*1 prescribe penalties that are construed “to
proportionate to the of offenses seriousness permit recognition
and that differences possibilities among individual rehabilitation 1.02(3). I offenders.” Penal Code would judgment affirm the below. BARRERA, Appellant, Omar The STATE Texas. No. 1069-97. Texas, Appeals Court of Criminal En Banc. 7,Oct. Gonzalez, Brownsville, for appel-
Rene B. lant. Olson, County Atty., A. Asst.
John Paul, Brownsville, Atty., Matthew Austin, for State. PETITION FOR STATE’S
OPINION ON REVIEW DISCRETIONARY KELLER, Judge, opinion delivered McCORMICK, Presiding in which the Court PRICE, MANSFIELD, Judge, and WOMACK, Judges, HOLLAND and County grand returned A Cameron appellant, charging Omar single indictment Barrera, aggra- attempted murder with *2 416 review, shooting petition discretionary
vated assault for the of Oscar Za- the State’s Appellant guilty appeals, pleaded rate. not before a this court reversed the court of hold- (or unobjected-to jury charges. jury appel- ing to both The found that the omission of an guilty attempted unrequested) lant murder and the trial defensive instruction is not “er- years pris- court sentenced him to fifteen in Id. at 62. ror” under Almanza. trial, on. After a motion for new the trial presents case a different issue This appellant’s court reduced sentence to ten Posey, from that in however. Rather than claimed, years. appeal, appellant On inter omitting altogether, an instruction the trial alia, failing the trial in to that court erred apply in an court this case failed to abstract apply the law of self-defense to the facts of That instruction to the facts of the case. is failing jury in the the case and to instruct say, request, a the trial court to even without that a on the issue of reasonable doubt self- charge in included the law of self-defense the required acquittal. defense See Tex. Penal duty jury. A trial court has no to sua to the 2.03(d) (Vernon 1994). The Ann. Code sponte charge jury unrequested on defen the agreed appeals court of that the trial court Po sive issues raised evidence. See erred, analyzed and then that error under However, sey, having 966 S.W.2d at the federal harmless error rule because “we charge jury on undertaken on its own to the apply impli- ... if do not Almanza the error issue, signaled trial in this case this the court rights flowing from the cates United States applicable was “the law to that self-defense State, Barrera v. 951 Constitution.” S.W.2d Therefore, any charge the case.” flaw 153, (Tex.App.— Corpus 157 Christi amounts to an error on self-defense Finding the error harmful under this stan- Posey. charge, reasoning even under dard, appeals appel- the court of reversed appeals properly that The court of concluded lant’s and remanded for a new conviction apply the law of self-defense to the failure to trial. jury the case and to instruct the the facts of review, petitioned The State this Court for acquit they if held a reasonable doubt on to taking appeals’ the court of hold- issue with was error. self-defense jury charge ing that the omission was asks us to fundamental error. State II. proper consider Almanza is the whether error, Having found the above-mentioned granted for review. review to standard We erroneously concluded appeals court determine the standard for review and it was a federal constitutional error that
when, objection, jury a in the absence of an analysis appropriate to applied the harm charge the definition of self-defense includes conclusion, reaching errors. In their such appli- contain self-defense in the but fails to pre- appeals cited to a series the court paragraph. cation Doyle In v. charge error cases. Almanza
State, (Tex.Crim.App.1980), 631 732 S.W.2d caselaw, this I. federal support without from charge to that the failure Court held request to either appellant Because failed of a case violated apply the law to the facts object or to the a self-defense instruction regards: in two the federal constitution implicates given, this case our instruction First, very basis of the ‘goes it to Posey recent decision in 966 S.W.2d impartial ‘the fair Posey cases’ and denies (Tex.Crim.App.1998). claimed 57 (defendants) entitled un- jury in trial to which omitting the trial court erred process provision! ] of the fact, the ... due though he der on mistake of even struction United object Amendment requested charge nor Fourteenth had neither Second, the failure ... court of States Constitution ed to its omission. The facts the law to the charge of the the case after deter agreed and remanded ...,’ by jury to trial right egregiously ‘impairs Posey had been mining that by the Sixth guaranteed [is] in Al which set forth harmed under the standard (Tex.Crim. to the United Amendments Fourteenth 157 686 S.W.2d manza Constitution.... at 59. On States Posey, 966 S.W.2d App.1984). See
417
Clark,
petitions
narrow
ing
have announced
(citing Ex
597
habeas
parte
Id.
736
S.W.2d
at
(citations
charge
that offends
guidelines
(Tex.Crim.App.1980))
the federal constitution:
omitted).
reviewing jury charge
for consti-
[W]hen
However,
have
our recent decisions
infirmity, we must consider
tutional
impor
questioned
understanding of the
*3
“in
charge not
challenged portion of the
jury charge.
procedurally perfect
tance of a
isolation,”
“in the con-
but rather
artificial
State,
line of
In
v.
overruled the
Malik
we
v.
charge.” Cupp
of
overall
text
the
jury
that
the
Texas cases that had held
146-47,
141,
94 S.Ct.
U.S.
Naughten, 414
absolutely
appellate
an
charge
controls
(1973). A
396, 400,
consti-
measure
sufficient evidence was
1,
Nebraska, 511 U.S.
v.
standard.” Victor
thetically
jury charge”:
correct
1239, 1243,
6,
L.Ed.2d 583
114
127
S.Ct.
charge
Such a
would be one that accurate-
(1994).
law,
ly
the
is
sets out
authorized
(2nd
Hoke,
33,
45
34
Cir.
v.
F.3d
Justice
indictment,
unnecessarily increase
does not
an
apply
to
A trial court’s failure
proof
of
or unnecessari-
the State’s burden
jury instruction
correct defensive
otherwise
ly
liability,
the
of
restrict
State’s theories
a
Ac
give
to such likelihood.
does not
rise
adequately
particular of-
and
describes the
impli
in this
did not
cordingly, the error
case
tried.
fense for which the defendant was
cate the federal constitution.
pointed
Id.
240.
to authorities which
at
We
III.
importance
of
of
signaled
had
the decline
the
the
con
Notwithstanding
absence of
paragraph
charge, as
application
of a
case,
in
the trial court
stitutional error
well;
acknowledged
re
example,
we
our
charge
jury.
See
did err in its
to
Tex.
that
may
cent observation that “it
well be
1994)
2.03(d) (Vernon
Penal
Ann.
Code
anachronism,
application
paragraphs
an
(“If
a
is
the existence of defense
the issue of
jurors
perform just
and
well
that
could
as
jury,
charge
the court shall
submitted to the
Id.
v.
(quoting
without them.”
at 238
Plata
requires
doubt on the issue
that a reasonable
300,
(Tex.Crim.App.
304
926 S.W.2d
acquitted”).
re
The
that the defendant be
1996)).
by Texas
view such errors is controlled
of
Moreover,
pointed
in Malik that
we
out
article 36.19
Criminal Procedure
Code of
found no real
doctrine
Benson/Boozer
(“Review
Charge
Appeal”) and our
on
Malik,
in
953
support
federal caselaw.
157
in Almanza v.
686 S.W.2d
decision
The
us
at
same caselaw that led
S.W.2d
Almanza, an
Under
(Tex.Crim.App.1984).
supports
in
con-
to our conclusion Malik
appeal
an
appellant
complains on
who
failure to
the law
clusion
unobjected-to
charge
in
“will obtain
to
case
its
does not amount
a federal
egregious
to
facts
only if the error is so
a reversal
error,
merely
techni-
‘has not had
but is
“a
harm that he
constitutional
and created such
‘egregious
impartial
fair
trial’— short
state-law rule.” Brown
and
[a]
cal violation of
above,
(5th
Id. at 171. As discussed
Collins,
Cir.),
harm.’”
175, 182
rehear-
937 F.2d
requested a self-defense
appellant neither
(1991).
denied,
ing
ty then returns to its
position
referee
argument
declares their
a winner. Such re-
OVERSTREET, J., joins.
oriented, judicial
sult
truly
activism is
unfor-
givable.
MEYERS, Judge, dissenting.
ago,
Just three
majority
months
the same
grounds
The State’s
for review
briefed,”
dismissed
and its
“inadequately
as
sixty-
are,
arguments
points
respect,
with all
due
indeci-
brought by
a defendant
four
— pherable
petition
condemned
from the State’s
Mosley
to death.
or brief.1
S.W.2d-,
Despite the lack of
(Tex.Cr.App.
improvidently granted. J., joins.
OVERSTREET, HOYOS, Appellant, Humberto Almazo The STATE Texas.
No. 0050-98 *5 Texas, Appeals Court of Criminal En Banc. Nov. Prince, Houston, appel- for
Judith Martin lant. Cameron, Atty., M. Asst. Dist. Hous-
Carol Paul, Austin, ton, Atty., Matthew State.
OPINION
KELLER, J., opinion of delivered the McCORMICK, P.J., and Court in which MANSFIELD, PRICE, MEYERS, JJ., WOMACK, HOLLAND and case is whether present The issue Clause of the Sixth the Confrontation trial court violated when the Amendment was anticipated regarding the evidence excluded par- filing complainant against a third arising damages from ty of civil lawsuit for being prosecuted.1 Appellant con- the crime anticipated civil claim was tends bias as complainant’s relevant show complain- agree that a While we witness. granted. grounds improvidently appellant’s review as other two 1. We dismiss