for publication) (holding that a jury note indicating that the
jury was deliberating on the lesser-included offense was not an inform al verdict of acquittal on
the greater offenses); Noble v. State, No. 05-02-01734-CR, 2004 W L 11940, at *6 (Tex.
App.— Dallas Jan 26, 2004, no pet.) (not designated or publication) (holding that a jury note
did not constitute an inform al verdict of acquittal); Clark v. State, No. 14-98-00425-CR, 1998
W L 820836, at *2 (Tex. App.— Houston [1st Dist.] Nov. 25, 1998, pet. ref’d) (not designated
for publication) (holding that a jury note did not constitute an inform al verdict of acquittal).

       32
            Traylor, 534 S.W .3d at 681.

       33
            Nixon v. State, 483 S.W .3d 562, 566 (Tex. Crim . App. 2016).

       34
            Hawthorn, 589 S.W .2d at 433; Antwine, 572 S.W .2d at 543.
                                                                       Traylor – 13

Article 37.10(a).35 In that case, the trial court sent a note to the jury

asking about its progress. The jury wrote back that it was unanimous

against guilt on attempted murder (the charged offense) but was

deadlocked on aggravated assault (the lesser-included offense).36 After

determining that further deliberations would be futile, the court ordered

a mistrial.

      We held that the note in Hawthorn was not an informal verdict

because it was not “plainly intended to operate as an acquittal.” 37               In

other words, the jury note did not establish that the jury had finally

resolved to acquit the defendant.            Given that the jury was merely

responding to an inquiry from the trial court and that the jury was

obviously deadlocked, we reasoned that the note was “intended merely

as reports on the jury’s progress toward a verdict.” 38

      Thus, under Texas law we essentially ask the same question that

the United States Supreme Court asked in Blueford: Did the jury finally




      35
         Hawthorn, 589 S.W .2d at 432–33. When Hawthorn was decided, Article 37.10 had
only one paragraph, which becam e Article 37.10(a) when section (b) was added in 1985.
Nixon, 483 S.W.3d at 565.

      36
           Hawthorn, 589 S.W .2d at 432.

      37
           Id. at 433.

      38
           Id.
                                                                                    Traylor – 14

resolve to acquit the defendant? In this case it did not. Because the jury

did not plainly intend for its progress report to be treated as a verdict, the

jury note lacked the “finality necessary to amount to an acquittal” on the

charged offense.39

                                      IV. Conclusion

       We hold that Appellant’s subsequent trial for first-degree burglary

does not violate the Double Jeopardy Clause. The jury note was not an

informal verdict of acquittal under Texas law because it lacked the

“finality necessary to amount to an acquittal” required under Blueford v.

Arkansas. We reverse the court of appeals and affirm the trial court’s

judgment.




Filed: November 7, 2018

Publish




       39
          Id.; Blueford, 566 U.S. at 606, 608. The facts of Ex parte Zavala, 900 S.W .2d at
868–70, show the danger of accepting a jury note as an inform al verdict of acquittal. At the
defendant’s first trial, the jury told the trial court that it was deadlocked, but that it had reached
“a decision on one of the charges.” The court declared a m istrial. At the habeas hearing, the
jurors’ testim ony conflicted on whether the vote on the charged offense was actually
unanim ous: two jurors testified that it was unanim ous, while two other jurors testified that their
not-guilty vote was conditional and they had withdrawn that conditional not-guilty vote.
