Hollander, Joe Shawn
2013 Tex. Crim. App. LEXIS 1808
| Tex. Crim. App. | 2013Background
- Appellant convicted of state-jail felony criminal mischief for tampering with an electric meter to divert power to a house (indictment alleged diversion by "installation of two wires").
- Statute creates a presumption that a person receiving the "economic benefit" of diverted service knowingly tampered; if submitted to the jury, the jury must be instructed that the predicate facts be proved beyond a reasonable doubt.
- At trial, evidence showed meter seals broken on March 4 and April 26, 2010; wires observed on April 26. No direct evidence when wires were installed between March 4 and April 26.
- Evidence about appellant's residence was contested: officer testimony suggested appellant listed and visited the Cisco house in late April, but defense witnesses said he ceased living there by late March and that power was off when he lived there earlier.
- The jury charge contained the statutory presumption language but omitted the required instruction that the facts giving rise to the presumption be proved beyond a reasonable doubt.
- The court of appeals held the omission was non-egregious because the great weight of evidence supported the predicate facts; Texas Court of Criminal Appeals granted review and reversed, ordering a new trial.
Issues
| Issue | Hollander's Argument | State's Argument | Held |
|---|---|---|---|
| Whether omission of instruction that predicate facts for statutory presumption must be proved beyond a reasonable doubt requires reversal when not objected to at trial | Charge omission deprived him of a fair trial because jurors were not told they had to find predicate facts beyond a reasonable doubt before using the presumption | Omission harmless (non-egregious) because the great weight of evidence showed the predicate facts would have been found beyond a reasonable doubt | Reversed: error was egregious; jury was never told it must find predicate facts beyond a reasonable doubt, the omission affected the very basis of the case and deprived appellant of a fair trial |
| Whether general burden-of-proof instruction cures the omission | General burden instruction insufficient to inform jurors about the specific confidence required for predicate facts | General instruction plus parties’ arguments were enough to inform jury | Held: general instruction did not cure the omission |
| Whether appellate reliance on legal sufficiency establishes lack of egregious harm | A sufficiency standard does not address likelihood a properly instructed jury would convict | State relied on apparent sufficiency and the verdict | Held: legal-sufficiency analysis alone is inadequate for Almanza egregious-harm inquiry; must assess likelihood a properly instructed jury would have found predicate facts beyond a reasonable doubt |
| Whether jury’s verdict and application paragraph show jury necessarily found tampering independently of the presumption | Jury might have relied on the presumption to find identity and means of tampering without finding predicate fact beyond reasonable doubt | Verdict and application paragraph demonstrate independent finding of tampering | Held: on these facts, jury likely relied on the flawed presumption for core findings; application paragraph does not cure the error |
Key Cases Cited
- Hollander v. State, 406 S.W.3d 567 (Tex. App.--Eastland 2012) (court of appeals decision reversing conviction on sufficiency grounds and addressing presumption instruction)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (established egregious-harm standard for unobjected-to jury-charge errors)
- Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008) (Almanza analysis clarifications)
- Francis v. Franklin, 471 U.S. 307 (U.S. 1985) (general burden instructions do not cure a constitutionally defective allocation of proof)
- Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. 2012) (legal sufficiency does not resolve Almanza harm analysis)
- Stuhler v. State, 218 S.W.3d 709 (Tex. Crim. App. 2007) (same point regarding sufficiency vs. harm analysis)