Cook v. State
2013 Tex. Crim. App. LEXIS 192
Tex. Crim. App.2013Background
- Appellant was convicted of manslaughter and sentenced to six years’ confinement with probation in open court.
- A second, post-sentencing verdict was later returned by a re-convened jury, six years, with no probation, and the judge re-sentenced accordingly.
- The court of appeals remanded for a new punishment hearing, holding the recall of the jurors was harmful error.
- The Texas Court of Criminal Appeals reinstates the original probated sentence, concluding the proper remedy is to reflect the initial, valid verdict in the judgment.
- Preservation of error challenged under Rule 83.1(a) was addressed; the mistrial motion was held timely and specific.
- The court held that due to finality of a valid sentence pronounced in open court, the appropriate remedy is to modify the judgment to the probated six-year sentence rather than ordering a new punishment trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of error | Cook preserved error by a timely mistrial motion. | State contends the objection was not timely or specific enough. | Error preserved; mistrial objection timely and specific. |
| Proper remedy on review | Remand for a new punishment trial is improper; reinstatement of the probated verdict is correct. | Remand for a new punishment hearing is required to reflect true jury intent. | Modify judgment to reflect six years probated; no new punishment trial. |
| Authority to recall discharged jury | There was error in reconvening the discharged jury after sentencing. | Re-convening was a permissible correction of a verdict form. | Recall improper; remedy appropriate as judgment modification. |
| Article 37.04 and poll rights | Defendant’s rights to a proper verdict and possible poll were compromised by recall. | The verdict was subject to re-deliberation under Article 37.04 if necessary to correct an inconsistent verdict. | Final judgment should reflect original, valid verdict; poll rights timing do not warrant a new punishment trial. |
| Finality of sentence after proper pronouncement | Once pronounced, a valid sentence has finality and cannot be undone by later recall. | Accuracy of the verdict can be corrected by remand if necessary. | Finality honored; judgment adjusted to reflect probated six-year sentence. |
Key Cases Cited
- Cook v. State, 361 S.W.3d 235 (Tex.App.-Fort Worth 2012) (discusses recall of a discharged jury and related remedies)
- Webber v. State, 652 S.W.2d 781 (Tex.Crim.App.1983) (limits on recalling a jury that has been discharged)
- West v. State, 340 S.W.2d 813 (Tex.Crim.App.1960) (limits on recalling a jury to correct verdicts)
- Reese v. State, 773 S.W.2d 314 (Tex.Crim.App.1989) (duty to reject informal or insufficient verdict; correct or resend)
- Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993) (absolute requirements; limitations on post-verdict actions)
- Mendez v. State, 138 S.W.3d 334 (Tex.Crim.App.2004) (absolute requirements cannot be forfeited by objection failure)
- Mizell v. State, 119 S.W.3d 804 (Tex.Crim.App.2003) (noncontemporaneous objections to illegal sentences)