Lead Opinion
This is an appeal from a conviction for the offense of kidnapping; the punishment is imprisonment for 4 years.
The appellant asserts that the court erred in reconvening the jury to deliberate its verdict on punishment after it had been discharged, and the prosecutor introduced appellant’s juvenile record in violation of Article 37.07 V.A.C.C.P.
The record shows that after the jury deliberated on punishment and returned to the court room, the Foreman handed the verdict to the bailiff at the court’s request and the court read the verdict: “The jury has found the Defendant guilty of the offense of kidnapping and assesses punishment at fоur years confinement in the Texas Department of Corrections.” and told the jurors they were excused. The defendant requested ten days for sentencing. The court granted the request and immediately added: “Now, the portion that you have filled out and signed here, it says, ‘We, the jury, find the Defendant guilty of kidnapping and assess punishment at four years, and we further find he has never been convicted in this or any other state of a felony and recommend punishment to be probatеd.’ Was that not your verdict?”
The Foreman said: “That was not our verdict.”
The defense counsel asked for a mistrial stating that the jury had been discharged, and said: “I don’t know why they stayed here. You had discharged the jury, according to the record, which is my understanding, which is reversible error.”
The court then noted the Foreman had signed the blank on the form showing the punishment had been probated and polled the jury. Each juror said that was not the verdict. Over defense counsel’s objection the court allowed the jury “to look at yоur verdict again to see if that is your verdict.” The jury deliberated for two minutes and returned a verdict showing that the punishment was not to be probated.
While the appellant tries to distinguish West v. State,
The appellant’s claim that the State introduced his juvenilе record is based on the prosecutor’s cross-examination of the appellant at the punishment phase of the trial which follows:
“Q Have you ever been convicted of any misdemeanors?
“A Yes, sir.
“Q What?
“A Trespassing.
“Q What kind of trespassing was this?
“A It was on someone else’s property.
“Q A home?
“A No, sir.
“Q A business?
“A No, sir.
DEFENSE COUNSEL: “I ask the Court to ask the District Attorney not to go on a fishing expedition.
THE COURT: “He may ask him some questions concerning it. I wonder if we ought to go into it out of the presence of the jury.
PROSECUTOR: “I will stop the questions at this point, Your Honor.
THE COURT: “All right.
“Q Any other misdemeanors you have been convicted of?
“A No, sir.”
Defense counsel then called appellant’s father as a witness, and after he had testified, recalled the appellant and established on direct examination that the appellant was thirteen years of age when he had “a little
Defense counsel did not object when the prosecutor asked the question and when he did object it was that the “District Attorney not go on a fishing expedition.” The defense then showed it was a juvenile offense and the court admonished thе jury not to consider it. Reversible error is not shown.
The judgment is affirmed.
Opinion approved by the Court.
Dissenting Opinion
dissenting.
Appellant’s first ground of error concerns the receipt and acceptance of the jury verdiсt by the trial judge.
I first point out that this is not a case where the jury returned an improper verdict, and was thereafter instructed by the trial judge to retire in order to rеturn a proper verdict. It is, however, a case where the trial judge committed error simply because he failed to adhere to the statutes which gоvern the receipt and acceptance of a jury verdict. E.g., Hay v. State,
Articles 37.04 and 37.10, Y.A.C.C.P., govern how the verdict of the jury shall be returned and accepted by thе trial judge. Those statutes, though clearly written, were not complied with in this cause.
Because I believe that it will be helpful to the reader to better understаnd appellant’s complaint, I have attached to this opinion an appendix, which consists of the verdict form page and the court reporter’s notes concerning what took place after the jury returned its verdict to the trial judge. The record reflects that as to the first verdict that was returnеd and accepted by the trial judge, the jury foreperson only signed his signature under the last and bottom verdict form. The final verdict referred to the first or top vеrdict form, with the foreperson scratching out his signature that was under the last or bottom verdict form, with such act being initialed.
The record also reflects that prior to the time the jury retired to deliberate, the trial judge specifically and expressly told the jury that “if you have any questions about [the verdict form], then ... You сan always ask [me] for further information or by writing a written note.” The jury never requested further information and did not communicate in writing with the trial judge.
During the prosecuting attоrney’s jury argument, the trial judge also told the jury: “If they [the jurors] recommend it [probation], then I must follow it.”
The majority of this Court, using this Court’s decision of West v. State,
I acknowledge that after thе trial judge had received and accepted the jury verdict, he only read part of the verdict, failing to read the part about recommending probation. Unfortunately, the record never reflects why he did not at that time read the entire verdict.
The record also reflects that the trial judge, after hе accepted the verdict and read part of it, later took it upon himself to question and poll the jury, at which time it was learned: “That was not our verdict.”
There is yet another reason why West is not applicable to this cause. The rеcord in this cause clearly reflects that after the jury was discharged by the trial judge, they communicated with counsel for the appellant. Trial counsel for appellant stated into the record the following: “... because I notice reading at the bottom [of the verdict form], because that was prоbation and they told me they had not done probation.” [Emphasis Added]. As to when “they told me” is not reflected in the record, but the statement by counsel certainly indicatеs to me that they spoke to counsel after they had returned their verdict and after the trial judge read aloud part of the verdict.
I therefore reсommend that the sentence be reformed to reflect that appellant’s punishment was assessed by the juiy at four years’ confinement in the penitentiary, but probated for that period. To the majority’s failure to accept my recommendation, I respectfully dissent.
APPENDIX
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