This week we tried an agg. sex assault where the defendant raped and impregnated his 12 year old niece. The jury deliberated 30 min and found the defendant guilty. They spent 6 hours on punishment and came back with a sentence of 30 years TDC and probated the sentence (or at least thought they were). The judge said he could not accept that and sent them back to deliberate. We made a motion for a mistrial and it was denied. Not surprisingly, they came back about 15 min. later with 10 years probated.
Question: is this appealable? I know an illegal sentence is, but in the given circumstances, I'm uncertain.

The second situation is this: They started deliberating punishment about 4:00 on Tuesday and could not reach a verdict, so they came back the next day (yesterday), and deliberated a few more hours. Apparently when they broke Tuesday night the presiding juror went home and did his own research on the internet (looking up academic articles and culling through the registered sex offenders in Navarro County) and called a probation officer in another county. His independent research concluded that sex offenders who were placed on probation are less likely to re-offend than those sent to prison. He then reported his findings to the rest of the jurors. Obvious juror misconduct.
Question: can we go anywhere with this? As far as I can tell, only the defense can raise this issue, but is there something I'm missing?

We are attempting to exhaust every avenue to keep this guy off the streets. Any help on either of these issues would be greatly appreciated.

While the State may appeal from an illegal sentence, I assume the sentence that was finally assessed was not illegal. I'm sure the appeals courts would find the trial court's action to be appropriate. After all, it would be silly to say that the trial court was required to accept the illegal sentence just so we could turn around and undo it on appeal. The failure to grant a mistrial to the State, whether it was the legally correct ruling or not in your case, is unappealable, so I think you are stuck.

As for the jury misconduct, I don't think you can do anything about that either, unless you feel strongly enough about it to go after the juror. But as for keeping the defendant off the street, I'm afraid that ship has sailed, at least until the MTR.

Include EVERY condition of supervision that you can think of, especially curfew, not possessing alcohol, etc. Then bust him the very first time he violates any of them. Also, will your judge include any time as a condition of supervision? (I am assuming that your office or your community supervision office prepares the conditions of supervision and the court signs them). I give him less than 45 days until a violation.

As soon as the sentence came we asked for 180 days as a condition, and the judge ordered it. He admitted on the stand that at the time he committed the assault he was using meth "here and there", so I assume if we wait a little while and let him get comfortable, he'll fail a UA.

[This message was edited by Navarro County on 12-01-06 at .]

If your Def. appeals (and in my experience, child sex predators nearly always appeal, even when they get a sweet deal, because they NEVER believe they are guilty), you might be able to file a cross appeal. See CCP art. 44.01c. Last time I checked, the COA's were split on the issue of whether the State has to file a notice of appeal for a cross appeal; to preserve your rights, you should go ahead and file one. You have 15 days. See TRAP 26.2b.