Hisey v. State

In neither the jury instructions nor the verdict form was the jury instructed that it must unanimously agree upon any one of the three different criminal acts murder of mother, murder of father, or murder of both but not pursuant to a single scheme-to convict appellant of the lesser offense. The charge allowed for a non-unanimous jury verdict, in violation of the Texas Constitution's and Texas Code of Criminal Procedure's requirements of a unanimous jury verdict in felony cases.

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Click here for the full text of this decision FACTS:The appellant was charged with capital murder. A jury convicted appellant of the lesser offense of murder. HOLDING:The state’s petition is dismissed. The charge to the jury instructed that the appellant should be found guilty of the lesser offense of murder if jurors found that appellant was guilty of murdering both parents (but not pursuant to the same scheme or course of conduct), his mother only, or his father only. The verdict form provided the jury with three options: 1. guilty of capital murder; 2. guilty of murder; or 3. not guilty. In neither the jury instructions nor the verdict form was the jury instructed that it must unanimously agree upon any one of the three different criminal acts � murder of mother, murder of father, or murder of both but not pursuant to a single scheme-to convict appellant of the lesser offense. The First Court of Appeals held that “[a]s written, the charge allowed for a non-unanimous jury verdict, in violation of the Texas Constitution’s and Texas Code of Criminal Procedure’s requirements of a unanimous jury verdict in felony cases.” The court addressed this same issue in Ngo v. State, ___ S.W.3d __, 2005 Tex. Crim. App. LEXIS 457 (Tex. Crim. App., delivered March 16, 2005), and answered it adversely to the state’s position. OPINION:Per curiam.

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