I currently have a jury in its 21st hour of deliberating. The question now arises that if the jury is hung on some counts, can it enter an acquittal on other counts that bar the state from retrial. I know it cannot enter guilty verdicts on some counts and hang on others. I also know that if everything is hung, everything can be retired, even the count the state dropped at the close of the state's case-in-chief.

If what you truly have are counts--separate offenses alleged within an indictment--why can't your jury return verdicts, guilty or not guilty on some counts but no verdicts on others?

I had a case recently where the jury only reached a verdict of guilty on some of the counts. Caudle v. State, 2006 WL 1030193 at *1 (Tex.App. - Fort Worth
April 20, 2006, pet. ref'd) (not published) ("A jury convicted him of the sexual-performance and unlawful-restraint counts. The trial court granted a mistrial on indecency with a child after the jury hung on that count.")

No one complained that it was error. Is there something in Chapters 36 or 37 of the CCP that would prohibit this?

Maybe I'm wrong on this. The best I've found so far is State ex. rel. Hawthorn v. Giblin 589 SW2d 431 that says a jury has not decided an issue until it declares an accussed guilty of one offense or not guilty of all. This is obviously in relation to lesser includeds. This would suggest there can be a split verdict.

Seems to me that when there is a unanimous vote as to any particular count, whether it be guilty or not guilty, they can return a valid decision on that count. Why would this not be true?

That case involves an indicted offense and a lesser included offense, not multiple counts. Moreover, there was no signed verdict acquitting on the charged offense, so the trial court could not enter a judgment on a verdict there, so the CCA granted the writ.

Remember, a count charges a separate offense, i.e. you could charge burglary and murder in a single indictment using counts, or you could charge aggravated sexual assault by penetrating mouth and aggravated sexual assault by penetrating vagina in a single indictment using counts. Each count gets a separate verdict form. A lesser included offense isn't really the same as a separate offense, but rather a different option for a single offense. Although, you can use a count to allege a lesser-included.

So, if you really have a multi-count indictment, and the jury has rendered not guilty on some counts and can't reach a verdict on other counts, the court should accept the verdicts reached and declare a mistrial as to the other counts. Article 37.07(c) codifies the requirement of separate verdicts for each count.

[This message was edited by JohnR on 06-28-07 at .]

Last month I had a jury reach a verdict on the charge of felony DWI, but hung up the special issue involving the vehicle as a deadly weapon. I looked all over Westlaw for a case on point to allow the judge to accept the verdict of guilt without a deadly weapon finding, but could not find anything on point or even helpful. The judge decided to declare a mistrial all together. Anyone had the misfortune to encounter this problem?

That is an interesting issue. Did you offer to agree to no finding?

I sure hope your jury comes back soon. We need your defense attorney to hurry up and get sworn in as 3rd District Judge!

I had a case several years ago where the jury hung up on one count and sent out a note saying they had come to a verdict on the other counts. After several more hours, they were still hung on the one, so the judge accepted that verdict and declared a hung jury on the undecided count. After the punishment hearing, we elected to drop the remaining count rather than retry.

I would imagine the appellate courts would contemplate this being the preferable course. After all, in most situation I would expect the retrial to occur with the State dropping the hung count (if they knew which one it was). Judicial economy would demand that the remaining counts not be retried just to come the same result that you had already achieved after a trial.

I sure did John, I tried everything I knew to do. I made an offer without the dw finding, but that was rejected by the defendant. I made a motion to withdraw the special issue and requested that the court accept the verdict, but that was denied. Obviously the mistrial worked best for the defense and the judge went along. His retrial is set for October, and I am likely going to proceed without the dw. Perhaps JB and his crew can give me some pointers considering their recent success. However, my facts included no accident and the vehicle only moved about 6-10 feet ...

Sorry Drew. We are now beginning are third full day of deliberations. By my count, we're over 30 hours by now. Then, we still have punishment as he did plead guilty to 1 count of aggravated assault.

You can take a verdict on only one count and continue deliberations on remaining counts. Check out Partida, 133 SW3d 738.

Thanks for everyone's help. I'm now comfortable that the court can accepts verdicts on some counts and declare a mistrial on others. That however, is still not the case in this trial. We are now in our 34th hour of deliberations. I now have the record for the shortest (4 minutes) and longest verdict in our county.