LUAN DUC PHAM v. THE STATE OF TEXAS (2026)

OPINION

Does the jury have the power to “change” or “correct” its verdict from a conviction on a lesser offense to a conviction on a greater offense after the jury has already confirmed its verdict on the lesser offense through polling, and after the punishment phase of the trial is already underway? Our answer is no.

BACKGROUND

Appellant was indicted for engaging in organized criminal activity, with a predicate offense of aggravated promotion of prostitution. At the charge conference, the prosecution requested a submission on the lesser-included predicate offense. Appellant opposed the submission, but the trial court overruled his objection.

The trial court attached two separate verdict forms to its charge. One form was for the greater offense, and it had two signature blanks: one for a finding of not guilty, and the other for a finding of guilty. The other form was for the lesser offense, and it also had two signature blanks: one for not guilty, and the other for guilty.

The charge instructed the jury to begin with the greater offense and to only consider the lesser offense if the jury had a reasonable doubt as to the greater offense or if the jury was unable to agree on a verdict for the greater offense. The charge also instructed that the foreperson should only sign one of the forms attached.

During deliberations, the jury returned two notes regarding the two submitted offenses. The first note asked, “If we agree on the lesser charge of aggravated promotion of prostitution, but get hung up on the greater charge (can't agree), what happens to the greater charge?” The second note asked, “What is the maxi[m]um and mini[m]um sentence for aggravated promotion of prostitution? What is the maxi[m]um and mini[m]um sentence for organized criminal activity?” The trial court answered both notes by instructing the jury to refer to the charge.

The jury eventually announced that it had reached a verdict. In open court, the trial court read aloud from one of the verdict forms: “We, the jury, unanimously find the defendant, Luan Duc Pham, guilty of the lesser included offense of aggravated promotion of prostitution as alleged in the indictment.” At the request of the defense, the trial court polled the jury. Each juror individually confirmed that this was his or her verdict.

The trial court continued, “So, this concludes the guilt/innocence portion of the first phase of trial. We're going to move on to the punishment phase of trial.”

Without a break in the proceedings, and while still in front of the jury, the prosecution arraigned appellant on an enhancement paragraph, which alleged that appellant had previously been convicted of murder. Appellant pleaded not true to that allegation. The trial court then ordered a recess to allow for the prosecution's latent print examiner to collect appellant's fingerprints, which were to be used for purposes of establishing the enhancement.

During the recess, the jury conveyed a message to the trial court, but the message itself was not recorded, and the trial court did not recite for purposes of the record how the message was ever brought to its attention. The trial court simply reopened the punishment hearing with the following question to the jury: “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?” The jury answered collectively in the affirmative. The trial court then read the verdict form for the greater offense, which had apparently been signed at some unspecified point: “We, the jury, unanimously find the defendant, Luan Duc Pham, guilty of the offense of engaging in organized criminal activity as alleged in the indictment.” The jurors were not polled individually, but the trial court asked them a second time if this was their verdict, and once again, they answered collectively in the affirmative.

The punishment phase of trial resumed, and after considering all of the evidence, the jury found the enhancement allegation to be true and assessed appellant's sentence at fifty years' imprisonment, plus a fine of $5,000. The judgment reflects that appellant was convicted of the greater offense, not the lesser offense.

ANALYSIS

Appellant now argues that his rights were violated under the Double Jeopardy Clause when the offense of conviction was changed from the lesser offense to the greater offense. Though he did not object on that basis in the trial court—in fact, he did not object at all—appellant may raise such a claim for the first time on appeal if the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record, and if enforcement of the usual rules of procedural default would serve no legitimate state interest. See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

Appellant contends that the guilty verdict on the lesser offense operated as an implicit acquittal of the greater offense. He also contends that the verdict on the lesser offense became final after the jury was polled, and that the jury had no power to withdraw its verdict and then convict him of the greater offense once the trial had shifted into the punishment phase.

If these arguments were meritorious, we would agree that appellant would be entitled to relief, notwithstanding his failure to object. See Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (recognizing a double jeopardy violation when there is a prosecution for the same offense after an acquittal); Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013) (stating that there is “no legitimate interest in maintaining a conviction when it is clear on the face of the record that the conviction was obtained in contravention of constitutional double-jeopardy protections”).

The prosecution responds that appellant's argument depends on the assumption or speculation that the foreperson had originally signed just a single verdict form. The prosecution proposes that the facts may have been very different and that there could have been a series of procedural missteps. For example, the foreperson may have first signed the verdict form for the lesser offense (which would be consistent with the note expressing that the jury had reached an agreement on that offense), but then after additional deliberations, the foreperson may have signed the other verdict form for the greater offense (even though the charge instructed the foreperson to only sign one verdict form). Continuing with this premise, the foreperson may have returned both verdict forms to the trial court because all of the papers in the charge were stapled together. Next, the trial court may have overlooked the verdict form for the greater offense when it read aloud the verdict form for the lesser offense. And finally, the jurors, when polled on the lesser offense, may not have expressed any disagreement with the verdict because they were not paying close attention, or perhaps because they simply did not comprehend what was happening.

Under this scenario of multiple “snafus,” to borrow the prosecution's own phrasing, if both verdict forms had been signed, then the verdict on the lesser offense was “informal,” and, according to the prosecution, the trial court was required to let the jury correct it. The prosecution also argues in the alternative that, even if the verdict on the lesser offense had been “formal” because only one verdict form had been signed, the jury was still empowered to correct the mistake on its own, even after the punishment phase of trial had begun.

Whatever sequence of events actually occurred, this situation is highly irregular, and adding to the irregularity is the state of our record, which in many respects is sorely underdeveloped. Let's start with the verdict forms, which appear in our record as follows:

Tabular or graphical material not displayable at this time.

Both forms were supposedly file stamped by the clerk at 12:34 p.m., but there appear to be unexplained alterations that came afterwards. The form on the right, which corresponds with the lesser charge, has strikethrough notations through both the foreperson's signature and the file stamp.

Would a trial court ever read aloud from a verdict form with the foreperson's signature crossed out? We think not. Similarly, would a clerk ever place a file stamp in a spot where there happened to be a preexisting “X”? That also strikes us as implausible. The only sensible explanation is that these strikethrough notations came later, along with what appear to be the foreperson's initials.

But when were these notations made? And how? Was the jury instructed to retire to the deliberation room and make its corrections? Or did the foreperson make these alterations in the courtroom? The record is completely silent.

The record also sheds no light on the other form corresponding to the greater offense. Was the foreperson's signature already there when the clerk placed the file stamp? What about the box around the signature, and the initials? Did the clerk “backdate” the file stamp to conform with the earlier announcement of the verdict? The trial court totally failed to explain on the record what had transpired.

The electronic docket sheet provides no clarity either. It recites that at 12:32 p.m. (two minutes before the file stamps), the court came to order and the jury announced that it had “reached a verdict of guilty,” without ever specifying for which offense. The docket sheet then says that at 12:35 p.m. (one minute after the file stamps), the jury was recessed for a break. Next, the docket sheet recites that the court returned to order at 1:32 p.m. (almost a full hour later), but critically, the docket sheet did not recite that there was ever a change in the jury's guilt-phase verdict once the punishment phase of trial had resumed, even though we know from the transcript that there was a change. Also omitted from that docket sheet is any explanation of when and how the jury conveyed to the trial court its message that the verdict should be changed.

During oral argument, we questioned whether this appeal should be abated for additional record development so that the trial judge might have an opportunity to clarify what had happened. The prosecution responded that there was no authority that would allow for such an abatement. Appellant argued that there was a jeopardy violation even if the prosecution's snafu scenario were credited as true. Based on what our record affirmatively shows, and for other reasons we explain next, we agree with appellant.

There is very limited authority for a verdict to be changed.

Changes are allowed, for example, if the trial court is advised during the reading of the verdict or during the polling of the jury that the verdict is incorrect. See, e.g., Jones v. State, 511 S.W.2d 514, 515–16 (Tex. Crim. App. 1974) (the trial court's reading of a not guilty verdict prompted a show of hands from the jury, which then led to further questioning that revealed that the verdict form was incorrectly signed); Hernandez v. State, 533 S.W.3d 472, 483 (Tex. App.—Corpus Christi 2017, pet. ref'd) (the foreperson interrupted the trial court's reading of the verdict to say that there was a mistake); Lane v. State, No. 2-08-309-CR, 2010 WL 1730845, at *3–4 (Tex. App.—Fort Worth Apr. 29, 2010, pet. ref'd) (mem. op., not designated for publication) (the bailiff interrupted the trial court's reading of the verdict after being informed of a mistake). This result is compelled by statute—if there is any expression of disagreement, the jury must retire for additional deliberations. See Tex. Code Crim. Proc. art. 37.04 (“When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.”); Tex. Code Crim. Proc. art. 37.05(a) (“The State and the defendant each have the right to have the jury polled, which is done by calling separately the name or identification number of each juror and asking the juror if the verdict is the juror's. If all jurors, when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any juror answers in the negative, the jury shall retire again to consider its verdict.”).

If there are no expressions of disagreement, changes may still be allowed, but only if the trial court discovers on its own that the verdict is defective. This is the situation of an “informal verdict.”

An informal verdict is “one that does not meet the legal requirements of being written or answered as authorized.” See Jennings v. State, 302 S.W.3d 306, 309 (Tex. Crim. App. 2010). This can occur, for example, when the verdict form is incomplete. See, e.g., Neal v. State, 689 S.W.2d 420, 427–28 (Tex. Crim. App. 1984) (the jury made a handwritten desire to recommend probation on the verdict form, but the jury neglected to answer a separate part of the form finding that the defendant had not previously been convicted of a felony); Muniz v. State, 573 S.W.2d 792, 793–94 (Tex. Crim. App. 1978) (the jury in a capital case neglected to answer one of the special punishment questions). An informal verdict may also arise when the jury's answers are contradictory or not permitted. See, e.g., Reese v. State, 773 S.W.2d 314, 316 (Tex. Crim. App. 1989) (the jury found that the defendant was guilty of compelling prostitution but not guilty of the lesser-included offense of simple prostitution); Stilwell v. State, 434 S.W.2d 861, 863 (Tex. Crim. App. 1968) (the jury neglected to impose a mandatory jail term); Belton v. State, 286 S.W.2d 432, 439 (Tex. Crim. App. 1956) (the jury assessed punishment at life, when it was required to select a term of years). When the verdict is informal, the trial court has a statutory duty under Article 37.10 to reduce the verdict to its proper form or to order the jury to continue its deliberations. See Tex. Code Crim. Proc. art. 37.10(a) (“If the verdict of the jury is informal, its attention shall be called to it, and with its consent the verdict may, under the direction of the court, be reduced to the proper form. If the jury refuses to have the verdict altered, it shall again retire to its room to deliberate, unless it manifestly appear that the verdict is intended as an acquittal; and in that case, the judgment shall be rendered accordingly, discharging the defendant.”).

Article 37.10 does not expressly impose any temporal limitations on the trial court's authority to order additional deliberations. But are there limits? If, for example, a trial court discovers an informal verdict after the jury has already been discharged, can the trial court still order the jury to be reassembled? The case law says “yes,” but only in the narrowest of situations.

In West v. State, 340 S.W.2d 813 (Tex. Crim. App. 1960), which was decided at a time when criminal trials in Texas were still unitary rather than bifurcated proceedings, the jury returned a verdict form that found the defendant guilty of DWI and assessed his punishment at three days in jail, plus a fine. Id. at 317. The jurors were polled, and after they all confirmed that this was their verdict, the trial court dismissed them. Id. at 318. But as the jurors began to leave, the trial court discovered a second verdict form, signed by the foreman, in which the jury had also found the defendant not guilty. Id. The trial court stopped the jury, called to its attention that both verdict forms had been signed, and ordered the jury to deliberate again and make any corrections or alterations that were necessary. Id. The jury retired to the deliberation room, then returned with the same verdict forms, but the finding of acquittal was scratched out. Id. at 814–15. The trial court accepted the corrected verdict, and the Court of Criminal Appeals affirmed. Id. at 815. The Court recognized the general rule that “the court is not authorized to recall the jury after they have been discharged and have separated and have them correct their verdict.” Id. But the Court made an exception: “A momentary separation of the jury in the presence of the court will not preclude the court from recalling them to correct their verdict where it appears that no one talked to the jurors about the case.” Id.

The Court of Criminal Appeals applied the same exception in Webber v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983). In that case, which arose out of a bifurcated proceeding, the jury returned a verdict assessing the defendant's punishment at four years' imprisonment and further recommending that he receive probation. Id. at 782. For reasons that were not explained at all, the trial court only read aloud the first part of this verdict form (the term of years, not the recommendation of probation). Id. The trial court then excused the jury, but the jury did not leave. Id. The trial court then read the remainder of the verdict about the recommendation of probation. Id. The trial court asked if that was the jury's verdict, and the foreman answered in the negative. Id. The trial court polled all of the jurors, and they each answered in the negative. Id. The trial court then ordered the jury to deliberate again, and it returned with a corrected form that did not recommend probation. Id. The trial court accepted that verdict, and the Court of Criminal Appeals affirmed under the exception that a trial court can recall the jury after being discharged if the jury has not left the trial court's presence nor spoken to anyone about the case. Id.

The same exception was discussed in Cook v. State, 361 S.W.3d 235 (Tex. App.—Fort Worth 2012), aff'd as modified, 390 S.W.3d 363 (Tex. Crim. App. 2013), but the outcome there was different. The jury returned a verdict assessing the defendant's punishment at six years' imprisonment and further recommending that the defendant receive probation. Id. at 238. The jurors were not polled, but the foreman affirmed that this was the unanimous verdict of the entire jury. Id. The trial court accepted the verdict and discharged the jury, which then fully left the courtroom. Id. A few minutes later, and after a recess, the trial court reassembled the jury, after apparently learning of a mistake. Id. The trial court conducted a partial poll, and upon hearing that there was a disagreement with the verdict, the trial court ordered the jury to reconvene in the deliberation room. Id. at 239. The jury then returned a second verdict, assessing the defendant's punishment at six years' imprisonment, but no probation, which the trial court accepted. Id. The court of appeals reversed. It held that, once the jury has been discharged, the verdict cannot be changed unless the jury has remained in the visual presence of the trial court as in West and Webber, which did not happen. Id. at 240. The court of appeals remanded for a whole new trial on punishment. Id. at 243. The Court of Criminal Appeals, which examined only the issues of preservation and remedy (not the merits), held that the proper remedy was to reinstate the original verdict, not remand for a new trial. 390 S.W.3d at 373.

West, Webber, and Cook all involved verdicts at the very end of the trial, after the jury had already been discharged. What about a verdict following the guilt phase of trial, before the jury has returned a verdict on punishment? Can a trial court “reconvene” a jury to reconsider or make corrections to a guilty verdict after the punishment hearing has commenced?

There is ample authority that an individual juror cannot change his or her vote from guilty to not guilty after previously affirming during a poll that this was his or her verdict. See Miranda-Canales v. State, 368 S.W.3d 870, 875–76 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (discussing some cases); see also Arnold v. State, 186 S.W.2d 995, 998 (Tex. Crim. App. 1945) (“A juror, having once agreed to a verdict of guilt, cannot come in thereafter and be allowed to impeach that verdict by saying that he did not believe in the guilt of the accused.”).

But there is one authority that allowed the entire jury, as a collective body, to change its guilty vote from a lesser offense to a greater offense during the course of the punishment hearing.

In Rodgers v. State, 442 S.W.3d 547 (Tex. App.—Dallas 2014, pet. ref'd), the defendant was indicted for continuous sexual abuse of a child. Id. at 548. That offense was submitted to the jury, along with the lesser-included offenses of aggravated sexual assault of a child and indecency with a child. Id. The jury returned a guilty verdict for indecency with a child. Id. at 549. The trial court read aloud the verdict, but the jury was not polled, nor did the jury express any disagreement with the trial court's reading. Id. at 550 n.2. There was a recess, followed next by a presentation of evidence, in which one witness testified about the applicable range of punishment. Id. at 549–50. That testimony prompted “obvious shock and disbelief” from some members of the jury. Id. at 550. At the end of the hearing, and apparently during another recess, the foreman informed the bailiff that he had incorrectly signed the wrong form, and that the jury had intended to convict the defendant of the greater offense of continuous sexual abuse of a child. Id. That message was conveyed to the trial court, which then brought the jury back in and read from the other verdict form (though there was never any explanation for how that form came to be signed). Id. The trial court polled the jury, and all of the jurors affirmed that this was their verdict. Id. The court of appeals held that there was no error because the trial court's action was consistent with West and Webber. Id. at 551–52. The court of appeals also cited to Article 37.07, § (3)(c), which says that “the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment.” See Tex. Code Crim. Proc. art. 37.07, § (3)(c).

Appellant argues that Rodgers is “deeply wrong.” He points out, correctly, that West and Webber involved verdicts at the very end of the trial, rather than verdicts that made a determination solely as to guilt, which was the issue in Rodgers. He also argues that the court of appeals misconstrued the “completeness” language in Article 37.07, § 3(c) by only considering one part of that statute in isolation. The full text provides as follows:

If the jury finds the defendant guilty and the matter of punishment is referred to the jury, the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment. In the event the jury shall fail to agree on the issue of punishment, a mistrial shall be declared only in the punishment phase of the trial, the jury shall be discharged, and no jeopardy shall attach. The court shall impanel another jury as soon as practicable to determine the issue of punishment.

Appellant acknowledges that a verdict is not “complete” under this statute until there is a decision on punishment. But, he contends, this incompleteness does not authorize a jury to make changes to its guilt-phase determination during the punishment phase of trial. Appellant argues instead that Article 37.07 merely delineates the effect of a mistrial—i.e., if a mistrial is declared during punishment, a newly impaneled jury may only decide the issue of punishment; and because of the Double Jeopardy Clause, the earlier determination of guilt remains final and cannot be revisited, which precludes the new jury from convicting the defendant on a greater offense or acquitting him altogether.

The prosecution does not dispute that a guilt-phase verdict becomes final in the event of a mistrial during punishment, but the prosecution credits a different reason for that finality: the discharge of the jury. The prosecution accordingly argues that if the jury has not been discharged, then the jury has the power to correct its own verdict at any time during the punishment hearing.

The prosecution does not cite to any statutory authority for this argument, and we do not believe that any exists. The legislature has already enacted several provisions that address changes to a verdict—e.g., Article 37.04, which concerns jury dissent; Article 37.05, which concerns jury polling; and Article 37.10, which concerns informal verdicts—and none of those provisions contemplates a change to a guilt-phase verdict after the punishment phase of trial has already begun.

Article 37.07 does not contemplate such changes either. That statute contains the very provisions that effectuate the legislature's chosen policy of bifurcating a criminal trial into a guilt phase and a punishment phase. If, during punishment, a jury could change its guilt-phase verdict from a conviction on a lesser offense to a conviction on a greater offense after hearing evidence of prior convictions and other bad acts, which is the type of evidence that is generally prohibited during the guilt phase of trial, then the jury would effectively circumvent this policy. See Hernandez v. State, 109 S.W.3d 491, 494 (Tex. Crim. App. 2003).

Likewise, we are not persuaded by Rodgers that the jury's guilt-phase verdict remains subject to change during the punishment phase of trial simply because Article 37.07 provides that the verdict is not yet “complete.” That lone word does not vest the jury with the unfettered power to knock down the separation between guilt and punishment. Had the legislature intended for the jury to wield such power, and to upset the apple cart of our bifurcated system, we would expect a much clearer expression of that intent. See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016) (“The legislature does not alter major areas of law in vague terms or no terms at all—it does not, one might say, hide elephants in mouseholes.”); Luna v. State, 70 S.W.3d 354, 362 (Tex. App.—Corpus Christi 2002, pet. ref'd) (“The Legislature clearly intended ‘determination of guilt’ and ‘assessment of punishment’ to be two separate proceedings. It made no provision for a reconsideration of the decision on guilt, after the punishment phase has begun. Adopting appellant's interpretation of article 37.07, section 3(c) would negate the system of bifurcation clearly intended by the Legislature, and would in effect transform the determination of guilt and punishment into a single proceeding.”).

The prosecution responds that there is a difference between a jury “changing” its guilt-phase verdict after learning of new information during the punishment phase of trial (which should not be allowed) and a jury simply “correcting” a mistake (which should be allowed). But there is a practical challenge with this stance on corrections—namely, how is anyone supposed to know whether the jury is actually making a correction instead of a change of heart?

During oral argument, the prosecution proposed that jurors could be questioned by the trial court “as to what exactly is the motivation of them wishing to change.” But that approach would seem to fly in the face of Rule 606(b) of the Texas Rules of Evidence, which prohibits an inquiry into “any juror's mental processes concerning the verdict.”

The prosecution also suggested that a trial court could ensure that the jury was merely correcting a mistake by asking, as the court below did, for “the right one that y'all picked originally.” But that question should not have been asked at all because, by that time, the jury had already confirmed its verdict through polling. See Bean v. State, 17 Tex. App. 60, 69 (1884) (“It was never intended, we think, in polling a jury, to permit the jurors to be interrogated further than to ask each of them the direct question, ‘Is that your verdict?’ If he answer in the affirmative, his answer is conclusive, and further inquiry is not permissible. If the rule were otherwise, each juror might be subjected to a searching examination with a view to showing that he had been mistaken in the verdict he had rendered and solemnly announced to be his verdict. Such a practice would be unreasonable and detrimental to the ends of justice.”).

Polling afforded the jury a full opportunity to correct any mistakes in its verdict. See Cook v. State, 390 S.W.3d 363, 373 (Tex. Crim. App. 2013) (“The cure for any untrue or unintended verdict is already in place—the right to have the jury polled before it is discharged.”); White v. State, 492 S.W.2d 281, 283 (Tex. Crim. App. 1973) (holding that, when there is a conflict in the verdict forms, the intent of the jury should be ascertained by utilizing the polling procedure set out in Article 37.05). And once the polling was ended, and all of the jurors were confirmed to be in agreement, their verdict became final. See Colyer v. State, 428 S.W.3d 117, 126 (Tex. Crim. App. 2014) (“A juror's vote, when polled in open court, is a ‘final sale’ item; it cannot be exchanged because that juror later has buyer's remorse.”); Batten v. State, 549 S.W.2d 718, 721 n.5 (Tex. Crim. App. 1977) (quoting Bean); Holifield v. State, 538 S.W.2d 123, 124–25 (Tex. Crim. App. 1976) (holding that jurors could not impeach their verdict after confirming it through polling).

Two important consequences attended the finality of the jury's verdict. First, because the jury found appellant guilty of the lesser offense, its verdict operated as an “implicit acquittal” of the greater offense. See Green v. United States, 355 U.S. 184, 190 (1957). And second, because the jury had been given a full opportunity to return a verdict on the greater offense but instead reached a verdict on the lesser offense, appellant's jeopardy on the greater charge had come to an end. See Price v. Georgia, 398 U.S. 323, 329 (1970); see also Colin v. Lampert, 233 F. Supp. 2d 1293, 1301 (D. Ore. 2002) (“After the court received the verdict on the lesser-included offense, however, further deliberation on the charged offense was prohibited by the Supreme Court's decisions in Green and Price even though the court had not yet entered a formal judgment of conviction on the lesser-included offense.”).

Because appellant's jeopardy on the greater offense had ended after the jury was polled on the lesser offense, we conclude that a jeopardy violation occurred when the trial court permitted the jury to change its verdict from the lesser offense to the greater offense after the punishment phase of trial had commenced. We likewise conclude that this jeopardy violation is clearly apparent on the face of the record, regardless of which version of the unrecorded facts happens to be true.

If, as appellant asserted, the foreman had originally signed just a single verdict form for the lesser offense, then that verdict was formal. And once the jury was polled and all of the jurors confirmed that this was their verdict, then the trial court had no discretion but to enter that verdict upon the minutes. See Tex. Code Crim. Proc. art. 37.05 (“If all jurors, when asked, answer in the affirmative, the verdict shall be entered upon the minutes.”); Tex. Code Crim. Proc. art. 37.12 (“On each verdict of acquittal or conviction, the proper judgment shall be entered immediately.”). The jury could not change its verdict without violating the Double Jeopardy Clause. See Price, 398 U.S. at 329. “The fat lady had sung.” Cook, 390 S.W.3d at 371.

If, as the prosecution asserted, the foreman had inadvertently signed both verdict forms, and everyone including the trial court was asleep at the wheel, then the jury returned an informal verdict, and the trial court would have been expected to require additional deliberations. See Tex. Code Crim. Proc. art. 37.10. But the trial court polled the jury, and polling is the cure for any untrue or unintended verdict. See Cook, 390 S.W.3d at 373. By confirming its verdict on the lesser offense, the jury made that verdict final, as well as its implicit acquittal of the greater offense. That acquittal, even if mistaken, also ended appellant's jeopardy on the greater offense. See Evans v. Michigan, 568 U.S. 313, 318 (2013) (“A mistaken acquittal is an acquittal nonetheless.”); Idrogo v. State, 589 S.W.2d 433, 434 (Tex. Crim. App. 1979) (holding that, where the foreman had altered the verdict form to convict the defendant of an unauthorized lesser offense, the trial court's acceptance of the informal verdict was reversible error, but the defendant could not be tried again on remand for the original charged offense because the jury had implicitly found him not guilty).

The prosecution counters that there should be no jeopardy violation here because appellant did not detrimentally rely on the jury's verdict convicting him of the lesser offense. That argument is not persuasive. “The Double Jeopardy Clause has never required prejudice beyond the very exposure to a second jeopardy.” Smith v. Massachusetts, 543 U.S. 462, 473 n.7 (2005). Moreover, the record actually shows detrimental reliance based on appellant's response to the enhancement allegation.

Aggravated promotion of prostitution, which was the lesser offense here, is a felony of the first degree. See Tex. Penal Code § 43.04(b). When that offense is the offense of conviction, the defendant faces a minimum term of five years' imprisonment, unless there is an enhancement for a prior felony. See Tex. Penal Code § 12.32(a). An enhancement was alleged in this case, and if it were found true—assuming that the punishment phase had actually proceeded with that lesser offense as the offense of conviction—then appellant's minimum sentence would have been increased from that five-year term to a fifteen-year term. See Tex. Penal Code § 12.42(c)(1).

Engaging in organized criminal activity, which was the greater offense below, is also a felony of the first degree, but it has its own special penalty provisions, and the minimum term of imprisonment is fifteen years' imprisonment. See Tex. Penal Code § 71.02(b)(3). That minimum term cannot be increased by an enhancement for a single prior felony. See Ex parte Brooks, No. WR-93,887-01, 2023 WL 1808403, at *1 (Tex. Crim. App. Feb. 8, 2023) (per curiam) (“If the most serious underlying offense is a first degree felony, the punishment range for the engaging in organized criminal activity is 15 to 99 years' or life imprisonment, pursuant to Section 71.02(b)(3). In this case, the indictment also alleged a single prior felony conviction for purposes of punishment enhancement. However, there is no specific statute authorizing further punishment enhancement for a first degree felony with a 15-year minimum sentence.”).

If the jury's initial verdict had been to find appellant guilty of the greater offense, instead of the lesser offense, then the enhancement would not have had any effect on the statutory range of punishment. And had the enhancement still been alleged, appellant would have had a strategic reason to plead true because that pleading would show some measure of accountability, which might mitigate the ultimate sentence.

But the jury initially returned a guilty verdict on the lesser charge, which meant that the enhancement could have a very real effect on the sentence. And appellant, who could not have reasonably anticipated any changes to the offense of conviction, pleaded not true to the enhancement allegation before the trial court permitted the verdict to be changed. And once the verdict was changed, the trial court did not start the punishment hearing anew by having appellant arraigned for a second time on the enhancement allegation. That is enough to demonstrate detrimental reliance.

Appellant contends that, if this court were to find a jeopardy violation, as we do now, then the proper remedy would be to reinstate the original conviction and remand for a new trial on punishment, since the jury below erroneously sentenced him for an offense for which there had been an implicit acquittal. Though the prosecution disputed that there was a jeopardy violation, it nonetheless agreed during oral argument that this remedy would be correct in the event that we were to conclude that appellant was entitled to any relief.

We grant appellant his requested relief.

CONCLUSION

The trial court's judgment is reversed and the case is remanded with instructions that the trial court reinstate the original conviction for aggravated promotion of prostitution and that appellant receive a new trial on punishment only.

Tracy Christopher Chief Justice