*1 review, sua sponte, questions sufficiency of
of the evidence.
While the opinion of the of Appeals Court
on the state’s second motion for rehearing
does language contain asserting court’s
authority to review sua sponte the suffi
ciency evidence, we not believe do this language, determination, nor this
was necessary to the ultimate decision in
the case and therefore consider be
obiter dicta. The Appeals Court of final
disposition of the case upon did rest a
determination of its reviewing inherent
power. Under the circumstances we are
not compelled to rule espoused on the dicta
by the Court Appeals. Because our
refusal grant appellant’s petition for review,
discretionary petition the state’s
in the nature of a certified question a
request advisory opinion. for an See Trevi
no v. State (Tex.Cr.App.1983) (Ancillary to
13-82-037, 4/20/83.) delivered The issue is
not properly before us.2 peti The state’s
tion for discretionary improvi review was
dently granted. petition state’s for discretionary re-
view is dismissed. WEBBER,
Effrum Appellant, Girod Texas,
The STATE of Appellee. No. 68505. Houston, Hayes, appellant. Ronald N. for Court of Appeals Texas, Criminal Holmes, Jr., Atty., John B. Timothy Dist. En Banc. Rodriguez, G. Taft Jesse Asst. Dist. Houston, Huttash, Attys., June Robert 1983. State’s Walker,
Atty. and Alfred Asst. State’s Austin, Atty., State. presented 2. properly This is not a situation us. Be- where Court would be before Appeals sponte prevailed reversed has sua conviction cause the the court below state has pos- petition granted for insufficient evidence. Were the state’s not be and the should “aggrieved” party, ture that of an time. issue should be reviewed at this *2 to appellant While the tries distin OPINION State, guish West 170 Tex.Cr.R. 340 DALLY, Commissioner. we find it is (Tex.Cr.App.1960), S.W.2d for аppeal authority overruling ground This is an from a conviction for of er separated the offense the not kidnapping; punishment jury of the ror. When has and only momentarily separated are imprisonment is for 4 have years. the court it presence still in the of and appellant The that the court erred asserts jurors to the appears that no one has talked reconvening the its to deliberate jury case, may court recall the about the the punishment verdict on after it had been verdict. West v. correct jurors to thеir discharged, and the prosecutor introduced State, does show supra. The record appellant’s juvenile record in violation of even jury separated, though the had that Article 37.07 V.A.C.C.P. jurors they were the court had told the jury The record shows the de- that after of excused, they and not been out had the to punishment liberated on and returned were they the when re presence of court room, the the court the handed Foreman to the verdict. convened correct request verdict to the bailiff at the court’s that thе State in- appellant’s claim The jury and the court read “The the verdict: juvenile his is based on the troduced record has the of- guilty found Defendant the prosecutor’s apрel- cross-examination of kidnapping punish- fense of and assesses of the trial punishment phase lant at the Tex- years ment at four confinement in the which follows: Department as of and told the Corrections.” of “Q you any Have ever been convicted jurors they were The defendant excused. misdemeanors? days sentencing. ten The requested Yes, “A sir. grаnted request immediately court the and “Q What? “Now, have portion you added: the that Trespassing. “A ‘We, signed here, and the says, filled out was “Q trespassing kind this? What kidnap- find the jury, guilty Defendant proрerty. was on else’s “A It someone ping punishment years, and assess at four “Q and we further find he has never been A home?
convicted in this or state of a any other No, “A sir. and to be
felоny punishment recommend “Q A business? probated.’ verdict?” your Was that not No, “A sir. The Foreman said: “That was not our “I ask the DEFENSE COUNSEL: Attorney verdict.” ask not to to the District Court fishing expedition. on a go The defense counsel asked for mistrial him may THE “He ask some COURT: stating jury discharged, the had been concerning it. I wonder if we questions stayed “I why they and said: don’t know presence the ought go into it out of You had accord- discharged jury, here. the jury. the record, ing my to the is under- which the stop ques- “I will PROSECUTOR: standing, which reversible error.” Honor. point, at this Your tions The court then Foreman had noted the right. “All THE COURT: showing the blank on the form the signed you misdemeanors have “Q other Any polled and punishment probated had been convicted of? been juror the Each that was not thе jury. said No, sir.” “A objection verdict. Over defense counsel’s appellant’s fa- your counsel then called the court allowed the “to look at Defense jury witness, testified, he had if as a and after again your verdict to see that is verdict.” ther and established on appellant the jury deliberated for two minutes and recalled was appellant punish- а verdict that the direct examination showing returned he had “a little age when probated. years ment was not to be thirteen problem trespassing.” with prior The court ad- The reсord also reflects that to the deliberate, jurors monished retired the trial jury time to consider the juvenile told the judge specifically expressly offense. any questions that “if abоut jury you have object Defense counsel did not when form], then ... You can al- verdict [the prosecutor asked the and when by ways ask for further information or [me] he object did it was thаt the “District At jury never writing a written note.” The *3 torney not on go fishing a expedition.” The information did not requested further and defense then showed it juvenile was a of writing in the trial communicate with fеnse and the court the jury admonished judge. not to it. consider Reversible is error not During prosecuting attorney’s jury the shown. trial also the argument, judge jury: the told The judgment is affirmed. jurors] [proba- it thеy “If recommend [the Opinion approved by the Court. tion], then I must follow it.” majority Court, using The this this TEAGUE, Judge, dissenting. State, Court’s decision of West v. 340 (Tex.Cr.App.1960), as authority, S.W.2d Appellant’s ground first of error concerns I ground overrules of error. appellant’s receipt the and acceptance of the jury ver- agree that West stands for the proposition by dict judge. the triаl jury separated that “When the has not I first point out that this is not a case only separated have and are momentarily jury where the returned an improper ver- in presenсe still the of the court and it dict, and was by thereafter instructed the jurors that no one talked the appears has to judge trial to retire in order a to return case,” permissible about the it is then proper is, however, verdict. It a case where to the to judge jury the trial order retire the trial judge committed simply error be- However, proper and rеturn a verdict. that he cause failed to adhere to the statutes rule of law is not this applicable to case govern which the receipt acceptancе and because a jury this case does concern jury E.g., Hay State, verdict. 472 returning improper an The origi- verdict. S.W.2d 157 (Tex.Cr.App.1971). jury clearly nal verdict of the stated that 37.10, Articles 37.04 and Y.A.C.C.P., jury appellant’s the at gov- punishment assessed ern how years’ the verdict four in the jury penitentiary, of the shall confinement be returned accepted and also by following: the аnd stated the “And we judge. trial statutes, Those written, further find that he has never before been though clearly any were not convicted in this or other state of a complied with in this cause. felony, punish- and recommend that said Because I believe helpful that will be to probated.” ment be The trial judge accept- the reader to better appellant’s understand jury, ed this verdict of the and then dis- complaint, I have attached to opinion the charged jury from further service. appendix, an which consists the verdict acknowledgе judge I that after the trial page form and the reporter’s
APPENDIX
787 *7 BURKE, Gary Appellant, Texas, Appellee.
The STATE of
No. 454-82. Texas, Appeals
Court of Criminal
En Banc.
June 1983. court notes verdict, the accepted jury had received and concerning what place jury took аfter the only verdict, he part failing read to returned its verdict to the judge. trial the about part recommending proba- read record reflects that toas the first verdict the nеver Unfortunately, tion. record re- that was returned accepted by and the trial why he did not at that time read the flects judge, jury the foreperson signed his only entire verdict. signature under the and last bottom verdict form. The final verdict referred to the also reflects the trial The record that form, top first or verdict with foreper- the judge, accepted аfter he the verdict and son scratching signature out his part it, was later it upon read took himself to form, under the last or bottom verdict with time it poll jury, and the at which such act being initialed. “That was learned: was not our verdict.” Unfortunately, the record does not reflect [Emphasis As to when “they told Added]. judge what caused or the trial motivated me” is not record, reflеcted but the act as he did. statement by counsel certainly indicates to me they spoke to counsel after they why West yet There is another reason had returned their verdict and after record in this cause. The applicable judge trial read part aloud of the verdict. that after clearly this cause reflects I therefore judge, they the triаl recommend that the jury discharged by was sentence be reformed to reflect that appel- appellant’s for the pun- communicated with counsel ishment into was assеssed by juiy stated at appellant lant. Trial counsel for four years’ I confinement in the because following: penitentiary, the record the “... but probated for that period. thе verdict To the reading majority’s at the bottom notice [of failure to they accept my recommendation, form], probation because that was I re- spectfully dissent. probation.” had not done they told me