Joseph Anthony Smith v. State, 612 S.W.3d 711

Around 5:00 a.m. Smith accosted a man with a gun during what the complainant believed was a robbery; neighbors subdued Smith and police recovered the gun.
Smith was charged with aggravated assault with a deadly weapon, convicted by a jury, and sentenced to life imprisonment after the punishment phase.
At punishment the State introduced evidence of extraneous bad acts (including an alleged capital murder) and evidence Smith used and was intoxicated by Xanax; Smith offered expert testimony that Xanax use could mitigate blameworthiness.
At the State’s request the trial court gave a punishment-phase jury instruction that tracked Penal Code § 8.04(a) (“Voluntary intoxication does not constitute a defense…”), without limiting it to extraneous-offense evidence; Smith objected that the instruction improperly negated mitigation.
The Court of Criminal Appeals held that an § 8.04(a) instruction in the punishment phase is permissible only if expressly limited to preventing jurors from treating otherwise-unlawful extraneous conduct as lawful; a generic § 8.04(a)-style instruction is error and remanded to decide preservation and harm.
On remand the Fourteenth Court of Appeals held Smith preserved the objection, found the instruction was calculated to injure Smith’s rights (caused “some harm”), affirmed the conviction, reversed punishment, and remanded for a new punishment hearing.

Issue	State's Argument	Smith's Argument	Held
Whether a punishment-phase instruction that tracks Penal Code § 8.04(a) is proper	Instruction was appropriate to prevent jurors from excusing criminal conduct because Smith was intoxicated and to address Dr. Rustin’s testimony	Instruction was improper in punishment because it negated mitigation and took away Smith’s mitigation evidence	Court of Criminal Appeals: § 8.04(a) may be used only if expressly limited to extraneous-conduct use; a generic § 8.04(a) instruction is error
Whether Smith preserved charge error by objection at trial	State argued objection was not specific enough to the form of error later identified	Smith contended he timely objected that the instruction was inappropriate in punishment and would negate mitigation	Court of Appeals: Smith’s objection was sufficiently specific; error preserved
Whether the preserved error caused reversible harm	State previously argued “some harm” standard applied; disputed preservation could shift standard	Smith argued instruction actually negated his sole mitigation theory (Xanax addiction) and thus caused actual harm	Court of Appeals: Because error was preserved, “some harm” standard applies; the instruction was calculated to injure Smith’s rights and caused some harm; reverse punishment and remand

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for jury-charge harm review)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (framework for charge-error analysis and preservation)
Smith v. State, 577 S.W.3d 548 (Tex. Crim. App. 2019) (holding generic § 8.04(a) instruction in punishment is error unless limited to extraneous-conduct use)
Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) (discussion of admissibility of extraneous conduct in punishment phase)
Jordan v. State, 593 S.W.3d 340 (Tex. Crim. App. 2020) (clarifying “some harm” means actual harm when error is preserved)
Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (mitigating evidence and harm analysis)
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (sentencing must be within statutory range)