Barbara A. Drumheller, Houston, TX, for Appellant. Catherine Luft, Assistant District Attorney, Denton, TX, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, and ALCALA, JJ., joined.

A jury convicted appellant of manslaughter and returned a punishment verdict of six years' confinement with a recommendation that it be probated. The trial judge formally sentenced appellant. Nearly forty-five minutes later, the same “jury” returned a second punishment verdict of six years' confinement with no recommendation that it be probated. The trial judge again sentenced appellant. What happened between those two formal sentencing pronouncements is only partially reflected in the record. On appeal, appellant sought reinstatement of his probated sentence. The court of appeals held that the trial judge's decision to reconvene the jury under the particular facts in this case was harmful error, and it remanded the case to the trial court for a new punishment hearing. Neither party was satisfied with this resolution. The State argues that the court of appeals should have found the error forfeited. Appellant argues that the court of appeals should have reinstated his original, probated sentence. We conclude that appellant preserved this re-sentencing issue for appellate review, and we reinstate his original, probated sentence.

I.

Appellant was speeding southbound on a rural farm-to-market road in his silver 1999 Ford Taurus when he drove by an officer parked on the northbound shoulder. Appellant looked over his shoulder to see if the officer was turning around. As he did so, appellant inadvertently crossed into the northbound lane, hit a car driven by Kirk Wyborg head on, and killed him. Appellant, who was twenty years old at the time, told a responding paramedic that he had been driving 110 miles per hour. At trial, appellant did not recall saying that and testified that his Taurus “tops out” at 90 miles per hour. Regardless, he admitted that he sped, drove recklessly, failed to yield, and caused the accident that killed Mr. Wyborg. The only issue before the jury was whether appellant committed manslaughter or criminally negligent homicide. The jury found him guilty of manslaughter.

The State put on no new evidence in its punishment case-in-chief. Appellant testified that he had never been previously convicted of any crime and asked the jury to recommend probation. In rebuttal, the State called Mr. Wyborg's son and wife, and they asked the jury to send appellant to prison. Appellant's attorney argued for a probated sentence of less than ten years. The State argued for a non-probated sentence—one of at least sixteen years.

Deliberations began at 3:06 p.m. The jury soon sent the trial judge a note asking, “Can we recommend a specific amount of time in prison and another amount of time on probation?” At 3:26 p.m., without objection, the trial judge referred the jury back to the written charge and instructed them to continue deliberating. At 4:28 p.m., the jury returned its verdict, and the trial judge read the signed verdict form aloud:

We, the jury, having found the Defendant, DAVID COOK, guilty of the offense of Manslaughter, assess his punishment at confinement ... for six years....

We further find the defendant has never been convicted of a felony in this state or any other state, and we recommend probation of the penitentiary time.
The judge asked the presiding juror, “Is that the unanimous verdict of the jury?” He stated, “It is.” Neither side requested a jury poll. The judge thanked the jurors and discharged them.

Ladies and gentlemen, thank you very much for your service.... You are now discharged from the instructions I gave you earlier. You are free to discuss the case if you want to, but you are under no obligation to discuss the case with anyone. Sometimes the attorneys want to talk to you after the fact just ... to find out what your thoughts are and your impressions about the process are. You're free to do that if you want to, but you do not have to. You're now discharged. Thank you very much.

The jury left the courtroom at 4:30 p.m., and the judge then sentenced appellant.

Trial Judge: We want to take a short recess? Do you want to discuss anything with the jury before you do that, or you want to go right into sentencing?

Prosecutor: We're ready to proceed, Judge.

Trial Judge: All right. Be seated. Anything else before I proceed?

Prosecutor: Judge, the only thing, at this point I'd request the Court assess 180 days as a condition.

Trial Judge: All right, Mr. Cook, a jury having found your—found you guilty and set your punishment at six years—a six-year confinement, probated, I am going to now impose sentence as set by the jury. I'm sentencing you to six years confinement.... I will probate that for a period of six years. There is no fine associated with that. You will be required to complete the maximum amount of community service—which is how much in this case? 240? Correct?

Prosecutor: I believe it's 400, Judge.

Trial Judge: Four hundred? Four hundred hours of community service. I'm sentencing you to 180 days confinement in the Denton County Jail as a condition of your probation. That sentence is to begin immediately. Anything else?

Prosecutor: Nothing else on the record, Judge.

Trial Judge: All right. We're off the record.
(Brief recess.) (Open court, Defendant present.)

Trial Judge: Bring them out.
(The jury entered the courtroom at 4:37 p.m.)

Trial Judge: Be seated ... It has been brought to my attention that the jury had some question about perhaps the verdict or the verdict form. I'm going to read-well, I'm going to restate what I read here that you have assessed. You have assessed as punishment at six years confinement in the penitentiary. However, you recommended that that time be probated. That is the sentence that I have imposed, so I'm going to ask you individually if that, in fact, was the sentence that you intended and that you voted for? And do we have a list of the jurors here? All right. As I read your name, I need you to either say yes or no, no meaning that was not the sentence you intended.
The judge called four jurors' names. Each said “no.”

Trial Judge: Do we need to go any further than this?

Prosecutor: I don't think so, Judge.

Trial Judge: All right. What I'm going to do at this point is to send you back to the juryroom to continue deliberating. Please go with the bailiff.
(The jury left the courtroom at 4:39 p.m.)

Defense: Judge, I move for a mistrial.

Trial Judge: All right. That motion is denied.
(Proceedings recessed while the jury deliberated.) (Open court, Defendant present.)

Trial Judge: Bring them in, please.

Prosecutor: Judge, we will be asking to poll the jury this time.

Trial Judge: I think that might be prudent.

At 5:11 p.m., the jury returned to the courtroom and delivered a second verdict assessing six years' confinement. The paragraph recommending probation had been crossed out and initialed by the presiding juror. The trial judge polled the jury, and each juror responded that the second verdict was his or her verdict. She re-thanked the jurors and re-released them, and then re-sentenced appellant to six years in prison.

On appeal, appellant claimed that the trial judge erred when she reconvened the discharged jury, required that jury to deliberate again, and accepted a new punishment verdict. He asked the court of appeals to “reform the judgment to reflect the initial, valid, legal verdict given by the jury.” The court of appeals agreed that the trial judge improperly reconvened the jury to reconsider its verdict: “Here, the jurors separated from the visual presence of the trial court, were instructed that they were free to discuss the case with outsiders, and may have been susceptible to outside influence.” The court concluded that appellant was harmed because the jury substantively changed its written verdict from one that recommended probation to one that did not. But the court held that appellant was entitled to the specific relief he asked for at trial—a mistrial (and, hence, according to the court of appeals, a new punishment trial)—rather than the reliefhe asked for on appeal—reinstatement of the jury's original punishment verdict.

Justice Dauphinot disagreed and would “correct the judgment to reflect the sentence lawfully pronounced in open court before the jury was unlawfully recalled.”

Neither party complains about the court of appeals's resolution of the merits: the trial judge erred by recalling the discharged jury and having it re-deliberate after appellant had been formally sentenced. We limit our review to that court's implicit preservation decision and its judgment remanding the case for a new punishment hearing.

II.

A. Preservation

The State asserts that the court of appeals should not have reached the merits of appellant's complaint because he failed to comply with Texas Rule of Appellate Procedure 33.1(a). According to the State, appellant's “mistrial” objection was neither timely nor specific. It was untimely because it was not made until after the jurors were sent back to the jury room to re-deliberate, and it “was not specific enough to preserve for appellate review his current complaint—that the trial court erred in reconvening the jury and accepting a new punishment verdict.” Thus, appellant's claim is forfeited.

We disagree. We conclude that appellant's “mistrial” motion preserved error for appellate review because it was timely and specific, and he obtained an adverse ruling. First, the motion was timely. Counsel moved for a mistrial as soon as the trial judge told the former jurors to return to the jury room for a second deliberation. The State argues that, to be timely, appellant should have objected as soon as the trial judge said “Bring them in.” But the trial judge's actions were not objectionable until she sent the discharged jurors back to deliberate again. Up until that point, defense counsel may have wondered, “What is going on here? Why is the judge polling the former jurors after they have been disbanded? This is unorthodox, but my case is finished. My client got probation. And jurors can't change their minds after formal sentencing.” He had no reason to think his client's previously imposed sentence would “disappear” until the trial judge sent the discharged jurors back into the jury room. As soon as that occurred, he moved for a mistrial. Appellant was not required to be clairvoyant and anticipate that the trial judge would improperly send the dispersed jurors off to re-deliberate after sentencing until she actually did so.

Second, the “mistrial” motion informed the trial judge and opposing counsel of appellant's complaint: Everyone understood that defense counsel was saying “Stop this proceeding—whatever it is.” Indeed, the very word “mistrial” means “[a] trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings.” The basis for the motion was obvious from the post-sentencing context. At oral argument the parties agreed that there was no simple, appropriate legal objection. We question whether the trial judge or the prosecutor could have cured or ameliorated the problem in any way other than by stopping the unauthorized second sentencing deliberation. “Stop” or “I request a mistrial” is as good an objection as any under these circumstances.

There is no getting around the fact that appellant had already been sentenced and the discharged jury had dispersed outside the presence of the trial judge for seven minutes—a substantial amount of time under the circumstances. The jurors had been expressly told that they could talk about the case with others, and they obviously did; otherwise, the trial judge would not have reassembled them. Although we do not know the content of the jurors' discussions or the persons with whom they spoke, a lot of conversation can occur in seven minutes. As the court of appeals noted, there are only a couple of Texas cases discussing the reassembly of a jury to amend or correct a verdict, and in those cases the jurors had not departed out from under the watchful eye of the court. And in those cases the defendant had not already been formally sentenced.

At the time appellant moved for a mistrial, the trial was over. The original punishmentverdict was certain, consistent, and valid. It was not inconclusive, ambiguous, or legally incorrect. Appellant had been formally sentenced in accord with that valid punishment verdict. The fat lady had sung.

Counsel was objecting to a “do-over,” a unauthorized post-trial proceeding that was not a part of the trial. His “mistrial” objection was good enough to convey “Stop.” And he got an immediate adverse ruling. He complied with the requirements of Rule 33.1(a) by registering his complaint at a time when there was an opportunity to respond to it or cure it by stopping the unauthorized procedure.

We therefore conclude that the court of appeals properly made an implicit finding that appellant's sole issue was preserved for appellate review.

B. Remedy

Appellant claims that the only proper remedy is to reinstate the jury's original, probated verdict. He points to the mandatory language in Rule 43.3, dealing with the judgment of the court of appeals:

43.3 Rendition Appropriate Unless Remand Necessary. When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial.
Appellant states, “In this case, the interest of justice expressly requires the rendition of the appropriate judgment, the reinstatement of the only legal verdict and the appellant's probation. No further facts or additional enlightenment can happen during a remand.”

The State argues that this rule required a remand for a new punishment hearing because reinstating the original verdict would give effect to a jury verdict that did not reflect the jury's true intent: “Here, the record supports that the jury foreman mistakenly included probation within the first punishment verdict.... In the interests of justice, another punishment trial—a further proceeding—should be held in order to obtain a true punishment verdict.”

The State also suggests that appellant should not be allowed to complain about the appellate court's remand because “a mistrial” is what he asked for at trial. The court of appeals agreed with the State, noting, “Based on the discrepancy between the relief sought by appellant at trial (mistrial) and the relief sought on appeal (judgment on the jury's first, unintended, verdict), we cannot impose a modified or reformed judgment.”

But a new punishment hearing is not what appellant asked for at trial. He had no complaint about his trial—a trial that was over and done with. He had already been sentenced to probation. It is simply illogical to interpret his mistrial motion as a desire for a whole new punishmenthearing. Article 44.29 provides for a punishment retrial when reversible error occurs during or in the punishment stage, but, as Justice Dauphinot explained, the error in this case occurred after the punishment stage:

Here, no error was made during the punishment phase of the trial. The error was made after the punishment hearing and after the jury decided the punishment issue. The problem with remanding this case for a new trial on punishment is that the jury had finished its job of assessing Appellant's punishment before the trial court erred. The jurors determined guilt and determined punishment in a proper form. The trial court accepted the verdict and imposed the jury's punishment in open court. Appellant's sentence was probated, and he did not ask for a new trial. The trial had ended.
Rule 43.3 required the court of appeals to render the judgment that the trial judge should have rendered: A sentence of six years, probated. “Once a valid sentence is pronounced by a trial court, generally, it is accorded a measure of finality.”

The State points to the post-trial polling of four jurors as proof that the first verdict was not the “true” verdict. But we do not know what happened after the jurors had been discharged. We do know that probation was considered during the original deliberations because the jury sent out a note asking whether it could recommend a specific amount of time in prison and another amount of time on probation. It was told to refer back to the charge. One hour later, the jury came back with the verdict of six-year probated sentence.

Furthermore, when the jurors were told to re-deliberate, they did so for over thirty minutes. If the original verdict had been simply a clerical error and all jurors were always opposed to probation, the re-deliberation would have been quick—a couple of minutes at the most. Commentators have noted that a “question, which has vexed courts for years, is how far can the legal system go in opening verdicts to attack ... before the cure becomes worse than the disease.” The cure imposed by the court of appeals in this case—a new punishment trial—is worse than the disease. It is no remedy for the improper “do-over” that occurred in this case to have a second “do-over” by a new jury. The cure for any untrue or unintended verdict is already in place—the right to have the jury polled before it is discharged. Neither party asked to have the jury polled. The trial judge, content to rely on the presiding juror's confirmation that the six-year probated sentence was “the unanimous verdict of the jury,” accepted that legal verdict, discharged the jury, and sentenced appellant in open court. We therefore modify the lower court's judgment to reflect the original sentence of six years' imprisonment with probation of the penitentiary time, and we affirm the judgment as modified. KELLER, P.J., filed a concurring opinion.
HERVEY, J., filed a concurring opinion in which KEASLER, J., joined.

KELLER, P.J., filed a concurring opinion.

The Court says that when defense counsel requested a mistrial, “[e]veryone understood that defense counsel was saying ‘Stop this proceeding—whatever it is.’ ” I do not agree, and I think the Court is asking for trouble in equating the two. I would grant appellant the relief he seeks, but I would do so on a different basis.

First, the Court makes an unwarranted assumption when it says that everyone understood what defense counsel was saying. Appellant asked for a particular remedy—a mistrial. The Court assumes that the request for a mistrial clearly conveyed an implied objection: that calling the jury back and continuing the proceedings was improper. But appellant's request for a mistrial could have had a different legal basis: that discharging the jury the first time caused the jurors to be exposed to outside influences before their final deliberations. This seems to be the more natural objection, given the remedy requested. At any rate, from this record, we cannot conclude that the trial court understood appellant's complaint to be that calling the jury back was improper.

Second, the Court ascribes an incorrect meaning to the term “mistrial.” The Court seems to believe that a mistrial merely stops the proceedings, rather than putting aside the proceedings that have been conducted. But a mistrial renders nugatory what has gone before and nullifies all proceedings to that point. The Court says that the trial court erred in overruling appellant's objection, but if the trial court had granted appellant's request, this Court would not be in a position to reinstate the original verdict because it would no longer exist.

There was plenty of opportunity for either side to avoid what happened in this case. The State could have polled the jury. Defense counsel could have asked for judgment on the jury's original verdict.

Ultimately, however, I think that the trial judge's obligation to render judgment on a facially complete and correct jury verdict, after the jury has been discharged and separated, though perhaps subject to waiver, is not subject to forfeiture by inaction. Therefore, appellant's failure to lodge a proper objection does not preclude him from obtaining relief on appeal.

I respectfully concur in the Court's judgment. HERVEY, J., filed a concurring opinion in which KEASLER, J., joined.

I have a problem with this case. Long ago this Court succinctly stated,

[I]n the reassembling of the jury, it was not a mere correction of an informality in the verdict that was attempted but the rendition of an entirely different verdict. Under the verdict first received, the right of having the appellant's sentence suspended was accorded, while in that subsequently written, this privilege was denied.

It is believed that before the jurors were reassembled their identity as an organized body had ceased, and the verdict upon which the judgment rests is but the act of a collection of individuals who had previously been members of the jury. To give a verdict the vitality that will authorize the imprisonment of an individual, it is essential that it be by a jury selected and impaneled under the forms of law and that the verdict be rendered before the jury is dissolved.
Perryman v. State, 102 Tex.Crim. 531, 278 S.W. 439 (1925).

But this case presents a conundrum. The Texas Code of Criminal Procedure provides,

When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.
Tex.Code Crim. Proc. art. 37.04 (emphasis added). Although “a” verdict was read to the jury, the jury confirmed that the verdict was unanimous, and the jury was discharged, the judge reconvened the jury because she had become aware of “some question” with “the verdict or the verdict form.” The judge then began polling the jurors, revealing an obvious change in the sentence intended by the jurors. All of this occurred without objection.

In Reese v. State, 773 S.W.2d 314 (Tex.Crim.App.1989), the appellant argued that the trial court erred in not following Article 37.04 when it sent the jury back to the jury room to re-deliberate. This Court disagreed and explained,

A verdict must be certain, consistent, and definite. It may not be conditional, qualified, speculative, inconclusive, or ambiguous. An incomplete or unresponsive verdict should not be received by the court. It is not only within the power, but it is the duty of the trial judge, to reject an informal or insufficient verdict, call to the attention of the jury the informality or insufficiency, and have the same corrected with their consent, or send them out again to consider their verdict.
Id. at 317 (citations omitted).

In the case at hand, the jury clearly had a problem with the verdict form, as recognized by the trial judge when she reconvened the jury and polled four of the jurors. The record contains verdict forms on two different pages. The first page has two options, one for penitentiary time without probation and one for penitentiary time probated. Both are filled in and signed by the presiding juror. The second page only contains the option of penitentiary time probated. While it is true that the jury assented to a verdict indicating the probated sentence, the second option on page one of the verdict form, the option providing for probation, has been crossed through with three lines and was initialed by the presiding juror (the second page remains blank). We do not know when that section was crossed out, so it is possible that the jurors had filled out both portions of the verdict form, thus resulting in an inconsistent verdict. Or we could speculate that this was done at some later time. We simply do not know.

If this verdict form caused confusion and an inconsistency, the trial judge could have sent the jury back for further deliberations pursuant to Article 37.04 based on an inconsistent or conflicting verdict, which may have required an objection. See Reese, 773 S.W.2d at 317 (holding that, when the jury's original verdict forms were in conflict and insufficient, the trial judge did not err in sending the jury back to re-deliberate because the trial court had the duty to send the jury back to deliberate and the appellant did not object to the trial court's actions); see also Partida v. State, 133 S.W.3d 738, 744 (Tex.App.-Corpus Christi 2003, no pet.). But this record, without conjecture and speculation, causes this house of cards to fall against the State. Therefore, though the record is not a model of clarity, I am constrained to concur.

IMAGE

IMAGE