                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                         Nos. 07-13-00389-CR & 07-13-00390-CR


                           REGINALD NIXON, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 432nd District Court
                                 Tarrant County, Texas
     Trial Court Nos. 1264129D & 1264131D, Honorable Ruben Gonzalez, Jr., Presiding

                                      June 4, 2014

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Reginald Nixon (appellant) appeals his convictions for burglary of a habitation

and evading arrest or detention. Through a single issue, he contends that the trial court

erred by failing to reform the jury’s verdict when it contained a punishment not

authorized by law. We affirm.

      Background

      Appellant pled guilty to both of the foregoing offenses in front of a jury. Each

charge contained an enhancement paragraph to which appellant also pled true. After
hearing evidence and deliberating on the issue of punishment, the jury returned a

verdict of nine years on the evading charge and seven years on the burglary. However,

the jury attached a note at the bottom of each verdict stating: “To be served

consecutively . . . not concurrently.”    The trial court recessed the jury and asked for

both sides to comment.

       The State argued that the verdict should not be received because it was

premised on the sentences running consecutively and the law did not permit that they

be so served.    Appellant contended that the statement attached to the verdict was

merely advisory and that the trial court need not follow it. He also moved to have it

struck as surplusage. This led the State to request that an instruction be submitted to

the jury on “[§] 3.02 [of the Texas Penal Code].” In turn, appellant moved for a mistrial,

which motion the trial court denied.

       Eventually, the trial court rejected the verdict and directed the jury to continue its

deliberations. Over appellant’s objection, it also instructed the jury as follows:

“Members of the jury, you are further instructed that the Court cannot accept and

receive your verdict as stated. You are instructed that the sentences in both causes

must be served concurrently by operation of law. You are instructed to read and

consider this additional instruction with the remainder of the Court's Charge and

consider the Charge as a whole. Please continue with your deliberations.” Upon further

deliberation, the jury returned a verdict of sixteen years for both offenses.

       Issue—Unauthorized Punishment

       Appellant contends that the trial court erred by refusing to accept and reform the

jury’s verdict. We disagree.


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       Statute provides that “[i]f the jury assesses punishment . . . 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.” TEX.

CODE CRIM. PROC. ANN. art. 37.10(b) (West 2006). Yet, our Court of Criminal Appeals

has also held that “[t]he court can instruct a jury to retire to reconsider the verdict if it

does not comply with the charge, the indictment, or the punishment allowed by the

applicable statute.”   Muniz v. State, 573 S.W.2d 792, 794 (Tex. Crim. App. 1978)

(emphasis added); Loredo v. State, 47 S.W.3d 55, 60 (Tex. App.—Houston [14th Dist.]

2001, pet. ref’d, untimely filed) (stating the same); see also Mayes v. State, No. 01-09-

00118-CR, 2012 Tex. App. Lexis 5157, at *13 (Tex. App.—Houston [1st Dist.] June 28,

2012, pet. ref’d) (stating that “trial courts may instruct juries to conduct further

deliberations in many circumstances, including, among others, when a jury returns

conflicting verdict forms, a non-unanimous verdict, or an otherwise non-complying

verdict”).

       Indeed, the jury in Loredo returned a verdict levying both a prison sentence of

twenty years and recommending community supervision.              Because statute did not

permit a jury to recommend community supervision after levying such an extended

prison term, the trial court directed the jury to continue deliberating. Before doing so, it

also instructed the jurors that they could only recommend community supervision if the

sentence was ten years or less.        Id. at 58-59.   That decision was upheld by the

reviewing court despite appellant’s contention that the trial court was obligated to reform

the verdict under article 37.10 of the Code of Criminal Procedure.



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       Here, no one disputes that the punishment levied by the jury in its initial verdict

was prohibited by law; the jury had no authority to direct that the sentences run

consecutively. While the trial court may have had the authority to reform the verdict

under article 37.10, it also had the authority to refuse the verdict and return the jury to

its deliberations. We cannot fault the trial court for pursuing the latter course, given the

holding in Muniz.

       Accordingly, we affirm the judgments of the trial court.



                                                                  Brian Quinn
                                                                  Chief Justice


       Do not publish.




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