Traylor v. State (567 S.W.3d 741, 2018)

[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. 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 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. 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.

We agree with the State that the jury note here lacks "the finality necessary to constitute an acquittal" on the first-degree burglary offense. 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. 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.

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 jury had manifested an intent to acquit the defendant under Article 37.10(a). Yet, the court of appeals distinguished these cases by noting that they pre-dated, and conflicted with, Blueford . 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." 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." 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 Article 37.10(a). 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). 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." 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."

Thus, under Texas law we essentially ask the same question that the United States Supreme Court asked in Blueford : Did the jury finally 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.

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.

Id. at 680.

Blueford , 566 U.S. at 606, 608, 132 S.Ct. 2044 ("The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.").

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 "complete its deliberations on a greater offense before it may consider a lesser." See Blueford , 566 U.S. at 612, 132 S.Ct. 2044 (Sotomayor, J., dissenting). Yet, the Supreme Court still rejected the argument 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, 132 S.Ct. 2044.

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 .

Blueford , 566 U.S. at 606, 132 S.Ct. 2044.

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

Tex. Code Crim. Proc. art. 37.10(a) ; see also Antwine v. State , 572 S.W.2d 541, 543 (Tex. Crim. App. [Panel Op.] 1978).

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 statement, "we can reach a decision on one of the charges," was not an informal verdict of acquittal); Cardona v. State , 957 S.W.2d 674, 677 (Tex. App.-Waco 1997, no pet.) (holding that a jury note was not "plainly intended to operate as an acquittal" because it was only a communication about the jury's progress); Thomas v. State , 812 S.W.2d 346, 348-49 (Tex. App.-Dallas 1991, pet. ref'd) ("Assuming without deciding that the note at issue constituted an informal verdict, it does not manifestly appear that the jury intended to acquit [the defendant].") ); see also Hooker v. State , No. 01-06-00767-CR, 2008 WL 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 informal verdict of acquittal on the greater offenses); Noble v. State , No. 05-02-01734-CR, 2004 WL 112940, at *6 (Tex. App.-Dallas Jan 26, 2004, no pet.) (not designated or publication) (holding that a jury note did not constitute an informal verdict of acquittal); Clark v. State , No. 14-98-00425-CR, 1998 WL 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 informal verdict of acquittal).

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

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

Hawthorn , 589 S.W.2d at 433 ; Antwine , 572 S.W.2d at 543.

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

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

Id. at 433.

Id.

Id. ; Blueford , 566 U.S. at 606, 608, 132 S.Ct. 2044. The facts of Ex parte Zavala , 900 S.W.2d at 868-70, show the danger of accepting a jury note as an informal 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 mistrial. At the habeas hearing, the jurors' testimony conflicted on whether the vote on the charged offense was actually unanimous: two jurors testified that it was unanimous, while two other jurors testified that their not-guilty vote was conditional and they had withdrawn that conditional not-guilty vote.