I'm working on a 1st Degree Burglary (sexual assault) appeal and have a verdict form issue that I wondered if anyone else had dealt with.

We had two paragraphs (1) enter w/ intent to commit sexual assault and (2) enter and did attempt or did commit sexual assault. Everything anticipated a general verdict.

The problem is that the preprinted verdict form reads: "we, the jury, find [Appellant] guilty of the offense of burglary of a habitation with the intent to commit a felony, to wit: sexual assault, as charged in the indictment."

Is that a general verdict or is it a badly worded finding of guilt under only the first paragraph? Does the hypothetically correct jury instruction rule apply to the verdict form?

My guy is claiming that (1) the verdict is uncertain and (2) we can't rely on the fact that he actually attempted sexual assault (which he claims was an afterthought to his real intent to steal).

Is Conrad, 230 S.W.2d 226 still good law? Cf. Espinoza, 955 S.W.2d 108. It would appear to me that it is now sufficient to show that entry occurred and that thereafter the other felony was attempted or committed. But, it does appear your verdict form did not give the jury the option of ruling on both theories (and may have limited it to expressing a finding of guilt on the intent at time of entry theory). I would have to say your verdict form was not truly completely responsive to the offense as charged in the indictment. Cf. Ballard, 438 S.W.2d 924. But, the defendant cannot benefit from this error because his conduct after entry can be properly construed by the jury as indicative of his intent at time of entry. Coleman, 832 S.W.2d at 413; Moore, 54 S.W.3d 539-40. That he may also have had an intent to steal does not negate his intent to assault. Ramirez, 815 S.W.2d 636. Your case seems to point out the importance of paying closer attention to the court's chosen form of verdict and making sure it submits all the issues the State wants. Maybe the CCA had a better idea when it said that the practice of the trial judge furnishing the jurors with forms of verdict was not to be commended. Hickox, 253 S.W. 823.

[This message was edited by Martin Peterson on 11-22-03 at .]