Clemons v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of the offense of involuntary manslaughter. Punishment was assessed by the jury at imprisonment in the Texas Department of Corrections for “not more than ten years.” The conviction was reversed and remanded by the Court of Appeals for the Tenth Supreme Judicial District in a published opinion. Clemons v. Texas, 671 S.W.2d 552 (1983).

The Court of Appeals reversed and remanded the conviction for unassigned error on appeal because the jury verdict assessed punishment at “not more than ten years” which was not definite and certain in assessing a specific punishment. The verdict was held void as a result of the indefinite punishment. See Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286, 288 (1944).

The trial court charged the jury as follows:

“... Therefore, you will assess the punishment of the defendant at confinement in the Texas Department of Corrections for a term of not more than ten (10) years or less than two (2) years.... ”

The jury answered the charge of the court in the following manner:

“We, the jury having found the defendant herein guilty of the offense of Involuntary Manslaughter, assess his punishment at not more than (10) ten years in the Texas Dept, of Corrections... .’¹

The trial court received and read the jury’s verdict without any objection by appellant. The trial court accepted the verdict and then adjudged appellant’s punishment to be confinement in the Texas Department of Corrections “for a term of ten (10) years.” Upon this judgment, appellant was sentenced to confinement for a term of not less than two nor more than ten years. Appellant did not raise any objection to the form of the verdict in the trial court or on appeal.

A verdict must be certain, consistent and definite. It may not be conditional, qualified, speculative, inconclusive or ambiguous. Eads v. State, 598 S.W.2d 304, 306 (Tex.Cr.App.1980). An incomplete or unresponsive verdict should not be received by the court. Id. The jury in the present case answered the court’s charge literally by assessing appellant’s punishment at “not more than ten years.” It appears that the jury intended to assess appellant the maximum verdict allowed under the Penal Code. See V.T.C.A., Penal Code Secs. 19.-05(c), 12.34(a). No objection was made by the state or appellant when the verdict was read and the trial court entered appellant’s judgment and sentence. It is clear that everyone involved in the case understood “not more than ten years” to mean “ten years.”

The Court of Appeals relied on the case of Villarreal v. State, 166 Tex.Cr.R. 616, 317 S.W.2d 531 (1958) in their opinion. In Villarreal the jury assessed the defendant’s punishment “at confinement in the penitentiary for not more than two years.” The judgment entered on the verdict recited that the defendant be punished by confinement in the state penitentiary for not more than two years. This Court held that both the verdict and the judgment were indefinite and uncertain and therefore void. Id. at 532. The judgment in the present case recites appellant’s punishment to be confinement in the Texas Department of Corrections “for a term of ten (10) years.” The judgment is definite and certain in this case as distinguished from the judgment in Villarreal. The trial court construed the jury’s answer to the charge to mean ten years. As construed by the trial court, the verdict is not open to another construction other than ten years. This was the correct construction of the jury’s verdict especially in absence of any objection from appellant, both at the trial level and on appeal.

The judgment of the Court of Appeals is reversed and the cause is remanded for consideration of appellant’s grounds of error.

MILLER, J., dissents.

1 . The phrase "not more than (10) years in the Texas Department of Corrections” was hand printed by the jury.