Gelinas, James Henry

of-fact defense.19 GELINAS, Henry Appellant

James of Texas. STATE

No. PD-1522-11. Appeals

Court of Criminal of Texas. 15,

May Strickland, 19. See probability 466 U.S. at reasonable S.Ct. that but for counsel’s 2052; errors, Jackson v. S.W.2d unprofessional pro- the result of the (to (Tex.Crim.App.1998) establish ineffective ceeding would been A different. reason- claim, assistance of counsel defendant must probability probability able is defined as a evidence, prove, preponderance sufficient to undermine confidence in the out- representation that "counsel's fell below an (citations proceedings.”) come of the omit- objective standard of reasonableness based ted). upon prevailing norms that there is a illuminating light Gelinas’s

lot and that the white, required by not as plate was license however, conceded, that Marquez law. insup ground stop proved for the former Transportation Code because portable signal require not drivers to when does result, As private lots. turning out of Geli- ground for the became the sole Fletcher, Atty., Asst. Douglas K. Dist. with Trans alleged non-compliance nas’s Paso, Appellant. El 547.822(f), section mandat portation Code Paso, Gonzalez, Lisa El C. Mario A. illuminating plates license ing lights Austin, McMinn, Attorney, State’s Trooper testified that Marquez be white.2 State. illuminating plate license was light white, he though difficulty had recall

OPINION light. color of the The State ing the actual Trooper Marquez’s from also offered video KEASLER, J., judgment announced the camera, testimony police though in-car an opinion, and delivered Court the video fails to suggests at trial KELLER, P.J., HERVEY, and which li the color of the conclusively establish ALCALA, JJ., joined. plate According Marquez, light. cense overrule Hutch v. The State asks us to signs Gelinas exhibited number the lower court relied upon State1 over and being pulled intoxication after finding egregious suffered that Gelinas field poorly the standardized performed harm an erroneous instruction. from observations, sobriety Based on his tests. review, we believe Hutch was flawed Upon that Gelinas Trooper Marquez concluded results, unjust here- produces and we was intoxicated. by disavow it. We find contested he arguing In addition to case was errone- instant intoxicated, at trial that the argued Gelinas ous, result. harm did not was, in illuminating plate his license light ap- Accordingly, we reverse fact, his support position, white. peals’ judgment. Trooper Marquez’s Gelinas referred light proof car camera video Background I. Additionally, offered was white. Gelinas A. Trial wife, testimony of his who stated had was white and car charged Gelinas was with the offense inspections. A passed a road numerous state driving following while intoxicated by Department plate of the license taken photograph side conducted At after the incident Safety Trooper Diego Marquez. Public Gelinas’s wife sometime trial, trial, though, at like as that he was also offered Trooper Marquez testified video, appears testi- he Geli with stopped Gelinas because believed mony photograph signal private parking nas out of a trial failed (1) (Tex.Crim. mounted emit a white that: illumi- 922 S.W.2d 166 Hutch (2) App.1996) (plurality opinion). plate; the rear license makes nates plate clearly legible at a distance of 50 547.322(f) ("A taillamp § Transp. 2. Tex. Code rear.”) feet from the lamp separate or a shall be constructed as to the color Marquez somewhat inconclusive relative de- stopping the plate light. fendant and his conclusions drawn as a thereof, result will not consider regarding Because the issue the color of such any evidence purpose whatsoev- contested, light was the trial judge er. pursuant an included to Texas Code Criminal- Procedure article clearly instruction was erroneous

38.23(a)3 which jury stated: that it stated opposite of what .exact You are instructed that under our law the provides. truth, law In if no evidence or by obtained derived an found that driving Gelinas was on public a officer or other as a person result of an road and comply failed to with the law unlawful detention shall be ad- requiring light, a white the stop against missible in evidence such ac- have been legal, illegal, and thus the An permitted cused. officer is to make jury could have properly considered the temporary a investigative detention of a testimony and conclusions of Trooper Mar- specific motorist if the has officer articu- quez. which, together lable facts taken facts, rational from those inferences lead Gelinas guilty was found of driving while him to a person conclude that detained intoxicated and was sentenced days to 180 is, been, actually or has soon will be confinement probated for fifteen months engaged activity. Now, in criminal and fined $1000. instruction,

bearing mind if you this find from the evidence that on the occa- Appeal B. Defendant, in question sion James asserted, On appeal, Gelinas among Gelinas, Henry driving his vehicle things, other he suffered egregious a public immediately on road preceding harm as a of the charge result error.4 and detention the officer and object Because Gelinas did to the erro you find from the evidence that his vehi- trial, neous instructions at the court comply cle failed to with the Texas of appeals conducted Almanza5 harm Transportation Provision, Code analysis to determine whether the error requires a white to illuminate the resulted in egregious harm.6 Al Under you vehicle’s license or plate have a rea- manza, thereof, by taking courts evaluate harm sonable doubt then such stop- (1) (2) into account the entire ping and, charge; be illegal accused would evidence, you be, if find the so to if state of the you including facts or con (3) thereof, issues; counsel; tested reasonable doubt (4) disregard will testimony of Trooper any other relevant information con 38.23(a) (“No event, disregard any Proc. art. evi- and in such shall Tex. 3. Code Crim. obtained.”) person dence obtained an officer or other such evidence so any provisions in violation of of the Constitu- Texas, 2420858, *3, or tion laws of the state or of the WL Gelinas v. Tex.App. (Tex.App.-El Constitution or law of the United *7 States of LEXIS Paso America, 15, 2011). June shall be admitted against any trial of accused on the crimi- (Tex. legal case. nal case where the evi- 686 S.W.2d 157 hereunder, Crim.App.1985) (op. reh’g) dence raises an issue shall believes, be instructed that if has reason- doubt, Gelinas, *3-4, able that the evidence was obtained 2011 WL Article, provisions Tex.App. violation of the of this then at *9-10. LEXIS 4524 evidence inadmissible.12 quently In its obtained as whole.7 in the record tained appeals contested, noted the trial analysis, the Because the issue was the instant the facts of between similarities instruc- included an article 38.23 judge plu in our v. State Hutch case those instruction, however, errone- tion.13 essentially opinion, which stands rality ously opposite the exact of what stated fails when defendant proposition that It instructed provided. law object to a misstatement driver of the car they found that the in a to a contested issue relevant wearing their seat- Hutch had not been fact paragraph, charge’s application belts, and should illegal, was properly explained jury arguments con- testimony and disregard officer’s error resulting the law cannot render scenario, fact, In in this clusions.14 appeals opted of harmless. The court legal stop would have been Hutch, offering reasoning our follow testimony have considered analysis an account of our little more than conclusions of the officer.15 egre conclusion of in Hutch and a blanket re harm.8 That court reversed gious Hutch, that, with re- In we concluded re Upon accordingly.9 manded the ease Almanza factor address- gard to first view, that Hutch lacks conclude the error was “un- ing the entire which court of value to persuasive degrees “was wrong” and 180 questionably attributed it. appeals been.”16 what it should have opposite weighed in favor of held this factor We Analysis II. harm finding egregious because the A. Hutch application paragraph occurred Hutch, similarly was a errone- there charge portion which author- —the 38.23(a) con- article ous also on appel- izes the act—and law.10 taining misstatement presumption late understood discovery Hutch’s was based on the arrest evi- and followed the absent allegedly drugs in a car contrary.17 dence and the over because driver pulled analysis by address- Hutch continued its Hutch, wearing seat- passenger, were not factor, calling for ing the second Almanza claimed that he and belts.11 Hutch consideration of the state the evidence. wearing seatbelts had been their driver subse- held that the issue was a contested illegal thus and all We Almanza, at 171. 14. Id. 7. Gelinas, *4, 2420858, 2011 Tex.

8. 2011 WL at at 170. 15. Id. Hutch, (citing 922 App. 4524 at *10 LEXIS 170). at S.W.2d State, (citing 172 881 16. at Hutch v. Id. 92, (Tex.App.-Houston [1st S.W.2d 94 & 96 Id., *5, Tex.App. WL 2420858 at 2011 9. 2011 1994)). Dist.] LEXIS 4524 *13-14. at Hutch, at 10. S.W.2d 169-70. Hutch, 922 (citing 172-73 Rose 922 S.W.2d State, 529, (Tex.Crim.App. 752 554 v. S.W.2d Id. at 169. 1987) reh’g); 675 (op. on Cobatrubio v. 1983); (Tex.Crim.App. Gard S.W.2d Id. (Tex.Crim. S.W.2d ner 1987)). App. 13.Id. Almanza, we, one, no too, and noted that instruction would question wisdom of have been required otherwise.18 reversing upon single “finding defect in ‘application the exalted paragraph’ ...

As for the third Almanza factor — argu- without consideration the charge as a originally ments of counsel—we concluded whole, considering whether the jury was counsel, though arguments cor- way in any misled.”22 rect, resulting were insufficient to cure the conclusion, in part, error.19 based this We Further, the plurality overlooked the on the has long fact that it been said that possibility that it very clarity is the “jury are not evidence and the may mitigated error that any result- jury may not consider them as such” ing harm. The erroneous instruction in the Supreme Court’s “ar- holding that application paragraph in Hutch immediate- guments of counsel cannot substitute for ly followed corréct statement of the law instructions the court” in addition in the abstract of the charge. The language from of our prior opin- one own juxtaposition of the two almost certainly not,a ions stating “jury argument the jury alerted to the fact that the incon- substitute proper jury charge.”20 for a sistency was the result of a typographical addition, we case suggesting cited law Though error. we greater discuss this in argument controlling alone is never of Hutch’s conclusion analysis detail in our in an analysis under Almanza.21 the third Almanza regarding factor, it is our Hutch Finally, opinion made no here jury arguments relevant that the in mention of other relevant consider- Hutch involved correct recitations of the ations fit might within the broad law, which jurors informed of the correct “catch-all” category that constitutes likely thus and indicated to the jury fourth Almanza factor. charge contained a simple mis- unjust Because it is flawed and produces take. Common sense also indicate results, Hutch’s apply we decline to rea- to most police officer cannot soning jury charge to a error like that legally stop investigate and a law-abiding Al- First, in Hutch’s presented this case. citizen without cause! manza analysis ap- did not attribute Similarly, agree while we that the issue propriate weight to the in various factors one, in question was a contested believe of the facts. As for analysis its original our Almanza factor —the Al- first conclusion that second in manza factor general weighed in agree great egre- do not favor of with the —we weight gious on alone Hutch plurality placed overly harm this basis this factor, egre- simplistic. in favor of factor in weighing finding Resolving this such a harm, gious essentially manner simply because of the error’s means that a trial application judge request location in the an paragraph. grants article 38.23 Just as Presiding Judge Onion stated in happens instruction that to contain even error, concurring dissenting opinion and the slightest appellant an is already Hutch, 681, (citing 18. 922 S.W.2d 173. 21. Id. v. 753 S.W.2d Ruiz 1988)). (Tex.Crim.App. Id. at 174. Almanza, (Onion, J., 686 S.W.2d at 177 (citing Id. Taylor Kentucky, v. U.S. concurring dissenting). and 478, 488-89, 98 S.Ct. 56 L.Ed.2d 468 (1978); Arline v. 1986)). n. 8 (Tex.Crim.App. If such counsel. establishing focuses on way to quarter one harm, why not relevant to arguments were article In erroneous harm. case? cases, would this be the factor should 38.23 it under- weight less because afforded Second, importantly, perhaps and more required of a factor flexibility mines windfall the Hutch resulted in a opinion case-by-case on a basis applied test potential and creates similar Hutch to a article 38.23 instruction elevates factually for other defendants windfalls to a modified factor subject status special may A defendant similar circumstances. Thus, we inclined to limit the are test. charge is where a now remain silent egregious-harm weight of this factor incorrect, hoping acquittal, for an evaluation. then, guilty, finds him raise if a obtaining hope with the appeal issue on factor, the

As for third State, however, has no a new trial. argu- Hutch opinion’s conclusion right limited given such its opportunity correct, counsel, though were ments unfair, only is the appeal.25 Not result resulting cure the error relied sufficient to remain encourages it also defendants law, factually case upon distinguishable instruc- regard silent to errors State, Arline v. Kentucky Taylor to correct tions and rewards failure Taylor its In both support of conclusion.23 judicial Both charge errors. fairness Arline, significantly were facts doing with such a economy away favor There, in Hutch. than different those holding. any of give version trial courts refused result, As a requested

the instructions.24 Hutch does Choosing apply to decline entirely relevant law was absent the not egregious harm did not mean that reason, charges. we do case, the For ap- occur in Gelinas’s however. holdings Taylor in that not believe the specific is a one propriate inquiry fact Arline deeming arguments insuffi- case-by- performed on a which must be ap- instructions cient substitutes case basis. Hutch present like the in cases ply B. Gelinas’s Case arguments acting are not as substi-

where instructions, con- merely factor, for the tutes to Almanza’s first regard With the incor- a correct version of law entirety, stitute charge in clear addressing the its jury charge. in the In rectly reflected of application paragraph exists cases, deprived all the is not of such instruc- to the because the law, simply faced with an relevant but is the law. The location of tion misstated law, of that obviously erroneous recitation is not as application paragraph error in the arguments may prop- well serve to significant and correct as we once believed. presence to the correct- in the abstract alert er recitations law counsel, arguments belief of of such errors. Our and the ness below, along greater be in detail arguments of counsel can relevant discussed likely jurors, fact the with common sense of the supported by harm error. In factor of Almanza minimized impact of this entirety of the third 1930; 480-81, Hutch, Taylor, S.Ct. (citing Taylor 436 U.S. at at 174 S.W.2d 488-89, 478, Arline, Kentucky, 436 U.S. 98 S.Ct. at 353 n. 8. 721 S.W.2d (1978); Arline v. 56 L.Ed.2d 468 (Tex.Crim.App. 353 n. art. 44.01. 25. See Tex.Code Crim. Proc. 1986)). fact, language preceding the incorrect- Defense counsel also addressed the issue of legality stop. of ly jury charge worded of clear- closing argument, counsel referred ly that it in to the incor- “bearing states should read rect jury charge and read the instruction,” incorrect foregoing] referring mind [the portion in its entirety. Like the portion. to the informed abstract This however, proceeded he to correctly set out they apply given were the law regarding legality abstract, which constituted correct and even went so as to far tell the law. Ultimately, statement of the al- that if they white, found the light though weighs this factor in favor of a consider anything else that harm, finding egregious place we do after the occurred stop. great weight such it as Thus, appeals though to do. inclined there were some misstate- during ments of the law jury arguments, factor, regard With to the second it is parties both also argued correct law obvious that the here issue was a contested very clearly jury. Given that we one. The State does not this. As contest have determined jury arguments bear result, this, too, weighs favor significantly on an Almanza analysis, we However, harm. finding egregious believe third weighs factor significantly above, discussed context of an arti- in favor a finding of no harm. instruction, cle 38.28 this factor should be As for the fourth factor, assigned weight given pres- less accounts for other relevant informa- ence of an the first instance record, tion contained in the we note the means that the issue was a contested one. absence in the record of a note from the jury during expressing deliberations confu- Regarding of counsel— sion the contradictory as to language re- Almanza’s third parties factor —both men- garding the 38.23 sug- instruction. This law regarding tioned the legality gests the jury by that was not confused stop jury. in their to the the in typographical jury charge the portion the the closing first of State’s ar- or the during argu- misstatements the gument, prosecutor the the jury referred light ments of counsel. In of the obvious- to the portion jury charge incorrect errors, ness of those the common of sense it, and went so far to of part as read jurors, portion the the jury correct though not of it enough to constitute an the of and correct statements law incorrect statement of the as he law did in parties’ arguments, both we closing be- portion reach the regarding whether lieve it probable jury resolved the stop legal illegal. the was Neverthe- issue in accordance the with law. This less, the State on correctly went to ad- factor, too, weighs finding in favor of no issue, dress the explaining that the egregious harm. was so the legal long as on Gelinas’s plate was not white. In the final Ultimately, believe the we that portion of closing argument, the State’s third and fourth factors in favor weighing the prosecutor again correctly stated the of finding egregious outweigh no harm the regard stop’s legality, to the ex- first weighing and second factors in favor red, plaining that if the was that egregious of finding harm. Our conclusion would constitute a violation of Trans- the is supported the fact that the Gelinas Code, portation Trooper Marquez jury unlikely giv was to have been misled stopped sense, could have validly Gelinas. en the fact common the correct in my dissent point add the raised jury argu- correct would paragraph, abstract the jury part to likely application case: the error ments most alerted recognize jury was to defen- allowed them instructions error and the law properly apply mistake and application benefit. dant’s preceding sentence. correctly stated essentially told instructions2 Hutch re- harm that no We conclude (incorrectly and to Hutch’s bene- jury erroneous sulted fit) legally obtained evidence. disregard holding charge. limit our jury We to do if the not tell the what It did today facts of case and reiterate to the illegally But evidence was obtained.3 analysis is that the Almanza our assertion It portion of the did. instructions abstract which should be done specific a fact one obtained evi- illegally told case-by-case a basis. inadmissible, explained was dence police that a officer could some- III. Conclusion rationally was only activity if criminal one in Hutch flawed opinion We our find failure wear suspected, and set forth the results, here- unjust we produces crime suspected seatbelts as Al- conducting it. by disavow After stop.4 be the basis Consid- find analysis in instant manza whole, a ered as instructions essential- did 38.23 instruction the erroneous article disregard told the had to ly According- harm Gelinas. egregiously illegally was obtained or if evidence if it appeals’ judg- ly, we reverse only legally. way the was obtained “[T]he remand the case the court ment and have convicted disre- remaining appeals to address Gelinas’s [application] garding the erroneous of error. points acting in with the rest struction and accord argu- jury charge and the P.J., KELLER, concurring filed ments.” opinion. Similarly, application portion J., COCHRAN, concurring filed present case instructions in told opinion. benefit) jury (incorrectly appellant’s MEYERS, J., opinion. dissenting filed a disregard evidence if the deter- J., PRICE, dissenting filed opinion. legally. mined it was obtained instructions did application portion JOHNSON, J., dissenting filed a if jury tell what to do it was opinion. por- abstract illegally obtained. But the WOMACK, J., concurred. jury that tion the instructions told P.J., KELLER, concurring a filed was inadmissi- illegally obtained evidence opinion. ble, that explained jury police to the a only criminal officer someone could join opinion. cogent

I To its Court’s Hutch,1 rationally set reasoning activity suspected, I refutation of Hutch, J., (Keller, (Tex.Crim. 922 S.W.2d at 174-75 922 S.W.2d 166 Hutch dissenting). App.1996). (Court’s op.). id. 4. See at 169 (sec- 38.23(a) art. 2. See Tex Code Proc. Crim. paragraph). ond J., (Keller, dissenting). id. 174-75 5. See at Transportation forth a violation of the because not even the lawyers and trial suspected judge, crime that would be though they may Code as the attuned be to le- Hutch, stop. the basis of As galese, understood what the instructions application portion of the instructions es- said. sentially told that evidence judge The trial should “chunk” informa- if it was legally considered short, tion and it give in a obtained, portion and the abstract digestible pieces as shown in the Texas told the that the instructions evidence Criminal Jury Charges Pattern volumes illegally could not be if was considered published by the Texas State Bar.2 Al- obtained. never told the instructions though Jury Charges the Pattern do not should illegally that consider ob- yet special cover instructions under Article only tained evidence. The rational view of 38.23, general provide instructions a is that the jury, convicting situation guide along following lines: appellant, disregarded the erroneous appli- No evidence obtained an officer as cation the instructions. the result of an unlawful and deten- tion against is admissible the defendant.

OPINION An permitted officer is a tempo- make COCHRAN, J., concurring filed a rary a investigative detention of motor- opinion. ist if that officer has suspi- reasonable (1) it. did not Let’s face This read cion to believe that the motorist has instructions; (2) 38.23 Article did violated a traffic law. One such traffic instructions, did read the not under- requires vehicle to have a white said, they really stand what therefore illuminates the vehicle’s li- them; (3) ignored or did read instruc- cense plate. tions, they wrong, knew were you may Before consider whether the ignored option therefore them. The third supports guilt defendant’s all, likely; is the least after neither the driving while offense intoxicat- parties the trial knew judge nor ed, you must first determine whether were wrong instructions time that proven, beyond State has a reason- were written read. most like- doubt, able first, ly option simply proves (1) Trooper Diego Marquez reason- in, adage “garbage garbage the old out.” ably believed legalese. These instructions are 100% (2) defendant, Henry Geli- James They judges make no sense. Trial should nas, driving a vehicle did not be giving instructions like this. This is not have white that illumi- reviewing not a case which the plate. nated vehicle’s license apply presumption should the usual (1) (2) beyond If applied understood and find both doubt, charge in was will way you court’s the it written.1 reasonable then next Here, composed know that jury, we consider whether State’s evidence normal was to have people, unlikely proven under- has the elements of the offense jury charge driving stood the as it was written while intoxicated. State, 822,

1. See v. 2. See Mites 204 S.W.3d 828 Bar, Pattern Texas State Texas Criminal ("[I]n (Tex.Crim.App.2006) absence of evi- Charges, Jury (2009-2012). 1-4 vols. contrary, dence assume will instructions.”). its written followed 712 (1) (2) not there was no guilty not both and be- Gelinas because you

If do find doubt, support guilt his of driv- you then other evidence yond a reasonable will ing intoxicated. while not evidence that was ob- consider Diego Marquez by Trooper tained after necessary I not think that it is do case, stop. In this making unlawful v. State5 because that “disavow” Hutch you guilty” must find the defendant “not opinion and only plurality was therefore Trooper Marquez find that made binding is I think that precedent. not And stop. an unlawful the four out Hutch properly set factors, although “egregious This instruction makes clear error” reason- (and, Hutch, did) officer’s reasonable belief about viola- able minds could dis- everyone are agree precisely matters.3 It also forces on how to be tion that applied. agree Presiding Judge I with on the historical fact that estab- focus in Hutch that in both that And Keller’s dissent lishes the violation.4 its format also present jury charge case and the one “the judge make it to the trial obvious basis, wrong on acquittal authorized attorneys if the instruction were but not authorize on the did conviction wrong. is, jury charge basis.”6 That wrong case, primary this contested issue stated, in “If the was essence: defendant plate light was the color the license at the breaking law time officer Trooper Marquez whether was credible him, ... stopped then was ille- concerning its color. Both the defense Well, nonsense, gal.” of course that is prosecutor attorney and focused on that the jury it is nonsense that would have Regardless evidence that issue. to be I clearly agree understood such. instruction, parties nonsensical that, Judge Keasler counterintuitive abundantly made it clear that if the jury seem, may very obviousness Trooper Marquez did not believe about the certainly error makes it less harmful — color, he not plate license should less harmful than the converse instruction: Mr. stopped and detained Gelinas. And if breaking “If was not the defendant stopped he should not have and detained him, time officer stopped then Gelinas, Mr. must aside set all of ... legal.” was Marquez Trooper obtained as And, I stop. a result of that if that was the the error in conclude the jury appellant egregious then should have found Mr. did not cause 504, State, signal); Spence v. See Madden S.W.3d 516 & he did use his (Tex.Crim.App.2007); (de- n. 31 also 43 (Tex.Crim.App.2010) see S.W.3d 653-54 George Dix & E. John M. entitled 38.23 Schmolesky, fendant not to art. instruc- Criminal § 44:46 at 1055-56 Procedure, proper placement plate; Practice tion on of his license (3d ed.2011) (discussing disputed fact issues disputed no there was factual issue concern- setting examples 38.23 under art. out plate ing where license was—it suspicion instructions on reasonable dashboard; placement proper of a front motorist). detain a law, plate question histori- fact, jury, judge, legal cal so decides that 4. See Robinson v. 718- issue). (distinguishing (Tex.Crim.App.2012) be- dispute tween over historical facts and dis- (Tex.Crim.App.1996). 5. 922 S.W.2d 166 pute legal significance over of historical facts; defendant not entitled to art. 38.23 J., (Keller, dissenting). 6. at 174 P. Id. dispute instruction when was over whether required signal defendant was to turn use his roads, "meeting place" at two not whether See id. just opinion jury instruction was at 712-13.1 But this case harm because is a classic example of the Almanza legal gobbledy- tragedy. lump an indecipherable (including lawyers one gook that no Instead of going impossible lengths to paid or judge) any and the understood Hutch, disavow the plurality should take everyone attention to. But did focus on the time of Al inequality to look Marquez’s important Trooper issue: manza and overrule it instead. The con jury If believed that credibility. flicting decisions of the of appeals Marquez appellant plurality and the in Trooper stopped this case exhibit the Almanza in reason, conundrum created bogus anything trying he found as a re- harm determine vs. egregious harm. bogus not be sult of that used to Analysis under Almanza has resulted in appellant. convict And if the disbe- rulings uneven because the factors used to Marquez, they lieved would have Trooper distinguish egregious between harm and Because appellant guilty. found harm decipher. are difficult to In addi appellant illogical it is guilty, did find tion, the rational of Almanza having might conclude disbe- egregious harm standard in cases where Trooper Marquez. lieved object defendant did not belies the judgment I concur in therefore attorney ignore truth that no the Court. ethical duty consciously to his client and fail object to an improper charge. J., MEYERS, dissenting opinion. filed a I do not lawyer know who would always great I have loved theater and risk having an ineffective assistance of all makings Tony this case has of a counsel ruling against him on the slim right Award On stage winner. we have possibility charge may Judge plurality sterilizing Keasler in eventually of a guilty result reversal opinion Hutch verdict. plurality Charlie Baird’s in State, v. 922 S.W.2d 166 (Tex.Crim.App. clearly Appellate courts have had diffi- 1996), basically in the process elimi the culty weigh how to judging nating possibility getting relief ever factors, Al- but the worst feature standard Al manza under the harm egregious harm egregious standard that it State, (Tex.Crim. manza v. 686 S.W.2d 157 defendants, is so especially unfair to left, App.1985). Entering stage light of how we treat the State similar have Judge impassioned Price’s defense of situations. The State does not have to Almanza. Lastly, Judge our heroine harm, egregious show or even some day plurality by Cochran saves for the harm —the State does not have to show “that concluding the error State, v. at all because Malik harm charge not cause appellant egregious did (Tex.Crim.App.1997), S.W.2d 234 we be- harm just because instruction was stowed the hypothetically State indecipherable lump legal gobbledy-. Malik, jury charge. correct over- We gook that no one (including lawyers ruled Benson and Boozer relieve the and the either judge) paid understood or objecting State of the burden of J., attention to.” See cases.2 Malik Cochran, concurring sufficiency error in (Tex. thought I v. kinda that this instruction would 2. See Benson 661 S.W.2d 708 gold become the standard for harm. Crim.App.1982) and Boozer markings: certainly It all has 1. It was an (Tex.Crim.App.1984). S.W.2d 608 indecipherable lump legal gobbledy- 2. It was (a) gook It was not understood (b) (c) anyone lawyers judge. State,3 deriving v. exegesis its manza correct the hypothetically created of Crim not suffer of Article 36.19 of the Texas Code that the State does so charge Procedure,41 that it remains presume instruc- inal an erroneous when there is notwithstanding the disa tion, plurality’s be treat- intact why should the defendant so say, I it is safe to differently given today. be the almost think still ed vowal in, e.g., showing harm done example, task the Court has impossible of State,5 v. Stuhler from the same-error? lengths to to these going Instead egregiously harm- [jjury-charge error Hutch, equitable more it would be disavow very basis of the ful if it affects of Almanza enigma away

to do with of a deprives the defendant valu- charge under the and treat all error vitally or affects a defensive right, able It standard. seems same “some harm” examining to theory. In the record de- along all intent plurality’s obvious jury-charge termine whether appeals’s not to reexamine the court court should egregious, reviewing simply elimi- analysis in this case to entirety consider ability ever obtain a defendant’s nate evidence, itself, including con- object attorney relief if failed weight proba- issues and tested Therefore, charge. respectful- I defective evidence, counsel, arguments of tive ly dissent. information any other relevant re- trial by vealed the record as a J.,

PRICE, opinion. dissenting filed a whole.6 regard the appeals The court of did not standard, Relying upon this with with- in Hutch to be of plurality opinion binding by glosses plurality out added value,1 but found precedential nevertheless Hutch, opinion plurality and unlike authority opted persuasive to be today, jury-charge I er- conclude aspects I it.2 find at least follow also harmed egregiously ror in this case Hutch opinion per- plurality appellant. suasive, and for which I elaborate reasons opinion, agree I upon in this with OF THE ALMANZA APPLICATION appeals appellant egre- suffered STANDARD Therefore, gious harm in case. I re- this spectfully dissent. Entirety Jury Charge

THE ALMANZA STANDARD application respect with 38.23(a) Hutch simply reiter to the Article To the extent Al case,7 agree, we all instructed the propositions established ated basic State, (Tex.Crim. (Tex. 1. 3. v. 686 S.W.2d 157 Hutch 1985) reh'g). Crim.App. (opinion on App.1996) (plurality opinion). 4. art. Tex.Code Crim. Proc. 36.19. Gelinas v. 2011 WL See Paso, *5, (Tex.Crim.App.2007). (Tex.App.-El 218 S.W.3d 706 No. 08-09-00246-CR (not 2011) designated delivered June (footnotes omitted). Id. at (“The publication) suggests State that because plurality opinion, we Hutch is need 38.23(a) (“No 7. See Tex.Code Crim. art. Proc. certainly it. But follow That is true. because [illegally] an officer ... evidence obtained agree majority, we against the Hutch choose in evidence the ac- shall be admitted it.”). criminal case. cused on trial of to follow (if erroneous) Marquez’s testimony withstanding plain Officer un- the discount lan- exactly the circumstances opposite guage jury der instruction they law It the requires. disregard than the instructed should his testimony. This is the initial would jury appellant’s plurality’s preferred the hypothesis. Sec- 1) “disregard” ond, it “illegal,” they be such that must could have followed the erro- 2) it Marquez’s testimony, letter, event that neous instruction to found find com- appellant’s should “that his vehicle license-plate light was failed (and 3) ply Transportation Texas Code in fact white legal), therefore Provision, light which a white requires for that reason convicted appellant license plate[.]”8 upon illuminate vehicle’s based the evidence sup- Marquez course, But, light because a white is plied, keeping with the literal dictates of (but what Mar- exactly require, the law does the erroneous contrary 38.23(a) stop of quez’s appellant failing for to what Article actually requires). display quite a white have way would been We have no of knowing path which event, legal, jury would not took to appellant. convict the properly be instructed under Article certain, thing One we do know for how- 38.23(a) disregard stemming ever, is that pursuing the first path would stop. from the presented have with a difficult Marquez’s testimony, Without and the ethical dilemma. The record shows that videotape squad sworn, that was made from the jury duly though pursuant car to his roadside detention of of that appear content oath does not record, appellant, may safely the State’s evidence in this assume it was the rationally statutory case supported would have oath to render a true verdict appellant’s driving “according conviction while the evidence!].]”9 instructed, intoxicated. But convict him the did. jurors explicitly were moreover, jurors could have reached verdict boilerplate albeit in a provision only paths, one of two possible they consis- of the “are application para- tent with the judges erroneous exclusive of the facts proved, 1) First, graph. recog- credibility weight of the witnesses and nized the mistake in the charge given testimony, their but the law the (reading self-corrected it “complied” you will receive case Court 2) comply”), ap- you “failed to found that given is herein and are to be pellant’s license-plate governed thereby.” was not in fact There is general 3) white, and then convicted him based “have presumption appeal upon Marquez the evidence not- supplied, understood and followed court’s legal plurality today where Brief case evidence raises State’s at 10. The simi- hereunder, issue shall be instructed larly wishes more to characterize it as no believes, doubt, that if or has reasonable "typographical.” Plurality Opinion than that the evidence was obtained violation course, (the grammatical Of it is neither Article, provisions then such of this and in perfectly grammatical) is what I sentence nor event, disregard any evi- shall such regard "typographical." as The error obtained.”). so dence concept way expressed, is in not in the expressed it is on the or how rendered emphasis supplied 8. All unless otherwise page. impact, indicated. As if to ameliorate its applica- error in State characterizes this merely "grammatical.” tion 9. Tex.Code Crim. art. 35.22. Proc. language in the of the abstract nothing contrary.”10 the En- evidence to absent necessarily signal in- portion I would have serves to this tertaining presumption, accuracy application paragraph. the in the expected jurors that who understood correctly literally True, com- abstract instruction in- paragraph as the application it actually suspected jury illegally that the that obtained evi- posed, but who forms inaccurate, That, to in combina- legally experienced have dence is inadmissible.11 was degree angst respect application to the in the language a with tion with certain oath, ability to their the expressly jury collective follow that tells paragraph their to take given unequivocal requires the instruction Transportation that the Code (however inaccurate) from the plate, the law light white to illuminate the thereby. A jury be governed jury court and have to conceivably could caused Here, note, there was none. perhaps? accuracy application question hypothesis prefer leads me to That & paragraph’s characterization of failure jury path followed the second as a display a white circumstance (as above, finding readily have stop “illegal.” Far more would render the case) done on facts this simply juror confusion likely, it caused in license-plate was fact appellant’s event, if it even did consternation. (such comply he did “fail to white mistake, that would alert Code), Transportation and to with” only in the entangled have ethical Marquez’s inappropriately have considered I described above.12 It dilemma have (as testimony anyway required were clearly not have instructed would instruction) the erroneous per do how to resolve it. him. therefore convicted The Evidence plurality today obviously believes dire,

otherwise, During appel- voir counsel for the great power in the placing faith credibility lant made clear of the Article the abstract 38.23(a) arresting police officer would be an alert the in the case. He revisited that theme application portion. But issue mistake Hutch, supra, their at at 172. "that follow instructions.” Id. 799, Supreme 121 S.Ct. 1910. Court Well, at the written instruction does. least unhelpful ultimately presumption found the reporter's record that what The court reflects however, Penry, because the instructions at the trial court read aloud to the was internally contradictory, and "it issue were "as a result of an [sic] no evidence obtained logically ethically have been both would stop” against admissible lawful appellant, juror to impossible for a follow both sets of though the written instruction said 799-800, Id. 121 S.Ct. 1910. instructions.” at aloud, Thus, as it read "unlawful.” Here, similarly, the best that can be said 38.23(a) fully abstract Article instruction was 38.23(a) jury instruction is about the Article application consistent with the erroneous self-contradictory, hopelessly that it to alert and would have served capriciousness” jecting into "an element problem. The State has not respect pivotal to most issue the case represents shown that an incorrect tran- this 800, guilt phase at of trial. Id. at scription, no and so have occasion circumstances, these it is S.Ct. 1910. Under doubt it. imagine how the error could not difficult to confronting The ethical dilemma veiy basis "affect[ed] Penry in this case is reminiscent of that right, valuable deprive[d] the defendant Johnson, 798-800, 121 S.Ct. U.S. vitally theory.” defensive affect[ed] There, (2001). the Unit- L.Ed.2d 9 Stuhler, supra. Court, Supreme ed States like Court Hutch, appellate presumption invoked the A opening begin- properly statement at the during jury might instructed well have 38.28(a) guilt phase of trial. In his ning of the resolved the Article issue testimony, maintained that Marquez and, direct appellant’s favor discounting Mar- light was appellant’s license-plate “the testimony, quez’s acquitted him.14 acknowledged He wrong color.” cross- that he failed to note this fact examination Arguments of the Parties that report. his offense He testified the

license-plate light was red rather than At every point during relevant their white, and he did not remember his earlier statements, opening as well as in their testimony from administrative license lawyers final to the jury, for hearing at which he apparently revocation parties argued the facts respect say light actually could what color the license-plate issue of the color of the it was of a color only that “somewhat light as if the were properly instruct- was— white” other than but nevertheless “faint- ed. For all the from could tell acknowledged colored.” He even at one debate of the parties respecting Marquez’s point simply that he cross-examination credibility, appellant them preferred appel- “couldn’t tell it was white.” The white, find that was while the however, testified, later that lant’s wife the State urged them to find that it was not. illuminating plate the license was This is another factor that contributes to white, red, passed and that the car had impression the plurality’s every year state inspection its official necessarily must have suspected that the five years they the four or had owned 38.28(a) application Article paragraph was appellant the truck.13 While the also con- indeed, so flawed obviously flawed— efficacy tested the of the State’s evidence have must known what the trial intoxicated, he show that was the most say. court had meant to vigorously clearly disposi- contested and But when it came to tive in the case whether Mar- their iterations of issue was law, quez telling say parties unequivocally the truth to en- 38.23(a) license-plate light wrong was “the color.” dorsed the Article instruction plurality today Presumably plurality 13. The declares that "the testi- 707 & 710. wor- that, otherwise, mony suggests at trial that the video fails every ried erroneous Article conclusively establish the 38.23(a) color egre- instruction will be deemed plate light.” Plurality Opinion By at 704. giously harmful. Id. at 8. But the fact that a contrast, appeals the court of observed un- thus, jury-charge will certain class of errors equivocally videotape of the traffic "[t]he definition, one almost have at least Alman- stop depicts light illuminating a white finding factor that tends to favor a za Gelinas, plate.” supra, license 2420858, at 2011 WL against giv- harm does not counsel presently at *2. We do not have the ing weight the same as it would factor event, any video before us in the record. In any jury- have in the context of kind of other appeals’s from the observation it event, any In will not be error. seems at least evident that could every supporting case which evidence readily license-plate light found have 38.23(a) the Article instruction will be as solid have white. been 38.23(a) as it is in case. An Article given struction must time the plurality 14. The asserts that should not it, supports minimally. Robinson v. however give weight undue to the fact that the issue contested, (Tex.Crim.App. given S.W.3d that there must be a 2012). 38.23(a) every That does not mean that Article issue Article contested fact before an 38.23(a) egre- jury-instruction required error causes to be submitted to the place. Plurality Opinion gious in the first harm. mistakenly, read.15 At CONCLUSION literally, trial, describing they how beginning a straight- quite It seems evident the trial proceed, the trial to expect application of the Almanza factors forward jurors that informed the court had case that of this particulars to examine chance parties would 38.23(a) jury instruc- error in the Article any changes jury charge “to consider very tion affected basis made to those need to be feel right, deprived appellant of a valuable Later, respec their during instructions.” theory— vitally affected his defensive prosecutor arguments, final both tive short, your pick. appellant take appellant recited and trial counsel deprived impar- “a fair and was indeed 38.23(a) application the Article the judgment tial trial.”18 I would affirm verbatim, correction.16 without aloud— appeals. of the court of Because ju assured the prosecutor ultimately The not, respectfully I dis- today Court does rors, to the Article specifically respect with sent. 38.23(a) instructions, that, they’re “while convoluted, exactly it it says bit what

little have say.”17 argument should This JOHNSON, J., dissenting filed a boilerplate jury echoed the trial court’s opinion. you that “the law of case instruction v. I find no reason to disavow Hutch is given will receive from the Court State, (Tex.Crim.App. 922 S.W.2d 166 governed to be you herein and are 1996). thereby.” jurors every correctly had reason to The It followed dictates 38.23(a) (Tex. the Article assume that Almanza v. 686 S.W.2d 157 “exactly say.” it should indeed what said (op. still Crim.App.1985) reh’g), on which is had proposition The nevertheless jury-charge error. And standard (although plurality the wherewithal very being this to on all fours ease is close sense,” just might it it as calls “common with Hutch and should be resolved in the characterized as fortuitous plausibly be way. same all, at nullification—not common says courts reviewing contrary ordinary appellate pre to our itself, must the state consider flaw, how sumption) recognize to know evidence, evi- including contested it, apply properly to the correct dence, corrected, weight probative and the facts of case as this thus strikes evidence, counsel, arguments of me as at best. doubtful it to plainly say But he read a plurality 15. is mistaken verbatim, approvingly them parties argued very invited "both also the correct law it” the rest of for themselves. "read clearly jury.” Plurality Opinion to the respect parties What with to the asserted par- plurality disapproves of Hutch’s law suffered from same flaw upon principle that the ticular reliance arguments re- instruction did. Their parties "cannot substitute ought spect to how the facts of the case by Plurality Opin- the court.” instructions only applied to the confused parties ion here did not at 707. Because any juror paying who was attention. argue simply correctly, but instead the law the law endorsed the incorrect statement of fair, prosecutor 16. To be did not recite the principle this contained jury, application paragraph entire as any apply to case in event. this does Judge can seen from Johnson's dissent- been ing opinion. Dissenting Opinion at Crim. Proc. art. 720-21. 36.19. Tex.Code any other relevant information revealed There is dispute no that the application record of the trial as a whole. jury charge Alman- in this case at 171. stated za the law as issue of the color directly in a manner opposite The outcome of trial on a charge to the correct So let law. us look at that driving large while intoxicated rested to a as is dictated Almanza. degree on what the believed about the Clearly, error, the charge contained appellant’s color over error I significant. consider An error that plate, greatly that fact issue was con- legal converts an illegal act from is not a tested. Under a correct statement of the typographical mistake, error-a usually in- law, if the that the light believed volving misspelling misplaced punctua- white, must conclude tion, that recognizable as an error in and, result, illegal disregard as a context. The error this case had the is, stop, obtained all evidence potential to completely alter the delibera- dispute of intoxication. When factual jury, tions of the anot circumstance to be arises to whether the evidence was le- shrugged great off as of no import. Nor obtained, gally an instruction the issue should it be minimized because it occurred required. Thomas in the application paragraph. 696, 707 (Tex.Crim.App.1986). An paragraph abstract does not inform case, In this requested defense counsel a facts, the jury it, of if by what found jury instruction on the 38.23 issue. The permit the jury’s consideration of the con- prosecution objected to such an instruc- tested evidence. In this the abstract tion, saying, “paragraph” brief, charge gen- Suppression Your, eral, evidence— and printed, break, a without in the Honor, already this issue has been liti- physical same paragraph as the application gated in a suppression hearing before “paragraph”: “You are instructed that un- trial, this proper which is the vehicle for law, der our no evidence obtained or de- that kind testimony, of—that kind of by rived person an officer or other as a that kind of evidence. result of an stop unlawful and detention shall be admissible in evidence against juryA suppression instruction on issues such permitted accused. An officer is to point this unnecessary, would be con- make a temporary investigative detention fusing Questions to jury. of—what of a motorist officer specific has facts, he’s asking for is an instruction on which, facts, articulable taken together law, questions which is what the facts, with rational inferences those instructions should have. And all the him lead to that a person conclude de- facts that presented were before the is, tained actually has been or soon will be evidence, so, jury testimony, exhibits — — engaged in activity.” criminal This occu- know, object we do to that first pied ten paragraphs lines in in two evidence, suppressing reporter’s record, six lines in the same whether that be issue should considered paragraph application paragraph as the by jury. the charge. The is situation further com- IV R.R. 87-88. plicated by judge’s reading of the ab- objection The state’s stract appears paragraph jury: be that it to the “You are facts, law, jury, does want the finder instructed that our under no evidence find facts. obtained or an derived officer or other removed; appellant’s what wife stop and he had a result of an lawful person as appellant and to the officer. There said be in evidence detention shall admissible was no breath test. VI R.R. 99. accused.” against such arguments of counsel are to be con- The contrast, paragraph the application One out of three sidered also. detail, out, what was to specific set instruction, the erroneous an- reiterated determining whether considered jurors to it argument other told the read in the This took lines proper. themselves, and third vouched for record, charge. lines in the reporter’s the instructions. accuracy correct, paragraph took a application obtained general statement —“no prosecutor’s argument The lead covers person an officer or other or derived record, in the pages reporter’s thirteen stop” gave a result of an unlawful only application and his reference —and specific details about the circumstances lines. por- covers eleven That illegal that would constitute case partial reading tion ends with “ vehicle a white [have] failed failed to charge: comply ‘... his vehicle —“his illuminate the vehicle’s Transportation provi- with the Texas Code ” application para- sion, Because the plate.... requires white to illumi- portion' graph is plate,’ nate the vehicle’s license and then act,1 not suffi- authorizes the rest 114- you can read the of it.” VI R.R. cient received correct of the second argument prosecu- “It paragraph.2 struction in the abstract pages reporter’s tor covers twelve charge merely to not the function of the only mention of record. In his misleading confusing jury: lines, avoid charge, which covers two the second charge lead and is the function to for prosecutor explicitly vouched the accu- prevent confusion.”3 “And racy jury charge: of the these structions, they’re a little while bit convo- Almanza directs state us to consider the luted, says exactly say.” what it should evidence, any including contested VI R.R. 150. issues, weight of the probative entire evidence. at 171. are not Defense counsel read the errone- We only portion charge. is- VI R.R. 128. considering restricted to contested ous closing In the counsel’s The most contested issue was middle defense sues. light, prosecutor objected a lead argument, color of the but there was also misstating contest reason that that defense counsel was over second gave responded court to this originally stop appel- officer law. trial — signal objection by saying “you’ve lant not a turn when he entered been told did private parking throughout anything lot— this public a road a trial — is not R.R. lawyers that such a failure tell evidence.” VI the officer conceded signal “[Ajrguments not an offense could not counsel cannot sub- to by the appel- have a reason to stitute for instructions court.” formed valid 478, 488-89, v. Taylor Kentucky, were issues: 436 U.S. lant. There other contested (1978). 1930, 468 But why the officer edited the video and what 98 S.Ct. 56 L.Ed.2d State, 667, (Tex. Ibid. 1. Jones v. 815 S.W.2d 669 Crim.App.1991). State, 18, (Tex. v. Williams S.W.2d 20 Crim.App.1977). can an Why

those exacerbate both prosecutors. would the by it. repeating jury think was wrong? last Almanza concern other Nor is a this windfall for a defendant. by relevant information revealed the rec The state equally responsible for the Bailey ord of the trial as a whole. v. jury charge’s accuracy. may request It (Tex.Crim.App. S.W.2d instructions that it appropriate, thinks are 1993) Almanza). (citing This record does it may challenge requests from the de- appear not have “other relevant infor fense, may suggest to the trial.court mation” as to the issue of contested a is in error. light. license-plate Do not the prosecutors, like defense coun- considering

After sel, all of the Almanza have responsibility object a to er- factors, I would find that the erroneous rors in jury charge? In this instruction cannot be deemed harmless. state not only object error, failed to Jurors presumed are to have understood it urged read erroneous and followed court’s absent instruction and then vouched its accu- contrary. evidence to the Miles racy: instructions, “And these while 828 (Tex.Crim.App.2006) they’re convoluted, bit says little exact- (“[I]n the absence the con- ly say.” what it should trary, we will assume that fol- error, jury-charge When we consider instructions.”).4 Many, lowed its written must limit our review to what is most, are jurors lawyers prepared reporter’s record. not purport We should parse every statement in charge. jurors divine how the might inter- These heard the trial read preted instruction; the erroneous we may them an incorrect instruction the con- consider only reporter’s what is in the validity tested issue of the traffic unpersuaded record. I am and made stop: “You are instructed that under our suspicious somewhat repeated use law, no evidence obtained derived as “likely,” likely,” words such “most person officer or other as a result of an “unlikely,” “probable,” certainly,” “almost lawful stop and detention shall admissi- “obviousness,” well,” “obviously,” “may ble in and against evidence such accused.” “merely.” and “Common sense” is not prosecutor part lead read of the erro- common, many I prosecutors fear that and neous and told them to read juries have stories about that seemed de- themselves, the for rest of it the defense void of quality. counsel read the entire erroneous instruc- tion, very I it find it odd indeed that has been prosecutor and the second vouched error, the accuracy bigger for the asserted that the the erroneous instruc- jury tion. The received a smaller the chance that the error is harm- written ful: “In comported with the oral communica- the obviousness of those counsel, errors, jurors, tions of the judge, the trial defense the common sense of (Tex. ately inadvertently, no Gardner v. or which has relevance Crim.App.1987), inapt is in this case as it in and material issue the case carries regard presumptions deals with the in prejudice potential with it some definite efficacy by of an instruction trial court the accused, upon this Court has relied what disregard objectionable testimony. It is not appellate presumption amounts that an to an jury concerned with erroneous instructions. disregard the will be instruction to evidence majority argu "In the vast of cases in which obeyed by juiy." Id. in, testimony ment is made or deliber comes gen- All “Ladies and right. [The court] and the correct tlemen, refer the instructions of just par- law both the correct statements of VI R.R. 128-29. Court.” it prob- believe arguments, we closing ties’ the issue in resolved able that an that the error Also odd is assertion is, That accordance with law.” the applica- the defendant because benefits “obvious,” will surely error told the what to do tion use the correct law. But know that and evidence, but did not legally with obtained only to be a law- may “obvious” illegally to do obtained tell it what trial, of a unfamiliar context yer. In the a six- Suppose evidence. that one tells may lacking be common child, “I two ice-cream year-old have to know what chocolate, sense. And how the cones, the other is one is vanilla. judge is when the trial and the correct law cone?” like the vanilla you Would lawyers in case told them the knows there age all three Even a child of that ‘Tes, law? In this neither choices: I would like the same incorrect are still two cone,” “No, prefer nor corrected the I the choco- the trial court the state vanilla late Just because the second choice to have at- cone.” error. Defense counsel seems does not specifically is not articulated reading so after errone- tempted to do not known. instruction, mean that choice is explanation ous objection provoked by pros- an the second portion says, are in- The abstract ‘Tou ecutor, objection that indicates that an law, no that under evidence structed our had the standard prosecutor lead conflated officer other obtained or derived stop specific articulable valid result unlawful person — as a of an for a finding facts—with the standard detention shall admissible evidence jury-reasonable doubt.5 This is a cor- against such accused.” rect, statement of law. general telling you? What is the Court [Defense] is to jury’s first ice-cream cone find find he had white you you If —if evidence was in violation of obtained you had or even if plate —all consider it. The and that must not had was a reasonable doubt whether he jury’s cone is to find that second ice-cream illegal. plate, a license then the was not obtained violation know, you You can’t even have a reason- may therefore be of the law doubt, know you absolutely able for a six-year-old Like considered. fact— cones, rational presumably ice-cream Honor, object. I He’s mis- Your [State] on the knew that there were adults law. That’s not what stating the contested evidence two choices as says. beyond a rea- instruction It’s license-plate light. about the color sonable, specific facts. it’s articulable Any adult knows not all rational beyond I’m if it’s telling that [Defense] choices must be articulated order to be light, it was but the reason that a white in this though, known. Even you all have to have says that application paragraphs con- abstract it was or reasonable doubt of whether flict, non-lawyer ju- it seems me that was not. rors, obey told to the instructions when Honor, your given by judge the trial written Your that’s [State] depend applica- more on the will struction. comply you correctly [appellant] ... ... or 5. The stated the stan- failed thereof....” dard: find the evidence that ... have a reasonable doubt "If para- than on the abstract tion

graph because sets out the issue to be concrete, non-legalese lan-

determined in

guage. language That constituted sub-

stantial error. error in the

Because the times, least without

articulated at four cor-

rection, I find that error result-

ed in harm and affirm the judg- appeals.

ment of the court of

I respectfully dissent.

Ex Joe T. Jr. Parte ESTRADA 04-08-00596-CR,

Nos. 04-08-00597-

CR, 04-08-00598-CR. Texas, of Appeals

Court

San Antonio.

Nov.

Case Details

Case Name: Gelinas, James Henry

Court Name: Court of Criminal Appeals of Texas

Date Published: May 15, 2013

Citation: 398 S.W.3d 703

Docket Number: PD-1522-11

Court Abbreviation: Tex. Crim. App.