Pham, Luan

Pham was charged with engaging in organized criminal activity. The jury charge at trial included the predicate offense (aggravated promotion of prostitution) as a lesser-included offense. Instead of a single verdict form that set out the three options (guilt on the greater, guilt on the lesser, or outright acquittal), there was a separate verdict form for the greater and the lesser, each with two options—guilty or not guilty. At some point in the trial, the jury signed the guilt option for both the greater and the lesser. The reporter’s record reflects that when the jury said it had a verdict, the judge announced in open court that the jury had found Pham “guilty of the lesser included offense of aggravated promotion of prostitution as alleged in the indictment.” The jury was polled, and all 12 affirmed that this was their verdict. No one mentioned the greater offense. Shortly after the punishment phase began, however, the trial court said, “I want to make sure that we have the right one that y’all picked originally. So, are you telling this Court that you’re saying that he’s found guilty on the engaging in organized criminal activity?” and they answered, “Yes.” This guilty verdict was then read aloud and the jury confirmed this was their verdict. The clerk’s record reflects that the signature on the lesser-included form has been struck through and a box has been drawn around both the guilty verdict and signature on the greater offense form.

On appeal, Pham argued that permitting the jury to change its verdict violated Double Jeopardy. The court of appeals agreed. It considered the statutes on jury polling (Tex. Code Crim. Proc. Art. 37.05) and informal verdicts (Art. 37.10) and held that neither permits a change to a verdict once the punishment phase has begun. It rejected the State’s argument that this was only correcting the verdict, given that, through polling, the jury confirmed its verdict was for the lesser. By statute, this verdict had to be entered upon the minutes and thus became final.

The State argues that neither the jury-polling nor informal-verdict statute prevent a jury from correcting a mistaken verdict in these circumstances. It also points to a conflict with another court of appeals on this issue. It observes that the informal-verdict statute has no temporal limitation. While the State agrees an informal verdict couldn’t be formalized after a jury had been discharged and separated, nothing about either statute (or their order in the Code) indicates that polling should impose a limit on correcting an informal verdict. The purpose of jury polling is merely to assure unanimity, not formalize the verdict. And besides, the jury was not polled as to its complete verdict at the guilt phase since the court inquired into only the second of the two verdict forms.