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1. “Has the court of appeals misapplied Blueford v. Arkansas by holding that two jury notes indicating the jury deadlocked on a lesser-included offense amount to an informal verdict of acquittal on the charged offense?”
2. “Do mere jury notes regarding a deadlock on a lesser-charge contain sufficient indicia to show the jury manifestly intended an informal verdict of acquittal?”
3. “Did Blueford v. Arkansas overrule this Court’s precedent that a jury’s report of its progress towards a verdict does not amount to an informal verdict of acquittal?”
The jury charge authorized convictions for first- or second-degree felony burglary of a habitation. The jury reported that it was deadlocked—12 not guilty on first-degree burglary, and 5/7 guilty on the lesser. The jury was instructed to deliberate further. The next day, the jury remained deadlocked. This time, it reported the “overall” vote as 8 not guilty and 4 guilty without specifying the offense. The trial court declared a mistrial. Traylor was tried again and convicted of first-degree burglary.
The court of appeals held that the conviction violated double jeopardy because the first deadlock note showed that the jury rendered an informal acquittal on the first-degree offense. It therefore reformed the judgment to reflect a second-degree conviction.
The State contends that the court of appeals erred to hold that Blueford v. Arkansas, 566 U.S. 599 (2012), overruled State ex rel. Hawthorn v. Giblin, 589 S.W.2d 431 (Tex. Crim. App. 1979). Hawthorn held that the jury’s written communications about its progress is not a verdict. It reasoned that guilt is not finally decided until there is a unanimous verdict on both offenses. Likewise, Blueford held that the jury’s note stating it was deadlocked on the lesser after deciding against the greater lacked formality and thus cannot be deemed an acquittal. The Court observed that the jury could have reconsidered its decision when continuing to deliberate. However, it noted that there may be a circumstance in which a note could reflect a final decision on a portion of the case. The State asserts that the court of appeals erred to rely on that statement; it is dicta, and the Court offered no guidance on applicability. The State argues that there is no final determination here because the second note did not show that the jury remained unanimous on its consideration of first-degree burglary. Further, Tex. Code Crim. Proc. art. 37.10(a) requires that the jury be given an opportunity to reduce an informal verdict to writing before a court can conclude that it documents an actual acquittal. In this case, the jury would not have known that its notes would be considered an informal verdict.