July-August 2017

The Steve Harvey effect

Brian Foley

Assistant District ­Attorney in ­Montgomery County

What does a prosecutor do when the wrong verdict is read in court?

“Miss Colombia!” The Miss Universe Pageant winner from Colombia glowed with excitement and beamed the brightest smile she’d cast in her whole life—but only briefly.
    “OK, folks, I have to apologize,” host Steve Harvey spoke up. He said he’d made a terrible mistake and had read the results wrong. It was actually Miss Philippines who was the winner. The cascade of human emotions—the highs and the lows—rippled through everyone who saw the broadcast in December 2015.
    Such an error was repeated by Warren Beatty and Faye Dunaway at the 2017 Academy Awards when they announced that La La Land had won Best Picture. It took a few moments—and rearranging producers, actors, and directors of two different movie casts on stage—but finally Moonlight was correctly identified as the award winner.
    Sometimes, in high-pressure, stressful moments, the wrong result is read aloud—but that doesn’t change the truth, and it is easily corrected. Apparently that is also true in court when a prosecutor’s nightmare turns into just a weird dream.

Hernandez v. State
Hector Vargas Hernandez stood in the 404th District Court of Cameron County waiting to hear the jury’s verdict on first-degree felony charges of continuous sexual assault and two counts of aggravated sexual assault of a child.
      For anyone who has tried even a misdemeanor DWI, let alone a serious felony, we know this is the most nerve-racking moment in the legal profession. In such a serious case, anxiety is high for the prosecutors, the victim, and certainly the defendant. Some prosecutors even have a ritual to curb the mental stress. I’ve seen prosecutors who watch the jury to see if they make eye contact, trying vainly to eke out any sense of the verdict to come. Others stare blankly ahead or at a tablet or a case file, while still others bounce a heel with anticipation as they hold their pens poised against the file, ready to write the first vertical line of the dreaded capital “N” of “not guilty.” They hold out hope that they can instead start with the rounded edge of a capital “G.”
    For defendants, this moment has to include a flash of their entire lives, the crime itself, fear of a guilty verdict, and glimmers of hope for a not-guilty one. When the level of the charges is so high, again, these feelings must be magnified.      
    In Hernandez’s case, the jury returned from deliberations with its verdict. The defendant stood as the judge read it aloud:
Court (reading): ‘We the jury, find the defendant, Hector Vargas Hernandez, not guilty of the offense of continuous sexual assault of a young child.”
For a moment, a brief moment, I’m sure the prosecutors’ stomachs turned and the defendant’s hopes raised. But then there was an interruption from the jury box.

Foreperson: Excuse me. I think they—they double-checked if I wrote in the right area. I need to redo this, ma’am.
Defense lawyer: Your Honor—
Court: You made a mistake?
Foreperson: Yes, ma’am. I made a mistake.
Bailiff: All rise for the jury.
Court: So you’re saying you signed on the wrong form?
Foreperson: Exactly.

    At this point the jury retired to further deliberate and changed the verdict from “not guilty” to “guilty.” You can almost hear the defense lawyer’s inner child screaming, “Hey! No take-backs!”
    Maybe it is from watching too much television drama or the understandable result of the pomp and tradition of courtrooms, but when the judge reads the verdict out loud in court, it seems pretty official. Well, it isn’t. Just like during awards shows, the true result was known to those in charge, namely the jurors, and when it was improperly conveyed, the remedy was simple: Correct the verdict. These jurors actually used Wite Out on the verdict form, and the judge then polled them as to the final verdict, noting that there had been a mere error in filling out the verdict form.

The law
When I saw that this mistake had happened, I could barely believe it. But alas, this isn’t even the first time. In Reese v. State, the trial court had to send the jury back twice for further deliberations due to confusion over the verdict forms. The defendant in Reese was charged with sexual assault and compelling prostitution. The jury charge listed regular prostitution as a lesser-included offense jurors could consider instead of compelling prostitution. When the verdict came back the first time, the trial court noticed the jury had found the defendant guilty of sexual assault but neglected to return any verdict in the compelling prostitution case. The trial court told the jury, “You forgot to sign a verdict on one and all the jury needs to go back in there a minute.”
    The jury again returned from deliberation having found the defendant “guilty” of the compelling prostitution charge but “not guilty” of the lesser-included charge of regular prostitution. The judge had to send them back again because such a verdict created a conflict from a logical perspective: How could a defendant be not guilty of a crime that is subsumed in the greater crime of which he was found guilty? Jurors should not have considered the lesser-included charge because they had found Reese guilty of compelling prostitution. Finally, they struck through the not-guilty verdict on the lesser charge and the defendant was convicted on both higher charges.
    The code even contemplates this conundrum. Texas Code of Criminal Procedure Art. 37.04 reads, “The verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom …” The very next section, Art. 37.05, is about polling the jury. Polling asks each juror separately if the verdict is hers. The remedy proscribed is that “the jury shall retire again to consider its verdict,” so the judge in the Reese case made no substantial error.

Other quirks
Another interesting quirk is that the judge has discretion on whether the verdict is unanimous. In Gutierrez v. State, a juror testified at some point during deliberations that he wanted to change his vote on one charge to “not guilty.” He testified that the foreman, who was a legal secretary, told him that he could not change his vote in that cause because she had already signed the verdict form and because she said the guilty verdict was final. The trial court was free to believe other juror testimony that there was no mistake and then determine that the verdict was unanimous.
    If a juror dies in the middle of trial and there is no alternate, “the remainder of the jury shall have the power to render the verdict.” This seems to imply that if more than one juror dies, perhaps 10 or nine could continue—but in such a case it isn’t good enough that the foreman alone signs the verdict: “It shall be signed by every member of the jury. …”
    If jurors didn’t die but merely became sick during deliberations, the jury can be disbanded with agreement from the State and defense or allow 11 jurors to render the verdict and assess punishment, also contingent upon agreement from the State and defense.
    Perhaps the most common-sense rule, which was actually codified, is that the sheriff “shall provide a suitable room for the deliberation of the jury. … No intoxicating liquor shall be furnished them.” So according to statute, Jack Daniels is out, but perhaps a few Coors Lights could be considered to be outside the definition of “liquor”?


1  Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979; Rodgers v. State, 442 S.W.3d 547 (Tex. App.—Dallas 2014, pet. ref’d).

2  Reese v. State, 773 S.W.2d 314, 316 (Tex. Crim. App. 1989).

3  Stanton v. State, 747 S.W.2d 914 (Tex. App.—Dallas 1988, pet. ref’d); Gutierrez v. State, 851 S.W.2d 396 (Tex. App.—Eastland 1993, pet. ref’d).

4  Gutierrez at 397.

5  Tex. Code Crim. Proc. Art. 36.29(a).

6 Id.

7  Tex. Code Crim. Proc. Art. 36.29(c).

8  Tex. Code Crim. Proc. Art. 36.21.