Comment

The Committee believed having short-form punishment ranges in parentheses next to the blanks that jurors fill in on the verdict form would be a helpful guide and could minimize the chance that jurors will return a verdict outside the punishment range. More counties appear to be adopting this practice in their jury charges.

In drafting the short-form, the Committee had several concerns in mind. First, it took care not to permit a zero fine and zero confinement verdict, which would constitute an illegal sentence. Mizell v. State, 70 S.W.3d 156, 163 (Tex. App.—San Antonio 2001), aff’d, 119 S.W.3d 804 (Tex. Crim. App. 2003). For felonies and some enhanced misdemeanors, the punishment ranges have a stated minimum confinement term, so this is no real danger. A short-form such as “We assess… a fine of $_____ ($10,000 or less)” without spelling out a minimum threshold is perfectly adequate. Even if the jury puts $0 in the blank for the fine, jurors should still return a confinement verdict because they will be prompted for a stated minimum, e.g. “(2–20) years” for confinement. For class A and B misdemeanors, however, where there is no stated minimum fine or confinement amount, the short-form would need to tell jurors that where they choose a no-confinement option, some fine amount is required, and where they choose a no-fine option, some confinement is required. Jurors would similarly need to be prompted that some fine amount is required for offenses that require a fine like the special punishment ranges for top-end controlled substance offenses. see Blue v. State, 591 S.W.3d 255, 259 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Tex. Health & Safety Code §§ 481.112(e), (f); 481.1121(b)(4); 481.1123(d), (e), (f); 481.113(e); 481.114(e); 481.115(f); 481.1151(b)(5); 481.116(e); 481.1161(b)(6); 481.117(e); 481.118(e); 481.120(b)(6); 481.121(b)(6).

In spelling out that some minimum is required, another concern arises. The short-form cannot assume a higher threshold than necessary. For instance, a class A misdemeanor punishment range could not be shortened to “($1–$4,000)” because it implies that a fine of $.01 to $.99 is foreclosed. See, e.g., Barrera v. State, 246 S.W.2d 480, 481 (Tex. Crim. App. 1952) (finding “we . . . assess [the defendant’s] punishment at $___ and ___ months in the County jail” to be an erroneous verdict form since it wrongly implied the jury could not assess a term of mere days). Tracking the statutory language—e.g., “(a term of not more than 99 years or less than 5 years)” and “(an amount not to exceed $10,000)”—could solve both problems but perhaps falls short of the aim of being a quick reminder. Also, it must be kept in mind that the short-form will be read with the longer instruction in the body of the jury charge, so jurors can use common sense to interpret “(5–99) years” consistently with the longer instruction.

An argument could be made that a short-form like “(5–99) years” suggests that jurors must or should return a verdict in whole numbers only. But a majority of the Committee did not believe this form would prevent either advocates arguing for or jurors assessing non-integer terms like seven and a half years, for instance, which complies with a requirement of being “5–99 years.” In practice, juries still find ways to convey unusual yet legal sentences regardless of the form they are provided. See, e.g., Barry v. State, 700 S.W.2d 271, 273 (Tex. App.—Corpus Christi–Edinburg 1985, pet. ref’d) (holding that only reasonable interpretation of jury’s “10 + 1 DAY years” verdict was for confinement for ten years and one day since neither eleven days, ten weeks and one day, nor ten months and one day were within the range of punishment).