Williams, Sammy Carl

• Court: Court of Appeals of Texas
• Decided: October 21, 2015
• Docket: PD-1368-15
• Status: Published

Opinion

PD-1368-15 PD-1368-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/20/2015 11:20:26 AM Accepted 10/21/2015 2:28:06 PM ABEL ACOSTA No. 07-14-00333-CR CLERK

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

THE STATE OF TEXAS, Appellant

v.

SAMMY CARL WILLIAMS, Appellee

Appeal from Lynn County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

MICHAEL MUNK District Attorney SBN 24052943

JASON BUJNOSEK Assistant District Attorney SBN 24036285

P.O. Box 1124 October 21, 2015 Lamesa, TX 79331 806-872-2259 806-872-3174 fax michael.munk@co.dawson.tx.us jason.bujnosek@co.dawson.tx.us IDENTITY OF PARTIES, JUDGE, AND COUNSEL

• The parties to the trial court’s judgment are the State of Texas and Appellant, Sammy Carl Williams.

• The trial Judge was Hon. Carter T. Schildknecht of the 106th Judicial District.

• Trial counsel for the State were Michael Munk, District Attorney, and Jason Bujnosek, Assistant District Attorney, P.O. Box 1124, Lamesa, Texas, 79331.

• Counsel for the State before the Seventh Court of Appeals were Michael Munk, District Attorney, and Jason Bujnosek, Assistant District Attorney, P.O. Box 1124, Lamesa, Texas, 79331.

• Counsel for the State before the Court of Criminal Appeals are Michael Munk, District Attorney, and Jason Bujnosek, Assistant District Attorney, P.O. Box 1124, Lamesa, Texas, 79331.

• Counsel for Appellant at trial was Mark Snodgrass, 1011 13th Street, Lubbock, Texas, 79401.

• Counsel for Appellant before the Seventh Court of Appeals was Allison Clayton, P.O. Box 64752, Lubbock, Texas, 79464.

ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................. iv

STATEMENT REGARDING ORAL ARGUMENT ............................................ 1

STATEMENT OF THE CASE ............................................................................... 2

STATEMENT OF PROCEDURAL HISTORY..................................................... 3

GROUNDS FOR REVIEW .................................................................................... 3

1. Where a jury has made a mistake in its punishment verdict on the form of verdict and given notice to the court that they had misunderstood the form, and the jury has not departed, separated, or communicated with anyone else, is the sentence imposed by the court an “illegal sentence” if the court does not then permit the jury to correct the form of verdict? 2. Where a jury has made a mistake in writing its punishment verdict on the form of verdict and given notice to the court that they had misunderstood the form, and the court does not permit the jury to reform or correct its verdict, is a judgment based upon the erroneously-accepted verdict a “modified judgment”?

ARGUMENT .......................................................................................................... 4

PRAYER FOR RELIEF ......................................................................................... 8

CERTIFICATE OF SERVICE ............................................................................... 9

CERTIFICATE OF COMPLIANCE .................................................................... 10

APPENDIX A (transcript excerpt, State v. Sammy Carl Williams, cause 14- 3151, 106th District Court in Lynn County, August 20,2014)

APPENDIX B (opinion of the Court of Appeals)

APPENDIX C (State v. Baize, 981 S.W.2d 204 (Tex. Crim. App. 1998))

iii

INDEX OF AUTHORITIES

CONSTITUTION

TEX. CONST. art. V, § 13 .................................................................................... 6

STATUTES

TEX. CODE CRIM. PROC. art. 2.03(b) .................................................................. 7

TEX. CODE CRIM. PROC. art. 36.29(a) ................................................................ 7

TEX. CODE CRIM. PROC. ch. 37 .......................................................................... 7

TEX. CODE CRIM. PROC. art. 42.12 §4(a) ......................................................... 2n

TEX. CODE CRIM. PROC. art. 42.12 §6(a) ......................................................... 2n

TEX. CODE CRIM. PROC. art. 42.12 §10(a) ....................................................... 2n

TEX. CODE CRIM. PROC. art. 44.01 .................................................................. 5-6

TEX. R. APP. P. 66.3(f) ....................................................................................... 7

CASES

Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013) ................................... 4

State v. Baize, 981 S.W.2d 204 (Tex. Crim. App. 1998) .................................. 6

State v. Dudley, 223 S.W.3d 717 (Tex. App.—Tyler 2007, no pet.) ................ 4

State v. Ross, 953 S.W.2d 748 (Tex. Crim. App. 1997) .................................... 6

State v. Williams, S.W.3d , No. 07-14-00333-CR, 2015 Tex. App. LEXIS 9866 (Tex. App.—Amarillo 2015) ................... 3

Webber v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983) ............................... 4

West v. State, 340 S.W.2d 813 (Tex. Crim. App. 1960).................................... 4

Williams v. State, 42 S.W.2d 441 (Tex. Crim. App. 1931) ............................... 4

iv

No. 07-14-00333-CR

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State respectfully urges this Court to grant discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument. The Court of Appeals, in arriving at its

decision, erroneously determined that the State was not appealing a sentence but

the procedure used to arrive at a sentence. The Court failed to note, however, that

the case concerns jury unanimity, a constitutional matter, which makes the Court’s

analysis incorrect.

STATEMENT OF THE CASE

On August 19, 2014, a jury convicted Appellee of five felony offenses: two

counts of Aggravated Assault against two different victims, two counts of Failure

to Stop and Render Aid, and one count of Intoxication Assault. Four of the five

convictions included deadly weapon findings. Following a hearing on punishment,

the jury indicated that they had arrived at a punishment verdict on August 20,

2014. The verdict forms returned by the jury imposed a sentence of 10 years in

prison and recommended probation. No juror dissented during the initial reading

of the verdict, and both sides waived a jury poll. All jurors remained in the jury

box, within the presence of the court, for the remainder of the sentencing. During

the pronouncing of the sentence, the State requested a jury poll due to agitation

among the jurors, which the judge denied. The foreman of the jury then notified

the court through the bailiff that, although the written verdict form recommended

probation, the jury had intended for Appellee to go to prison for 10 years before he

would be placed on probation1. The State requested that the jurors be returned to

deliberations or, in the alternative, asked for a mistrial on punishment. The judge

denied the State’s requests and continued to sentence Appellant in accordance with

the written forms of verdict, despite having actual notice from the still-present jury

that the written forms did not conform to their intentions.

1 A sentence of ten years imprisonment followed by probation is not a legal sentence. See TEX. CODE CRIM. PROC. art. 42.12 §§ 4(a), 6(a), 10(a). 2

The State appealed, citing an illegal sentence and a modified or arrested

judgment as a basis for the appeal. The Seventh Court of Appeals dismissed the

State’s appeal for want of jurisdiction.

STATEMENT OF PROCEDURAL HISTORY

In a published decision, the Seventh Court of Appeals dismissed the State’s

appeal for want of jurisdiction. State v. Williams, S.W.3d , No.

07-14-00333-CR, 2015 Tex. App. LEXIS 9866 (Tex. App.—Amarillo 2015). The

State did not file a motion for rehearing.

GROUNDS FOR REVIEW

1. Where a jury has made a mistake in its punishment verdict on the form of verdict and given notice to the court that they had misunderstood the form, and the jury has not departed, separated, or communicated with anyone else, is the sentence imposed by the court an “illegal sentence” if the court does not then permit the jury to correct the form of verdict?

2. Where a jury has made a mistake in writing its punishment verdict on the form of verdict and given notice to the court that they had misunderstood the form, and the court does not permit the jury to reform or correct its verdict, is a judgment based upon the erroneously-accepted verdict a “modified judgment”?

ARGUMENT

The present case represents a case of first impression. Historically, errors in

the verdict returned by a jury have been dealt with in one of two ways: first, if the

jury has dispersed and no longer has an identity as a unified body, the jury may not

be reconvened to correct its verdict. Cook v. State, 390 S.W.3d 363 (Tex. Crim.

App. 2013); State v. Dudley, 223 S.W.3d 717 (Tex. App.—Tyler 2007, no pet.).

Second, if the jurors have not separated or have separated only momentarily, are

still in the presence of the court, and it appears that no one has talked to the jurors

about the case, the trial court may recall the jurors to correct their verdict. Webber

v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983); West v. State, 340 S.W.2d 813

(Tex. Crim. App. 1960).

The judge in the present case, however, took a previously unknown third

option: ignoring the jury’s communication about their intentions and pressing on

with sentencing anyway. In doing so, the judge has left in question whether

Appellee’s sentence is authorized. Appellee’s sentence cannot be the sentence

intended by the jury, because that would be an illegal sentence (imprisonment

followed by probation), and it also cannot be the sentence imposed by the judge,

because the judge knew, before the jury left her presence, that the verdict forms did

not reflect their agreement, and a judge may not substitute her judgment for the

verdict of the jury. Williams v. State, 42 S.W.2d 441 (Tex. Crim. App. 1931). The

judge in the present case twice received information on the record that the jurors

were seeking to impose an illegal sentence, first by a note from an alternate juror

before deliberations were complete (CR 170, 6 RR 126), then by direct

communication from the foreman through the bailiff (6 RR 135), and the judge

failed to act on either occasion.

In either case, we are left with an illegal sentence. The sentence the jury

sought to impose, imprisonment followed by probation, is not permissible under

the law. The sentence imposed by the judge, however, was not the unanimous

assent of the jury. At the guilt-innocence phase, the jurors had entered affirmative

deadly weapon findings for four of the five charged counts2, meaning that the

judge had no authority to place Appellee on community supervision without the

recommendation of the jury. It is clear from the record that the jury wanted

Appellee to be imprisoned for ten years before being placed on probation;

therefore, the judge’s immediately placing Appellee on probation was not

authorized. The situation is no different than if the jury had returned a verdict of

99 years imprisonment and the judge unilaterally sentenced the defendant to 5

years imprisonment. If there is no permissible avenue for the State to appeal this

issue, then there is no oversight of judicial conduct at the closing phase of trial and,

so long as a judge’s decisions favor defendants over the State, TEX. CODE CRIM.

2 C.R. 197, 199, 201, 204. 5

PROC. art. 44.01 stands as a shield that allows judges to alter jury verdicts with

impunity.

The decision of the Court of Appeals rests entirely upon State v. Baize, 981

S.W.2d 204 (Tex. Crim. App. 1998), and State v. Ross, 953 S.W.2d 748 (Tex.

Crim. App. 1997), which held that an appellate court could “look behind” the

State’s assertion that it was appealing an illegal sentence in order to determine

whether it was in fact appealing something else. The Court of Appeals claims to

have “looked behind” the State’s appellate issues and determined that the State was

not appealing a sentence, but the procedure leading to the imposition of the

sentence, and thus did not invoke the Court’s jurisdiction. The State contends that

the Court of Appeals misapplied Baize and Ross in that it failed to consider the

constitutional concerns of the State’s appeal. The judge in the present case

sentenced the defendant in accordance with a jury verdict that was not unanimous.

Jury unanimity is a fundamental principle of our system of justice, and even Baize

and Ross must bow to constitutional concerns. The Court of Appeals failed to

consider that Baize begins from the proposition that, when the State was given the

right to appeal in 1987, “‘illegal sentence’ had acquired a technical or particular

meaning – a sentence the trial court had no jurisdiction to levy or one which

violates a fundamental constitutional right.” Baize at 205-6. The present case

involves one such fundamental constitutional right: the right to a unanimous jury

verdict. The Court of Appeals thus erred in holding that it had no jurisdiction to

consider the State’s appeal.

The judge’s actions in the present case violate the Texas Code of Criminal

Procedure (article 36.29(a), twelve jurors required to render and return a verdict;

article 2.03(b), trial court has a duty to ensure a fair trial for both the State and the

defendant; and chapter 37, a verdict is the written decision of the jury) and the

Constitution of the State of Texas (art. V § 13, verdict must be rendered by the

whole of the jury). No juror voted for the sentence imposed by the judge. The jury

reached out to the judge for help in correcting their sentencing mistake, and the

judge chose to ignore them, despite the judge saying on the record, “I don’t know

what to do at this point, to be truthful.” 6 RR 136. This clearly represents such a

departure from usual judicial proceedings that, pursuant to TEX. R. APP. P. 66.3(f),

this honorable Court must exercise its supervisory authority and intervene.

PRAYER FOR RELIEF

Wherefore, the State of Texas prays that the Court of Criminal Appeals grant

this Petition for Discretionary Review and declare a mistrial on punishment

because no proper verdict was received or judgment issued by the trial court, and

return the case to the trial court for a new trial on punishment.

Respectfully submitted,

Michael Munk District Attorney 106th Judicial District michael.munk@co.dawson.tx.us Bar No. 24052943

Jason Bujnosek Assistant District Attorney 106th Judicial District P.O. Box 1124 Lamesa, Texas 79331 (806) 872-2259 (806) 872-3174 fax jason.bujnosek@co.dawson.tx.us Bar No. 24036285

CERTIFICATE OF SERVICE

I, Jason Bujnosek, Assistant District Attorney for the 106th Judicial District,

hereby certify that a true copy of the above and foregoing State’s Appeal Brief was

transmitted by email to Allison Clayton, Attorney for Defendant, on this the 20th

day of October, 2015.

Jason Bujnosek ATTORNEY FOR STATE

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e). It has been prepared on a computer using a conventional typeface (Times

New Roman) in 14-point size. This document also complies with the word count

provisions of Tex. R. App. Proc. 9.4(i) because it contains 1,483 words, as counted

by the program used to create the document, excluding any parts exempted by TEX.

R. APP. P. 9.4(i)(1).

APPENDIX A 1 REPORTER'S RECORD

2 VOLUME 6 OF 7 VOLUMES

3 TRIAL COURT CAUSE NO. 14-3151

4 THE STATE OF TEXAS ) IN THE DISTRICT COURT ) 5 vs. ) LYNN COUNTY, TEXAS ) 6 SAMMY CARL WILLIAMS ) 106TH JUDICIAL DISTRICT

9 _____________________________________________

10 TRIAL ON THE MERITS - PUNISHMENT PHASE _____________________________________________ 11

13 On the 20th day of August, 2014, the following

14 proceedings came on to be held in the above-titled and

15 numbered cause before the Honorable Carter T.

16 Schildknecht, Judge Presiding, held in Tahoka, Lynn

17 County, Texas.

18 Proceedings reported by computerized stenotype

19 machine.

J'Lyn Sauseda, CSR 806-872-3740 jlynsauseda@yahoo.com TRIAL ON THE MERITS - PUNISHMENT PHASE August 20, 2014 2

1 APPEARANCES

2 Michael S. Munk SBOT NO. 24052943 3 Jason Bujnosek SBOT NO. 24036285 4 District Attorney's Office P.O. Box 1124 5 Lamesa, Texas 79331 Telephone: 806-872-2259 6 Fax: 806-872-3174 Attorneys for the State 7

8 Mark S. Snodgrass SBOT NO. 00795085 9 Taly Shae Jacobs SBOT NO. 24074476 10 Mark Snodgrass Law Office 1011 13th Street 11 Lubbock, TX 79401 Telephone: 806-762-0267 12 Fax: 806-762-0277 Attorneys for the Defense 13

J'Lyn Sauseda, CSR 806-872-3740 jlynsauseda@yahoo.com TRIAL ON THE MERITS - PUNISHMENT PHASE August 20, 2014 3

1 VOLUME 6

2 Trial on Merits - Punishment Phase

3 August 20, 2014 PAGE VOL. 4 Calvin Boyd Direct Cross V.Dire By Mr. Bujnosek 7 v6 5 By Mr. Snodgrass 12 v6 By Mr. Bujnosek 15 v6 6 Gloria Hernandez 7 By Mr. Munk 18 v6

8 Nicolas Mata Jr. By Mr. Munk 31 v6 9 State rests ..................................... 33 6 10 Michelle Williams 11 By Mr. Snodgrass 34 v6 By Mr. Bujnosek 38 v6 12 By Mr. Snodgrass 42 v6 By Mr. Bujnosek 45 v6 13 Barry Pittman 14 By Mr. Snodgrass 46 v6 By Mr. Munk 50 v6 15 By Mr. Snodgrass 55 v6 By Mr. Munk 55 v6 16 Bill Schoemann 17 By Mr. Snodgrass 57 v6 By Mr. Munk 68 v6 18 By Mr. Snodgrass 74 v6 By Mr. Munk 75 v6 19 By Mr. Snodgrass 76 v6

20 Kevin Larpenter By Mr. Snodgrass 77 v6 21 By Mr. Munk 83 v6 By Mr. Snodgrass 86 v6 22 By Mr. Munk 87 v6 By Mr. Snodgrass 89 v6 23 Defendant rests ................................. 89 6 24 Closing Argument by Mr. Munk .................... 106 6 25 Closing Argument by Mr. Snodgrass ............... 112 6

J'Lyn Sauseda, CSR 806-872-3740 jlynsauseda@yahoo.com TRIAL ON THE MERITS - PUNISHMENT PHASE August 20, 2014 4

1 Rebuttal Argument by Mr. Bujnosek ............... 118 6

2 Motion for new trial ............................ 137 6

3 Motion for new trial and mistrial ............... 144 6

4 Reporter's Certificate .......................... 148 6

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09:04:03 1 (Open court; parties present, jury not

2 present.)

3 THE COURT: We have a question from the

4 jury, and I don't know if I can answer it or not. In

13:58:31 5 fact, there's several questions here. One of them says,

6 "Retribution money just comes out of commissary? Or can

7 defendant's business pay for retribution?"

8 MR. MUNK: "Retribution"?

9 THE COURT: They're talking about

13:58:49 10 restitution. Question mark.

11 MR. SNODGRASS: I don't think you can

12 answer it.

13 THE COURT: I think my answer has to be

14 "I'm sorry. I cannot answer the question."

13:58:59 15 And the next question is "Do the fees get

16 paid before the retribution?" I'll have to put my

17 answer down here at the bottom to both of those.

18 They've got a -- we have, apparently, a

19 foreman that's writing on the jury form. This is the

14:27:06 20 question, and so she wrote it on here. "Should this

21 say not less than one year?"

22 No. It should say "not more than one

23 year, correct, just like it's written."

24 MR. SNODGRASS: Yes.

14:27:17 25 MR. MUNK: Yes. I think that's correct,

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14:27:18 1 just like it's written.

2 THE COURT: The way it's written.

3 MR. SNODGRASS: Yes.

4 MR. MUNK: Yeah. I think what she doesn't

14:27:23 5 notice is there's an "or" between the two sentences.

6 She doesn't recognize --

7 THE COURT: Well, she should.

8 MR. MUNK: Yeah. She thinks it's one

9 sentence.

14:27:37 10 THE COURT: She's marked through it. I'm

11 going to write on here, "Please read the jury charge as

12 it is written originally and continue deliberating."

13 Is that okay to say that much?

14 MR. SNODGRASS: I think that's fine.

14:28:12 15 MR. MUNK: Would you read it to me one

16 more time.

17 THE COURT: I said, "Please read the jury

18 charge as it is written originally and continue

19 deliberating."

14:28:22 20 MR. MUNK: Yeah, that's fine.

21 (Recess taken.)

22 (Open court; parties present, jury not

23 present.)

24 THE COURT: Okay.

14:44:34 25 Then, go on the record. I received a

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14:44:36 1 note at 2:48 p.m. Apparently, from questioning the

2 bailiff, it came from one of the alternate jurors, not

3 from the foreman. It says, "I don't think they

4 understand if they say ten years and recommend

14:44:54 5 probation, that is not ten years plus probation."

6 After discussing it with the attorneys,

7 our thought was that the bailiff go back in and tell

8 the alternate juror she cannot be participating in any

9 way unless she is used to have to replace one of the

14:45:13 10 other jurors.

11 MR. SNODGRASS: That is my interpretation

12 of what happened.

13 THE COURT: Yes. Okay. Thank you.

14 (Recess taken.)

09:04:03 15 (Open court; parties present, jury not

16 present.)

17 THE COURT: I have received a message from

18 the bailiff that the jury has reached a verdict. Would

19 the attorneys please come to the courtroom.

14:59:57 20 Let the record reflect that the attorney

21 for the State, the attorney for the defendant, and the

22 defendant are all present and in the courtroom.

23 I had received a message from the bailiff

24 that the jury has informed him they've reached a

15:00:12 25 verdict.

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15:00:13 1 Would the bailiff please bring the jury

2 into the courtroom.

3 All rise.

4 (Open court; parties and jury present.)

15:01:15 5 THE COURT: You may be seated. Let the

6 record reflect that the attorney for the State, the

7 attorney for the defendant, the defendant, and all

8 members of the jury are present and seated in the

9 courtroom.

15:01:28 10 And at this time I would ask you, Madam

11 Foreman, have you reached a verdict on punishment?

12 THE FOREMAN: Yes.

13 THE COURT: Would you please hand the

14 verdict form to the bailiff to deliver it to me for

15:01:38 15 inspection. Thank you.

16 Let me ask you, Madam Foreman, is this

17 verdict, that is included on each of the verdict forms,

18 the unanimous verdict of all members of your jury?

19 THE FOREMAN: Yes, ma'am.

15:03:19 20 THE COURT: Would the defendant please

21 stand to receive the verdict.

22 Cause No. 14-3151, the State of Texas

23 versus Sammy Carl Williams, in the 106th Judicial

24 District Court of Lynn County, Texas.

15:03:41 25 We, the jury, having found the defendant,

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15:03:43 1 Sammy Carl Williams, guilty of the felony offense of

2 aggravated assault, as alleged in Count 1 of the

3 indictment, assess his punishment at imprisonment in

4 the Institutional Division of the Texas Department of

15:03:55 5 Criminal Justice for a term of ten years and a fine of

6 $10,000.

7 We, the jury, find that the information

8 contained in the defendant's written, sworn motion for

9 community supervision is true.

15:04:12 10 We, the jury, having found the

11 information in the defendant's written, sworn motion to

12 be true, recommend that the defendant be placed on

13 community supervision.

14 Form of Verdict No. 2:

15:04:27 15 We, the jury, having found the defendant,

16 Sammy Carl Williams, guilty of the felony offense of

17 intoxication assault, as alleged in Count 2 of the

18 indictment, assess his punishment at imprisonment in

19 the Institutional Division of the Texas Department of

15:04:39 20 Criminal Justice for a term of ten years and a fine of

21 $10,000.

22 We, the jury, find that the information

23 contained in the defendant's written, sworn motion for

24 community supervision is true.

15:04:56 25 We, the jury, having found the

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15:04:57 1 information in the defendant's written, sworn motion to

2 be true, recommend that the defendant be placed on

3 community supervision.

4 Form of Verdict No. 3:

15:05:13 5 We, the jury, having found the defendant,

6 Sammy Carl Williams, guilty of the felony offense of

7 failure to stop and render aid, as alleged in Count 3

8 of the indictment, assess his punishment at

9 imprisonment in the institutional division of the Texas

15:05:27 10 Department of Criminal Justice for a term of ten years

11 and a fine of $10,000.

12 We, the jury, find that the information

13 contained in the defendant's written, sworn motion for

14 community supervision is true.

15:05:42 15 We, the jury, having found the

16 information in the defendant's written, sworn motion to

17 be true, recommend that the defendant be placed on

18 community supervision.

19 Form of Verdict No. 4:

15:05:58 20 We, the jury, having found the defendant,

21 Sammy Carl Williams, guilty of the felony offense of

22 aggravated assault, as alleged in Count 4 of the

23 indictment, assess his punishment at imprisonment in

24 the Institutional Division of the Texas Department of

15:06:12 25 Criminal Justice for a term of two years and a fine of

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15:06:19 1 $10,000.

2 We, the jury, find that the information

3 contained in the defendant's written, sworn motion for

4 community supervision is true.

15:06:29 5 We, the jury, having found the

6 information in the defendant's written, sworn motion to

7 be true, recommend that the defendant be placed on

8 community supervision.

9 Form of Verdict No. 5:

15:06:50 10 We, the jury, having found the defendant,

11 Sammy Carl Williams, guilty of the felony offense of

12 failure to stop and render aid, as alleged in Count 5

13 of the indictment, assess his punishment at five years

14 in the Texas Department of Criminal Justice and a fine

15:07:11 15 of $5,000.

16 We, the jury, find that the information

17 contained in the defendant's written, sworn motion for

18 community supervision is true.

19 We, the jury, having found the

15:07:24 20 information in the defendant's written, sworn motion to

21 be true, recommend that the defendant be placed on

22 community supervision.

23 Punishment Special Issue No. 1:

24 We, the jury, having found the defendant,

15:07:45 25 Sammy Carl Williams, guilty in the above-titled and

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15:07:48 1 numbered cause, also do find that Nicolas Mata Sr. has

2 suffered pecuniary loss in the amount of $98,121.85 as

3 a result of the defendant's conduct and, therefore,

4 order that amount be paid in restitution to Nicolas

15:08:05 5 Mata Sr.

6 Each of these verdict forms, including

7 the Special Punishment Special Issue No. 1, was signed

8 by the foreman of the jury.

9 Is there a request to poll the jury?

15:08:24 10 MR. SNODGRASS: No, Your Honor.

11 MR. MUNK: No, Your Honor.

12 THE COURT: You may be seated.

13 We have reached the end of your

14 responsibilities in this. However, I am going to

15:08:53 15 proceed with the sentencing of the defendant based on

16 the verdict that you have rendered. And is it

17 agreeable with you for you to stay until I do the

18 sentencing?

19 THE JURY: Yes, ma'am.

15:09:11 20 THE COURT: Okay. And let me ask you,

21 Mr. Williams, are you satisfied with the legal

22 representation that's been provided by your attorneys?

23 THE DEFENDANT: Yes, Your Honor.

24 THE COURT: Okay. The Court does find

15:09:31 25 that a deadly weapon was used in the commission of the

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15:09:36 1 offense in this case. And also -- I guess that's my

2 only finding at this time.

3 Let the record reflect that in Cause

4 Number 14-3151, the State of Texas versus Sammy Carl

15:10:01 5 Williams, that the attorney for the State of Texas, the

6 attorney for the defendant, and the defendant are

7 present in the courtroom.

8 This case was tried before this Court and

9 a jury beginning on Friday, August 15th, 2014.

15:10:15 10 Sammy Carl Williams, you came before this

11 Court and a jury and entered a plea of not guilty to

12 the offenses as set out in the indictment. The

13 evidence was submitted, and the jury was charged by the

14 Court. And after de- -- deliberating, the jury has

15:10:31 15 returned a verdict finding you guilty of those offenses

16 as set out in the indictment.

17 And your punishment was assessed also by

18 this jury in the verdict forms that have been provided

19 in the Court's charge to the jury on the punishment

15:10:49 20 phase.

21 It is the judgment of this Court that you

22 are guilty in Cause Number 14-3151 and that you be

23 punished in accordance with the jury's verdict.

24 Do you have any legal reason why sentence

15:11:03 25 should not be pronounced?

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15:11:05 1 MR. SNODGRASS: No, Your Honor.

2 THE COURT: Finding nothing to bar the

3 pronouncement of sentence against you, Sammy Carl

4 Williams, I sentence you to serve, according to the

15:11:25 5 verdict, ten years to the Texas Department of Criminal

6 Justice in Count 1.

7 In Count 2, ten years in the Department

8 of Criminal Justice.

9 In Count 3, ten years in the Texas

15:11:43 10 Department of Criminal Justice.

11 Count 4, two years in the Texas

12 Department of Criminal Justice.

13 Count 5, five years in the Texas

14 Department of Criminal Justice.

15:12:06 15 In Counts 1, 2, 3, 4, there is also a

16 fine in the amount of $10,000 in each of those. In

17 Count 5, the fine is $5,000.

18 The jury has recommended in this case

19 that you be placed on community supervision, and they

15:13:10 20 have recommended that in each count -- 1, 2, 3, 4 and

21 5. The Court suspends the sentence in each of those

22 counts and places you under community supervision.

23 In Count 1, period of ten years.

24 Count 2, ten years.

15:13:38 25 Count 3, ten years.

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15:13:41 1 Count 4, two years.

2 And Count 5, five years.

3 In addition, the jury has found that

4 Nicolas Mata Sr. has suffered pecuniary loss in the

15:14:04 5 amount of $98,121.85. The Court orders restitution in

6 that amount.

7 You may be seated. I need to give some

8 conditions of community supervision at this time.

9 MR. MUNK: Judge, may we approach?

15:14:43 10 THE COURT: You may.

11 (Bench conference:)

12 MR. MUNK: Judge, is it too late to poll?

13 Because the jury is very confused.

14 THE COURT: I already asked them. They

15:14:49 15 said no.

16 MR. MUNK: I know --

17 THE COURT: I mean, I asked you-all if you

18 wanted a poll and you-all said no.

19 MR. MUNK: I don't believe that this is

15:14:55 20 the unanimous verdict of the jury, Your Honor.

21 THE COURT: It was answered that it was.

22 MR. SNODGRASS: Your Honor, I think the

23 jurors' verdicts have been received.

24 THE COURT: It has been, and it has been

15:15:07 25 read.

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15:15:08 1 MR. MUNK: I know. But he hasn't been

2 sentenced yet.

3 THE COURT: Yes, he has. What do you

4 think I just did?

15:15:13 5 MR. MUNK: The jury ought -- Judge, I

6 don't think it's a unanimous verdict --

7 THE COURT: Well, I asked them, and they

8 said yes.

9 MR. MUNK: Well, the foreman said yes.

15:15:22 10 THE COURT: Yes. And she's the one that's

11 responsible for answering that.

12 MR. MUNK: But don't I have a right to ask

13 for a poll?

14 THE COURT: You did. And you didn't ask

15:15:31 15 for it. I asked if -- if anyone requested a poll, and

16 nobody said yes.

17 THE BAILIFF: The foreman of the jury is

18 telling me that they didn't do that right, that they

19 wanted him to get ten years and then probation.

15:16:03 20 THE COURT: There's not such a thing as

21 that.

22 THE BAILIFF: Okay. Well, that's what she

23 was saying.

24 (Within hearing of the jury.)

15:16:20 25 THE COURT: Would the attorneys please

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15:16:21 1 approach.

2 (Bench conference:)

3 THE COURT: The sheriff tells me that the

4 foreman of the jury has told him that that is not what

15:16:31 5 they -- the way I've said that, is not what they meant.

6 They -- what they were doing was ten years and then he

7 would have probation after that. I don't know what to

8 do at this point, to be truthful.

9 MR. MUNK: Could I suggest two

15:16:49 10 suggestions, Judge? First of all, I think the --

11 THE COURT: They were given instructions.

12 MR. MUNK: I understand.

13 But at this point, I think the standard

14 is manifest injustice for a mistrial. I would call

15:17:04 15 what's happened here manifest injustice. I would still

16 prefer a poll and send them back, if that is not the

17 unanimous verdict of the jury. We could avoid a

18 mistrial.

19 MR. SNODGRASS: Your Honor, the verdict's

15:17:19 20 been received. I don't know in any way, shape, form or

21 fashion how I can agree to anything other than the

22 verdict that's been received by this Court. If --

23 because I would be -- I can't imagine any Court saying I

24 wasn't per se ineffective agreeing for a Court that had

15:17:38 25 already received a verdict.

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15:17:40 1 THE COURT: And, quite honestly, I don't

2 know -- I mean, I have received a verdict. I said I was

3 receiving it. I have read it -- not only read it, but I

4 have sentenced the defendant according to the verdict.

15:17:54 5 And I have also said now all I have left to do is place

6 the conditions on the community supervision --

7 MR. SNODGRASS: And, Your Honor, since

8 you've dismissed the jurors --

9 THE COURT: -- and we gave them --

15:18:08 10 MR. MUNK: In that case, Judge, I would

11 also ask for a motion for a new trial, citing, again,

12 manifest injustice. This is not the intent --

13 MR. SNODGRASS: This isn't the point to

14 make or -- I don't think.

15:18:23 15 THE COURT: I think it was very -- it's

16 very plain. There is no question about the way these

17 are filled out. And they had the opportunity to send

18 out notes, which they did, and they were told to read

19 their instructions and follow all of the instructions

15:18:39 20 and the charge and --

21 MR. MUNK: I understand.

22 But what is clear, Judge, is that this

23 was not the unanimous verdict of the jury.

24 THE COURT: Quite honestly, there should

15:18:50 25 not be any communication coming from them right now.

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15:18:53 1 This has been very loose about what has been allowed to

2 be communicated. There should not have been a

3 communication to the sheriff at this point. I'm --

4 right now -- I'm the one that has just sentenced him.

15:19:04 5 I'm preparing to set the conditions, and I think that's

6 where we are.

7 MR. MUNK: Judge, can I get a ruling on my

8 motion for a new trial and mistrial?

9 THE COURT: Yes. Denied.

15:19:18 10 (Bench conference ends.)

11 THE COURT: Including the conditions --

12 terms and conditions that are the usual and typical ones

13 of the community supervision corrections department, the

14 Court wants to make sure that these conditions are a

15:19:53 15 part of -- of the community supervision.

16 There is to be intensive supervision for

17 a period of at least two years. That means for the

18 defendant to report weekly for at least a period of two

19 years, that the -- anything beyond that should be at

15:20:30 20 the discretion of the community supervision department;

21 The Court orders home monitoring;

22 Orders a SCRAM device to be placed on the

23 defendant for the defendant to pay for that;

24 The Court orders electronic monitoring of

15:21:01 25 the defendant;

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15:21:06 1 Court orders a -- an interlock device

2 with camera to be installed on any vehicle that the

3 defendant drives.

4 The Court is to -- the Court orders that

15:21:30 5 there is to be individual and/or group counseling at

6 the discretion of the probation department.

7 The Court orders a curfew for the

8 defendant to be in his residence between the hours of

9 9:00 p.m. and 7:00 a.m. unless he is at work or

15:22:24 10 traveling directly to or from work.

11 The Court orders that the community

12 supervision department report any violations of any of

13 the conditions that the Court has placed on the

14 defendant, as well as any violations of the general

15:23:14 15 terms and conditions that the community supervision

16 department has, that that -- any of those violations

17 reported directly to this Court.

18 The Court orders -- and the Court is --

19 understands that it is one of the general conditions or

15:24:08 20 terms of community supervision, that the defendant

21 would submit to any tests that are required by the

22 community supervision department and to pay for those

23 testing of alcohol or any drugs.

24 The Court also orders community service

15:24:43 25 hours in the amount of 1,000 hours to be performed by

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15:25:08 1 this defendant at the rate set out by his community

2 supervision officer.

3 Would the attorneys and Mr. Schoemann,

4 the community supervision officer, please approach?

15:26:11 5 (Bench conference:)

6 THE COURT: I can't think -- I don't see a

7 reason to have the home breath monitor when he has the

8 SCRAM device.

9 THE PROBATION OFFICER: Correct. The

15:26:20 10 SCRAM and the electronic monitor is basically going to

11 be -- to do the same thing.

12 THE COURT: Oh, okay.

13 THE PROBATION OFFICER: They'll cancel

14 themselves out.

15:26:27 15 THE COURT: We'll do away with one of

16 those, whichever --

17 THE PROBATION OFFICER: Okay.

18 MR. SNODGRASS: SCRAM would test for

19 alcohol.

15:26:33 20 THE COURT: And the SCRAM tests for

21 alcohol. And the electronic monitoring just -- does the

22 SCRAM show where you are also?

23 THE PROBATION OFFICER: The SCRAM will

24 tell me the times that he's submitted to the test, but

15:26:42 25 the electronic monitor then would tell me his location.

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15:26:45 1 THE COURT: I want to know his location,

2 so we need both of those.

3 THE PROBATION OFFICER: Okay. Also,

4 Judge, just for clarification, is there going to be a

15:26:52 5 driver's license suspension for the intoxication

6 assault?

7 THE COURT: Yes.

8 THE PROBATION OFFICER: Okay. Also, the

9 DWI and DWI intervention class?

15:27:01 10 THE COURT: Yes. Any classes that you

11 recommend.

12 THE PROBATION OFFICER: Okay. I think

13 those have to be separate conditions.

14 THE COURT: Okay. Let me write them down,

15:27:09 15 because I was going off of a list that I had. DWI

16 classes.

17 THE PROBATION OFFICER: DWI and DWI

18 intervention.

19 THE COURT: And intervention.

15:27:19 20 THE PROBATION OFFICER: And then the DL

21 suspension, if you're going to order that.

22 THE COURT: Off the BAC?

23 THE PROBATION OFFICER: Correct.

24 THE COURT: Okay. I forgot about that.

15:27:28 25 MR. SNODGRASS: Your Honor, there is also

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15:27:29 1 a requirement --

2 MR. MUNK: Jail time --

3 MR. SNODGRASS: -- of a minimum of 30 days

4 jail as to the intoxicated assault count.

15:27:37 5 THE COURT: Right.

6 MR. SNODGRASS: And you can impose

7 shock -- I keep misspeaking -- jail as a condition, up

8 to 180 days as to any of them, but as to the intoxicated

9 assault, there's a requirement of at least 30 days.

15:27:52 10 THE COURT: Okay. Thirty days. And how

11 many times can I do that based on --

12 MR. MUNK: It's per case --

13 MR. SNODGRASS: I think you can do up to

14 180 on any case.

15:28:00 15 THE COURT: Okay. I'm going to put 180,

16 then.

17 MR. SNODGRASS: Well, that's at your

18 discretion, then.

19 MR. MUNK: I believe the case count --

15:28:07 20 THE COURT: Well, I'm not going to do 180

21 times five. Okay.

22 THE PROBATION OFFICER: And if you'd also

23 specify -- unless you work it out with the sheriff or

24 whatever you tell him, whenever he's supposed to report

15:28:24 25 to the jail if it's going to be today or whatever.

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15:28:27 1 THE COURT: Okay. Sheriff Franklin, would

2 you please approach.

3 I think it should be today.

4 THE PROBATION OFFICER: I -- if it's going

15:28:37 5 to be day for day or credit two for one, all that stuff.

6 It has a tendency to pop up later on.

7 THE COURT: Will you be able to take him

8 into custody today by -- do you have a place if I

9 sentence him to 180 days in jail?

15:28:52 10 THE BAILIFF: I sure can.

11 THE COURT: Okay.

12 (Bench conference ends.)

13 THE COURT: As conditions of community

14 supervision, the Court also orders for the defendant to

15:29:09 15 participate in DWI classes as recommended by the

16 probation department. Also, for DWI intervention.

17 The Court orders a suspension of

18 defendant's driver's license for a period of one year.

19 That is because the blood alcohol content was point --

15:29:41 20 I think, it was .226.

21 The Court also orders as a condition of

22 his probation that he be incarcerated for 180 days in

23 the Lynn County jail and that would need to be served

24 day for day with no time for good credit -- I mean, no

15:30:07 25 good time for conduct -- no time for good conduct. And

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15:30:16 1 that will begin today. I think that takes care of the

2 conditions.

3 Do we have either the victim or a member

4 of the victim's family who wishes to speak at this time

15:31:00 5 or a victim impact statement?

6 MR. MUNK: Judge, Tommy Binford is going

7 to read it on behalf of the family.

8 THE COURT: We have a victim impact

9 statement?

15:31:20 10 MR. BINFORD: Yes, ma'am.

11 THE COURT: You may proceed with that.

12 MR. BINFORD: Thank you, Your Honor.

13 (Victim's impact statement read.)

14 THE COURT: Is there anything else?

15:35:15 15 MR. MUNK: Your Honor, I'm renewing my

16 motion for new trial and mistrial. I believe this is a

17 manifest injustice and this is not a unanimous verdict

18 of this jury, Your Honor.

19 THE COURT: Well, based on the question

15:35:27 20 that I had asked at the appropriate time to the foreman

21 of the jury and was told that there was, and a

22 requesting a poll of the jury, no one indicated one, the

23 Court denies that motion.

24 If there's nothing else, this hearing is

15:35:43 25 adjourned.

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15:35:44 1 (Within hearing of the jury.)

2 THE COURT: And let me say to you jurors,

3 the Court previously instructed you that strict secrecy

4 should be observed. That was not only for you not to

15:36:04 5 speak to anyone else, but for you not even to speak to

6 each other until you were released to go and told you

7 could begin deliberations. And the alternates were also

8 to observe that same secrecy, but they could only

9 observe the deliberations.

15:36:21 10 I'm now about to discharge you. And

11 after that discharge, you are free to discuss the case,

12 you're released from your secrecy and your

13 deliberations with anyone. However, you are also free

14 to decline to discuss the case and your deliberations

15:36:45 15 if that is what you wish.

16 After you're discharged, it would be

17 lawful for the attorney's or other persons to question

18 you to determine whether any of the standards for jury

19 conduct, which I've given you in the instructions

15:36:59 20 throughout the course of the trial, were violated, and

21 to ask you to give an affidavit to that affect.

22 What I'm telling you is that you're free

23 to discuss or not to discuss these matters. And you're

24 free to give an affidavit or to decline to give an

15:37:19 25 affidavit.

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15:37:22 1 I know this has not only been an

2 inconvenience for you, but that it has been a very

3 difficult case to listen to, to participate in, and to

4 feel that you were the ones to make the decisions about

15:37:42 5 the facts in the case and the verdict.

6 We cannot operate our system of justice

7 without people who are willing to serve as jurors.

8 We tried the case according to our rules.

9 We tried not to waste your time, but to give the time

15:38:10 10 that was needed to make sure that we had a fair and

11 impartial trial for everybody.

12 You were charged in the guilt/innocence

13 phase. You were charged in the punishment phase. And

14 you returned verdicts in both of those, with both of

15:38:36 15 those charges, several forms of verdict in each one, in

16 which your answers were quite plain as they were

17 written on the verdict forms.

18 Because we cannot operate our justice

19 system that we're so proud of without you -- I know

15:39:05 20 that people kind of cringe when they get a summons for

21 jury duty, but if you ever stop and think, the judicial

22 branch of our government is the only one in which the

23 people actively participate.

24 You can write, call, communicate some way

15:39:27 25 with those in the executive branch, whether it's on the

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15:39:31 1 state level or the federal level. You can also do that

2 with those in the legislative branch, again, whether

3 it's in our state legislature or Congress.

4 But the judicial system is the one that

15:39:47 5 really, ultimately, is closest to every system and

6 ultimately that is the one system in which the citizens

7 come in and actively participate. May it ever be so in

8 our country.

9 At this point you are finally discharged.

15:40:14 10 I personally thank you for your service and thank you

11 on behalf -- I'll speak on behalf of all of the

12 citizens of Lynn County, for your being willing to give

13 your time and your thoughts to participate in the

14 public administration of justice. You are now

15:40:40 15 discharged. Thank you very much.

16 All rise.

17 (Jury released)

18 THE COURT: We are adjourned. Thank you

19 very much.

15:41:38 20 (Proceedings concluded.)

J'Lyn Sauseda, CSR 806-872-3740 jlynsauseda@yahoo.com TRIAL ON THE MERITS - PUNISHMENT PHASE August 20, 2014 148

1 STATE OF TEXAS

2 COUNTY OF LYNN

4 I, J'Lyn Sauseda, Official Court Reporter in and for

5 the 106th District Court of Lynn County, State of Texas,

6 do hereby certify that the above and foregoing contains

7 a true and correct transcription of all portions of

8 evidence and other proceedings requested in writing by

9 counsel for the parties to be included in this volume of

10 the Reporter's Record in the above-styled and numbered

11 cause, all of which occurred in open court or in

12 chambers and were reported by me.

13 I further certify that this Reporter's Record of the

14 proceedings truly and correctly reflects the exhibits,

15 if any, offered by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $5,268.00 and

18 was paid/will be paid by Michael Munk, District

19 Attorney.

20 /s/ J'Lyn Sauseda

21 J'Lyn Sauseda, CSR Texas CSR 7890 22 Official Court Reporter 106th District Court 23 Lynn County, Texas 400 South 1st, Suite 302 24 Lamesa, Texas 79331 Telephone: 806-872-3740 25 Expiration: 12/31/15

J'Lyn Sauseda, CSR 806-872-3740 jlynsauseda@yahoo.com APPENDIX B In The Court of Appeals Seventh District of Texas at Amarillo

On Appeal from the 106th District Court Lynn County, Texas Trial Court No. 14-3151, Honorable Carter T. Schildknecht, Presiding

September 22, 2015

OPINION

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellee, Sammy Carl Williams, was tried on five felony counts arising out of a

motor vehicle collision. The jury found appellee guilty of two counts of aggravated

assault,1 intoxication assault,2 and two counts of failure to stop and render aid.3

Further, the jury found that appellee used a deadly weapon in each of the offenses for

1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). 2 See id. § 49.07(a)(1) (West 2011). 3 See TEX. TRANSP. CODE ANN. § 550.021(a) (West Supp. 2014). which they found him guilty. After hearing evidence on the issue of punishment, the jury

returned sentences of ten years’ confinement and a fine of $10,000 on count 1

(aggravated assault), ten years’ confinement and a fine of $10,000 on count 2

(intoxication assault), ten years’ confinement and a fine of $10,000 on count 3 (failure

to stop and render aid), two years’ confinement and a fine of $10,000 on count 4

(aggravated assault), and five years’ confinement and a fine of $5,000 on count 5

(failure to stop and render aid). On each punishment verdict form, the jury found that

appellee’s sworn motion for community supervision was true and, on each punishment

verdict form, the jury recommended that appellee be placed on community supervision.

The State appeals from the judgment placing appellee on community supervision. We

dismiss the State’s appeal for want of jurisdiction.

Factual and Procedural Background

The facts that underline appellee’s conviction are not at issue before this Court.

We will discuss only so much of the factual background as is necessary for this opinion.

All charges filed against appellee arose out of a collision between appellee’s

vehicle and the vehicle belonging to the Mata family. As a result of the collision, a minor

who was riding in the Mata vehicle had his leg amputated and the driver of the Mata

vehicle suffered broken ribs. Appellee fled the scene and was apprehended later.

Initially, the State filed a single indictment against appellee alleging the six different

counts.4 After plea negotiations broke down, the State reindicted appellee in three

separate indictments which alleged the same offenses as the initial single indictment.

4 Prior to trial, the State dismissed a count alleging injury to a child.

2 Appellee filed a motion to consolidate all offenses for trial. The trial court granted

the motion. The State filed a petition for writ of mandamus with this Court seeking to

order the trial court to withdraw her order of consolidation. We denied the mandamus

application. See In re Munk, No. 07-14-00308-CV, 2014 Tex. App. LEXIS 9085, at *5

(Tex. App.—Amarillo Aug. 15, 2014, no pet.) (mem. op.).

The matter proceeded to trial on a single indictment alleging the five counts

previously outlined. After the jury had found appellee guilty of each count and the jury

had heard the evidence regarding punishment, the jury advised the trial court it had

reached its verdict on punishment. The jury was recalled to the courtroom, and the

presiding juror advised the trial court that they had reached a verdict. The presiding

juror was then asked if the verdict contained on each of the separate five verdict forms

was the unanimous verdict of the jury, to which she replied, “Yes, ma’am.” The trial

court then read the jury’s punishment verdict on each of the five counts on which

appellee had been convicted. After reading the verdicts aloud, the trial court asked, “[I]s

there a request to poll the jury?” Each party answered, “No, Your Honor.” The trial

court advised the jury that the jury had reached the end of their responsibilities but

allowed the jurors, if they desired, to remain in the courtroom. Immediately thereafter,

the trial court sentenced appellee in accordance with the verdicts received from the jury.

It was only after appellee had been sentenced that the State’s attorney

approached the bench and asked, “[I]s it too late to poll?” The trial court advised the

State’s attorney that he had declined to poll the jury after the verdict had been received

by the trial court. The State contended that the jury was confused and that he did not

believe that this was a unanimous verdict, whereupon, the trial court reminded the

3 attorney that the presiding juror had stated it was a unanimous verdict. The colloquy

between the State’s attorney and the trial court continued for several minutes. At the

conclusion, the bailiff advised the trial court that the presiding juror had indicated that

the jury wanted appellee to serve his terms of confinement and then receive probation.

The trial court then stated, “There’s no such thing as that.” After more discussion, the

State moved for a mistrial, which the trial court denied.

The State now appeals via seven issues. The State’s first six issues stem from

the events that followed the jury’s return of the verdicts on punishment. In these issues,

the State attacks the failure of the trial court to conduct a jury poll, either upon the

State’s request following receipt of the verdicts or sua sponte, that the verdict entered

was not the verdict intended by the jury, that the verdict rendered by the jury could not

be entered because of the deadly weapon finding, or that the manifest injustice of the

verdict demands a new trial. The State’s seventh issue contends that three indictments

were unlawfully consolidated for trial.

For the reasons that we set forth below, we will dismiss the State’s appeal for

lack of jurisdiction.

Jurisdiction

As a reviewing court, we have the duty to make an initial determination of

whether the Court has the jurisdiction to resolve the matter presented before it. See

State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) (en banc), overruled on

other grounds by State v. Medrano, 67 S.W.3d 892, 901-03 (Tex. Crim. App. 2002) (en

banc). The right to appeal is a right conferred and defined by statute. See Marin v.

4 State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). This is particularly important where

the appealing party, the State, has a limited right of appeal. See TEX. CODE CRIM. PROC.

ANN. art. 44.01 (West Supp. 2014) (setting forth when the State may appeal).5

A review of the State’s first six issues leads to the conclusion that the State is

contending that the sentence imposed by the trial court was improper because it did not

reflect what the State contends was the true intention of the jury. Classifying the State’s

issues as such is important because of the limitation of the State’s right of appeal as set

forth in the Texas Code of Criminal Procedure. See id. Article 44.01 provides, as is

relevant to this discussion, that “[t]he [S]tate is entitled to appeal a sentence on the

ground that the sentence is illegal.” Art. 44.01(b). As pointed out by the Texas Court of

Criminal Appeals in State v. Baize, “the Court of Appeals may look behind the State’s

facial allegation of what it is appealing to determine whether it is in fact ‘appealing a

sentence and not something else.’” State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim.

App. 1998) (en banc) (per curiam) (differentiating between “assessment of punishment”

and “sentence” and quoting State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997)

(en banc)). Ross directs that our jurisdiction turns on whether the State appeals a

“sentence.” Ross, 953 S.W.2d at 949. If we determine the State is appealing a

“sentence,” we may then address the issue of the legality of the sentence on its merits.

Id.

In answering the questions posed by Ross and while performing the analysis

required by Baize, we first look at how the term “sentence” is defined. Article 42.02

5 Further reference to the Texas Code of Criminal Procedure will be by reference to “Article ____,” “Art. ____,” or “article ____.”

5 says that a sentence is that part of the judgment, or order revoking a suspension of the

imposition of a sentence, that orders that the punishment be carried into execution in

the manner prescribed by law. Art. 42.02. According to Baize, a sentence is the

punishment, not the act of assessing the punishment. Baize, 981 S.W. at 206. In State

v. Kersh, the Texas Court of Criminal Appeals delineated what a sentence is by

explaining that the sentence “consists of the facts of the punishment itself, including the

date of commencement of the sentence, its duration, and the concurrent or cumulative

nature of the terms of confinement and the amount of fine, if any.” State v. Kersh, 127

S.W.3d 775, 777 (Tex. Crim. App. 2004) (en banc).

With the foregoing guidance in mind, we turn to the issues presented by the

State. Issues one through six complain about (1) the failure of the trial court to poll the

jury after the verdict had been received and sentence pronounced, (2) that the written

verdict was not the true intention of the jury, (3) the failure of the trial court to order the

jury to deliberate further, (4) the verdict was not assented to by all twelve jurors, (5) trial

court’s sentence was illegal because a deadly weapon finding had been returned, and

(6) the verdict was manifestly unjust. When the issues are examined in detail, the

following becomes clear: the State is complaining about the process of obtaining the

verdicts; specifically, it complains about the events that followed the trial court’s actual

receipt of the verdict.

The record is clear that the trial court received the verdict and ascertained

through questioning the presiding juror that the verdict was unanimous. Both parties

declined the trial court’s invitation to poll the jury. Following that, the trial court

sentenced appellee to the sentences returned by the jury. No one disputes that notion.

6 Further, no one disputes that the sentences handed down by the jury were legal

sentences, that is to say, within the parameters for the minimum and maximum

sentences set by the legislature. Only after the trial court pronounced sentence against

appellee, and then proceeded to go over the terms and conditions of probation, did any

issue arise. No matter how you couch the issues, at the end of the day, the State is

complaining about the process of arriving at the jury verdicts on each guilty verdict that

resulted in appellee being granted probation. The jury returned the verdicts that the trial

court read and now the State asserts that these were not what the jury intended. As

was stated in Baize, a challenge to the procedure leading to imposition of the sentence

does not provide the State with standing to appeal pursuant to article 44.01(b). See

Baize, 981 S.W.2d at 206. As close as the State comes to appealing the sentence is in

the fifth issue when it contends that the trial court ignored the jury’s verdict in granting

probation and thereby sentenced the defendant to an illegal sentence. However, a

review of the issue reveals that the State’s issue is prefaced on the failure of the trial

court to do those things complained of in issues one through four. Again, this is a

complaint about the process of arriving at the verdict. See id. For the reasons

heretofore stated, we are without jurisdiction to entertain the State’s first six issues.

The State’s seventh issue is directed at the trial court’s granting appellee’s

motion to consolidate three indictments for trial. The State argues that the act of

consolidation for trial the three indictments into one single indictment meant that the two

consolidated indictments were dismissed. Thus, according to the State’s theory, they

may appeal pursuant to article 44.01(a)(1). See art. 44.01(a)(1). The provision in

question provides as follows:

7 (a) the state is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or a complaint or any portion of an indictment, information or complaint

What the State has not provided the Court is any authority for the proposition

that, for purposes of article 44.01(a)(1), an order of consolidation operates or serves to

dismiss the charges contained in the indictments that were consolidated into a single

indictment. Indeed, all of the authority submitted by the State goes to the question of

whether a trial court abuses its discretion in ordering a consolidation of indictments for

trial. This issue was addressed by this Court in a mandamus action brought by the

State before the instant trial commenced. See In re Munk, 2014 Tex. App. LEXIS 9085,

at *5. In that opinion, we found that the trial court did not abuse its discretion in granting

the appellee’s motion to consolidate the three indictments for trial. Further, the record

reflects that appellee was called to enter a plea to each of the charges contained in the

three previous indictments.6 Finally, the judgment reflects that appellee was found

guilty of each of the five charges and a jury returned a punishment verdict on each of

the five charges. As a result, we find there was no dismissal of an indictment within the

meaning of article 44.01(a)(1) in the order of consolidation. Accordingly, the State has

not brought an appeal of the dismissal of an indictment for purposes of article

44.01(a)(1) and we are without jurisdiction to entertain the question presented by the

State’s seventh issue.

6 The exception being the injury-to-a-child count that the State dismissed prior to trial.

8 Conclusion

Having determined that the State’s appeal does not properly invoke the

jurisdiction of the Court, we dismiss the appeal for want of jurisdiction.

Mackey K. Hancock Justice

Publish.

9 APPENDIX C Page 1

Caution As of: Oct 20, 2015

THE STATE OF TEXAS v. JOEL RAY BAIZE, Appellant

NO. 926-97

COURT OF CRIMINAL APPEALS OF TEXAS

981 S.W.2d 204; 1998 Tex. Crim. App. LEXIS 165

December 9, 1998, Delivered

PRIOR HISTORY: [**1] FROM THE SEV- granted the State's petition for discretionary review to ENTH COURT OF APPEALS. LUBBOCK COUNTY. determine the whether State may appeal the trial court's assessment of punishment under these circumstances. DISPOSITION: Affirmed. 1 Article 37.07, § 2(b), V.A.C.C.P. provides that the trial court shall assess punishment unless COUNSEL: Daniel W. Hurley, Aaron R. Clements, the defendant elects in writing prior to the begin- Lubbock. ning of voir dire for the jury to assess punish- ment. However, "if a finding of guilty is returned, John S. Klassen, DA Pro Tem, Office of the Attorney the defendant may, with the consent of the attor- General, Austin. ney for the state, change his election of one who assesses the punishment." JUDGES: McCormick, P.J. filed dissenting opinion in [**2] which Mansfield, J. and Womack, J. joined. Keller, J. dissents. Article 44.01(b) provides, "The state is entitled to appeal a sentence in a case on the ground that the sen- OPINION tence is illegal." The Court of Appeals addressed the meaning of "illegal sentence," applying a statutory con- [*205] ON STATE'S'S PETITION FOR DIS- struction analysis. See Boykin v. State, 818 S.W.2d 782 CRETIONARY REVIEW (Tex.Cr.App. 1991). It determined that when the State was given the right to appeal in 1987, "illegal sentence" PER CURIAM OPINION had acquired a technical or particular meaning -- a sen- Appellee was convicted by a jury of criminally neg- tence the trial court had no jurisdiction to levy or one ligent homicide, and the trial court assessed punishment which violates a fundamental [*206] constitutional at sixty days in jail and a $ 500 fine, both of which were right. Baize, 947 S.W.2d at 311. probated. The State appealed pursuant to Article At the time of its opinion, the Court of Appeals did 44.01(b), V.A.C.C.P., claiming the sentence was illegal not have the benefit of our decision in Ross v. State, 953 because the trial court allowed Appellee to untimely S.W.2d 748 (Tex.Cr.App. 1997), in which we held that change his election for the jury to assess punishment for purposes of Art. 44.01(b), "sentence" has the same over the State's objection. 1 The Court of Appeals dis- meaning as in Article 42.02, V.A.C.C.P. The current ver- missed the appeal for lack of jurisdiction. Baize v. sion of Art. 42.02 provides, "The sentence is that part of State, 947 S.W.2d 307 (Tex.App.--Amarillo 1997). We the judgment, or order revoking a suspension of the im- Page 2 981 S.W.2d 204, *; 1998 Tex. Crim. App. LEXIS 165, **

position of a sentence, that orders that the punishment be 1992)(defendant is not bound by punishment carried into execution in the manner prescribed by law." election made at original trial when cause is re- The State acknowledges this definition of "sentence," versed and remanded for new punishment hear- and it contends that the plain meaning of "illegal" is "not ing). according [**3] to or authorized by law." From this it [**5] Although it could be argued that jurisdiction reasons that because the trial court's assessment of pun- is vested by the State's mere assertion that it is appealing ishment was not according to or authorized by Art. the sentence, the Court of Appeals must determine 37.07, § 2(b), an illegal sentence resulted. whether it has jurisdiction. Therefore, the Court of Ap- The State's analysis is flawed for two reasons. First, peals may look behind the State's facial allegation of it attempts to define "illegal sentence" instead of "sen- what it is appealing to determine whether it is in fact tence". 2 In Ross, we explained that when a court of ap- "appealing a sentence and not something else." Ross, 953 peals contemplates its jurisdiction under Art. 44.01(b), it S.W.2d at 750. In the instant case, even if the trial court's must determine whether the State is appealing the sen- act of assessing punishment was not authorized, there is tence or whether it is appealing something other than the no showing that the punishment itself or the order carry- sentence. Id. at 750. We pointed out that Art. 44.01(b) ing the punishment into execution was illegal. Thus, the allows the State to appeal "a sentence not when a sen- State is not appealing the sentence, but the procedure tence is illegal, but on the ground that it is illegal." Ibid. leading to the assessment of punishment. The Court of (emphasis in original). Second, the State's argument in- Appeals does not have jurisdiction under these circum- correctly substitutes "assessment of punishment" for stances. "sentence." Again, this is contrary to Ross, which held In addition to its argument that illegal assessment of that "sentence" has a narrow meaning. Consistent with punishment and illegal sentence are synonymous, the our holding in Ross, the meaning of sentence in Art. State also argues that this particular error in assessment 44.01(b) is not the same as the act of assessing punish- of punishment renders the resulting sentence illegal. We ment. 3 need not address this claim because it deals with the merits of the appeal. The issue before us is jurisdiction- 2 The State's focus on the meaning of "illegal al--whether the State is appealing a sentence on the sentence" instead of "sentence" is understandable, ground that it is illegal--not [**6] whether the sentence since the Court of Appeals took this approach in is illegal. 953 S.W.2d at 749-50. deciding the issue. [**4] The Court of Appeals did not have jurisdiction under 3 The State submits that Art. 44.01 should be Art. 44.01(b), because the State was not appealing the construed liberally in keeping with the legisla- sentence on the [*207] grounds that it was illegal. ture's intent to grant the State extensive appellate Accordingly, the judgment of the Court of Appeals dis- rights. It argues the legislature intended that the missing the appeal is affirmed. State's rights under Art. 37.07, § (2)(b) be real- PER CURIAM ized. We addressed this concern in Ross, when we construed the meaning of "sentence". Ross, DELIVERED: December 9, 1998 953 S.W.2d at 750-51. In the present situation, the State is not without a remedy, as it may en- DISSENT BY: McCORMICK force a ministerial duty through mandamus or prohibition. We appreciate the State's complaint DISSENT that mandamus is not a fail-safe means of cor- recting this type of error. As the State points out, DISSENTING OPINION ON STATE'S the trial judge can prevent the prosecutor from seeking mandamus relief by refusing to grant a PETITION FOR DISCRETIONARY REVIEW recess in the proceedings. However, the short- I dissent to affirming the Court of Appeals' deci- comings of mandamus do not permit this Court to sion to dismiss the State's appeal. We granted the fashion another remedy for procedural violations State's petition for discretionary review to determine when the legislature has not seen fit to do so. whether the State may appeal the trial court's assessment Furthermore, even if the Court of Appeals exer- of punishment when it was unauthorized by Article cised its jurisdiction in this case and reversed and 37.07, Section 2(b), V.A.C.C.P. I disagree with the remanded for a new trial, Appellee could argua- majority's reasoning and would therefore reverse the bly elect for the trial court to assess punishment, decision of the Court of Appeals. regardless of the State's consent. See Saldana v. State, 826 S.W.2d 948 (Tex.Cr.App. Page 3 981 S.W.2d 204, *; 1998 Tex. Crim. App. LEXIS 165, **

The Court of Appeals chose not to exercise juris- to absurd consequences that the Legislature could not diction in this case because it decided that the State possibly have intended. Id. at 785. When reviewing the had failed to satisfy the indicia of an illegal sentence. literal text of the statute, this Court will read the words The Court of Appeals concluded that "an illegal sentence and phrases of the statute in context and construe them is, at the very least, one which the court had no jurisdic- "according to the rules of grammar and common usage." tion to levy or one which violates a fundamental consti- Tex. Gov't Code Ann., Section 311.011(a). And where tutional right." State [**7] v. Baize, 947 S.W.2d 307, the statute is "clear and unambiguous, the Legisla- 311 (Tex.App.-Amarillo 1997, pet. granted). The Court ture must be understood to mean what it has ex- of Appeals cited to numerous cases supporting its deci- pressed, and it is not for the courts to add or subtract sion that an "illegal sentence" involves more than proce- from such a statute." Coit v. State, 808 S.W.2d 473, dural error and that an "illegal sentence" must either 475 (Tex.Cr.App. 1991). The plain meaning of the terms trammel jurisdictional limitations or fundamental consti- in Article 44.01(b) permits the State to appeal this sen- tutional principles. Id. at 310. In this case, the Court of tence because the sentence imposed by the trial court is Appeals has narrowly construed the scope of Article illegal. The dictionary defines "illegal" as "not author- 44.01(b), and has therefore failed to realize fully the leg- ized [*208] by law; illicit; unlawful; contrary to law." islative intent behind the statute. The issue before us is to Black's Law Dictionary (4th ed.) 882 (1951). 1 The sen- decide whether the State may appeal, pursuant to Article tence in this case is illegal because it is not authorized by 44.01(b), V.A.C.C.P., the trial court's assessment of law, namely in accordance with Article 37.07, Section punishment based upon the ground that the sentence 2(b), V.A.C.C.P., which provides: is illegal. 1 See Fairow v. State, 943 S.W.2d 895, In State v. Ross, 953 S.W.2d 748, this Court claims 904-05 (Tex.Cr.App. 1997)(Meyers, J., cites to to have applied the plain meaning to the term "sen- the Webster Dictionary definition of "opinion" tence." The majority in that case elected to rely upon to resolve issue presented regarding lay wit- the definition of "sentence" as defined in Article ness opinion testimony); State v. Johnson, 939 42.02, V.A.C.C.P. which states, "The sentence is that S.W.2d 586, 587 (Tex.Cr.App. 1996)(Meyers, J., part of the judgment, or order revoking a suspension cites to the New Merriam-Webster Dictionary of the imposition of a sentence, that orders that the definition of "other" to address exclusionary punishment be carried into execution in the manner statute prohibiting admission of evidence ille- prescribed by law." This Court held that a sentence gally obtained by an officer or other person); only includes [**8] facts regarding length of pun- and Bingham v. State, 915 S.W.2d 9, 10 ishment and assessment of a fine. However, a "sen- (Tex.Cr.App. 1994)(Meyers, J., applies the New tence" would not include other aspects of the judg- Merriam-Webster Dictionary definition of ment which merely affect the terms of punishment "testimony" for purposes of corroboration (i.e. the jury verdict, the offense for which defendant requirement for testimony by accomplice). is convicted and any affirmative findings). 953 S.W.2d at 750. The majority in Ross established that a [**10] "Except as provided in Article 37.071, if a "sentence" would not incorporate an affirmative deadly finding of guilt is returned, it shall then be the responsi- weapon finding, and that the trial court's failure to make bility of the judge to assess the punishment applicable to the deadly weapon finding in the judgment was therefore the offense; provided, however, that (1) in any criminal unappealable by the State under Section 44.01(b). As a action where the jury may recommend probation and the result, a narrow interpretation of the statute was created defendant filed his sworn motion for probation before the contrary to legislative intent. The majority's decision did trial began, and (2) in other cases where the defendant so nothing more than to define a "sentence" to be only that elects in writing before the commencement of the voir "portion of the criminal judgment setting out the terms of dire examination of the jury panel, the punishment shall punishment." 953 S.W.2d at 750-51. be assessed by the same jury, except as provided in Arti- cle 44.29. If a finding of guilty is returned, the defendant It is incumbent upon this Court to discover and may, with the consent of the attorney for the state, effectuate the legislative intent or purpose of an un- change his election of one who assesses the punishment." derlying statute. Boykin v. State, 818 S.W.2d 782 (Emphasis added). (Tex.Cr.App. 1991). In doing so, we must focus our at- tention on the literal text of the statute in question and In the case at bar, the State did not consent to appel- attempt to discern the fair, objective meaning of that text lee changing his election of who assessed punishment. at the time of its enactment. Id [**9] . at 785. Under The trial court dismissed the jury and assessed a sentence Boykin, we must apply the "plain meaning" to the statute without the consent of the State. This violated Article unless application of the statute's literal text would lead Page 4 981 S.W.2d 204, *; 1998 Tex. Crim. App. LEXIS 165, **

37.07, Section 2(b), and is therefore an illegal sentence McCormick, Presiding Judge which is appealable by the State. (Delivered December 9, 1998) The majority in the instant case fails to apply the En Banc plain meaning to the statute, but rather continues to fol- low the narrow [**11] construction of Article 44.01 Mansfield and Womack, JJ., join this dissenting established in Ross. This Court should overrule the opinion holding in Ross. It is for these reasons briefly mentioned that I respectfully dissent.