Berghahn v. State , 1983 Tex. App. LEXIS 5384 ( 1983 )

OPINION

HUGHES, Justice.

Arthur Henry Berghahn has appealed his conviction for the murder of his 7-year old stepson, Gregory Alan Poore. Berghahn pled not guilty to the charge, and the case was tried before a jury which found him guilty and assessed his punishment at ninety-nine (99) years confinement in the Texas Department of Corrections.

We reverse and remand.

Berghahn raises seven grounds of error on appeal. Due to our disposition of the case we find it necessary to only address ground of error five in which Berghahn contends that the charge of the court on guilt/innocence is fundamentally defective because it failed to include a form for a “not guilty” verdict. In response, the State argues that any error in the verdict form was waived; that Berghahn cannot create reversible error by his own manipulation; and that in light of the record, the absence of the “not guilty” verdict form was not calculated to injure Berghahn’s rights nor deny him a fair and impartial trial.

The charge given to the jury instructed them on the law of murder, voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, reckless injury to a child and criminally negligent injury to a child. They were also instructed that they could find Berghahn not guilty. The last page of the charge stated that the jury must unanimously agree upon a verdict and that suitable forms for their verdict were attached to the charge. The verdict form which was attached is as follows:

We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Murder.

Foreman of the jury We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Voluntary Manslaughter.

Foreman of the jury

We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Involuntary Manslaughter.

Foreman of the jury

We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Criminally Negligent Homicide.

Foreman of the jury

We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Reckless Injury to a Child.

Foreman of the jury

We, the jury, find the defendant, Arthur Henry Berghahn, Guilty of the offense of Criminally Negligent Injury to a Child.

Foreman of the jury

Nowhere was a form provided on which the jury could find Berghahn “not guilty.”

In this case, the court instructed the jury that “suitable forms for your verdict are hereto attached,” and the only forms provided found the defendant guilty. Such action in effect amounted to an instruction by the court to find Berghahn guilty. The error is fundamental and requires that the case be reversed and remanded for a new trial.

Reversed and remanded.