Webber v. State

652 S.W.2d 781, 1983 Tex. Crim. App. LEXIS 1053

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 1983
• Docket: 68505
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

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 four 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 probated.’ 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 your 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, 170 Tex.Cr.R. 317, 340 S.W.2d 813 (Tex.Cr.App.1960), we find it is authority for overruling this ground of error. When the jury has not separated or have only momentarily separated and are still in the presence of the court and it appears that no one has talked to the jurors about the case, the court may recall the jurors to correct their verdict. West v. State, supra. The record does not show that the jury had separated, even though the court had told the jurors they were excused, and they had not been out of the presence of the court when they were reconvened to correct the verdict.

The appellant’s claim that the State introduced his juvenile 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 problem with trespassing.” The court admonished the jurors not to consider the juvenile offense.

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 the jury not to consider it. Reversible error is not shown.

The judgment is affirmed.

Opinion approved by the Court.