*1 GIESBERG, Appellant, M. Thomas APPELLANTS PETITION OPINION ON REVIEW DISCRETIONARY FOR HOLLAND, opinion Judge, delivered The STATE of Texas. MeCORMICK, which Court KELLER, Presiding Judge, No. 696-97. PRICE WOMACK, Judges, joined. Texas, Appeals Court of Criminal the murder appellant A convicted for En Banc. appellant to Montes and sentenced of Ramon Sept. Depart- in the Texas years confinement Divi-
ment of Justice —Institutional Criminal ANN. TEX. PENAL CODE sion. See (2). 19.02(b)(1) The trial court made an & ap- finding judgment in the affirmative weapon pellant deadly in the commis- used Appellant appealed his murder. sion Appeals. Court of conviction to the First Appeals affirmed the The Court of First Giesberg judgment. trial court’s (Tex.App. [1st Dist.] —Houston 1997). petitioned this Court Appellant the First Court of review decision of on Appeals. granted review This Court by appellant for ground second review raised petition: in his erred “Whether err in holding the trial court did not request in- denying appellant’s for a theory of alibi struction on the defensive fairly the issue.” after the evidence judgment of the First affirms the Appeals. Court of 12, 1990, Ra- July appellant murdered On sister, Montes, mon the husband of his and severe- stabbing Montes in the abdomen Testimony at trial estab- ly burning Montes. July 12th lished that was seen body of standing over the Montes July balcony apartment. Prior of Montes’ 12th, severely appel- allegedly beat Montes sister, anger. appellant’s provoking lant’s case-in-chief, present- the defense’s evening the mur- ed that on the Valhalla, drinking with friends at der he was University graduate students. for Rice bar guilt at the After the close of evidence / stage, appellant requested that innocence Wice, Houston, appellant. Brian W. his defensive instruct the trial court theory of alibi: DA, Houston, Roper, Assist. Kelie Pool Austin, request Paul, “Additionally, would Atty., the defense Matthew State’s following: defense —a defense set State. *2 up by the defendant in explain this case is what is First went on to that alibi merely known as an alibi at of killing, negates the time the evidence an element of the the defendant was at and general- another different offense. Because the alibi evidence place, ly not and disproving presence was could not have been the the focuses of a person you crime, who committed offense. If place defendant the time at and of the have a presence reasonable doubt as to the which is an essential element of the State’s case, of place Appeals the defendant at the where the the First Court of overruled Id., point offense appellant’s was committed at the time the of error. at S.W.2d committed, you offense was then will find guilty.” defendant Court, petition his and before brief this
Appellant request based his appellant argues jury two defen- should have been sive theories. Both theories rested on the instructed on his alibi defense. He contends proof State’s that adoption the murder Montes oc- of the Model Penal First, Texas, curred in appellant system the late afternoon. codifying and its de testimony offered from boss that appel- his fenses and affirmative defenses available p.m. defendants, lant left work between 4:00 and 5:00 to did not eliminate entitlement Though make conceding separate special some deliveries. to a instruction on the de investigating by State’s evidence from an fense of alibi when it is raised the evi recipients officer that Appellant points appellate deliveries dence. out the made, appellant claimed no deliveries were courts of State are divided over this produced agreed evidence “of Appeal one of deliveries issue. Courts of Some being having stamp made a file of the date of the First that a case defendant is, Appellant’s offense.” first is es- not entitled to an instruction on the de sentially, making that he was merely deliveries at an negates fense alibi because it Second, the time of the appellant murder. essential element of the case. State’s Holli proof 85, offered to he (Tex.App.— arrived at man v. Bar to pet.); Valhalla meet his friends at Houston no [14th Dist.] 6:30 and Vil p.m. Though one of his friends testified that larreal v. 684-686 appellant supposed pet.). was been (Tex.App. have there at Antonio no Oth —San 5:30, they supported all his claim that he is ers have stated that a defendant entitled by Appellant argued there 6:30. an is instruction on alibi when court impossible Rogers it would have been by for him raised the evidence. Montes, pet. murder be seen around (Tex.App. Tyler the scene S.W.2d 18-19 — murder, ref'd)(“A given and be at the Valhalla Bar need not be on alibi p.m. Appellant’s 6:30 trial counsel with the contended unless the evidence is inconsistent this created a reasonable “as to puts doubt wheth- State’s defendant at the case which scene, er or not he was at scene at the time of the commission of the up, offense.”); cleaned [the and arrived there Valhalla Byers v. together, argued appellant pet.);
Bar].” Taken 634 (Tex.App. Tyler no — court, evidence, (Tex. the trial this “creates some Gates v. may suggest App. some pet.). granted alibi.” The no We —Beaumont request appellant’s disagreement trial court denied for an review to resolve this instruction on alibi. decide in this is defendant State entitled on alibi it to a instruction appellant argued appeal, On direct the “tri- is raised evidence. denying appellant’s request al court erred for a instruction the defensive issue was not Court concludes fairly of alibi after the evidence an on his entitled to defensive issue.” First Court of conceded issue of We reach this conclusion be- alibi. that a is defendant “entitled to a in- cause find the issue we defensive of alibi every negation struction on defensive issue raised constitutes no more than Giesberg evidence.” 945 S.W.2d essential burden element State’s 124; But, proof; specifically, cases cited therein. committed may required party on trial time and location. that the the offense of his own de- the burden the fact assume also base this conclusion We defen- Comparing the fense.” Id. at 79. not made alibi a defense has to a case where dant’s case defense. affirmative *3 has the burden to charged with murder and alibi, recog- I. Alibi Before the 1973 this Court The Law of the defense of met his Revision of the Penal Code. a has nized that once defendant in by creating doubt the a reasonable burden Penal to the 1973 reformation of the Prior give jury, the the trial court should minds of Code, adoption of the new Penal Code and in of alibi proper charge a on the defense R.S., 23, 1973, May Leg., Ch. 63d see Act of comply a construc- order reasonable (effective 399, Tex.Gen.Laws 883-996 1973 State, 181 the Anderson tion of law. 1, 1974), recognized as January alibi a was at 79-80. justified which an instruction the defense State, jury it the Friga when was evidence In 488 S.W.2d 434 (Tex.Crim.App.1973), In Funk v. 84 found the trial. Tex.Crim. this Court (1919), sufficiently the court 208 513-14 raise the defense S.W. evidence did not and, charged jury consequently, the of the law that an instruction the law of alibi necessary. evidence. In principals1 and circumstantial not of on alibi was the (Tex.Crim. complained The defendant the instruction 511 S.W.2d 21 Nelson v. principals prose- App.1974), the law of was erroneous because was where defendant murder, of had This Court the defense alibi arisen. conclud- cuted a 1971 this Court ed, of concluded instruction on law alibi alibi arises when there is “the defense of required. had “The of point not been defense a that the accused is at where participating where there is evidence that guilty arises not been of he could have point is at where he not have been a could can seen from these in offense.” As Funk, guilty participating in cases, predated of the offense.” the law which the enactment pursued pro- 208 at 514. the State S.W. Because to the Penal Code of the 1974 revisions guilty was as a that the defendant to an was entitled vided that defendant offense, party making of his of alibi when that instruction on the defense unnecessary, presence this scene was raised the evidence. the trial court not re Court concluded give After the 1973
quired to an instruction on the defense II. The Law of Alibi also, of 140 Tex. Revision of Penal Code. alibi. Id.See West v. (1940)(on Crim. revised Penal Code was in effect at rehearing)(wherein this Court concluded commission of the rob the time defense of alibi arises when evidence subject appeal in bery which was point a defendant is at a where he shows (Tex. 836, 840 Arney v. guilty partici could not have been found Crim.App.1979). Amey, In the defendant offense). pating in the it argued trial court erred when refused the de requested “his instruction on Anderson v. Tex.Crim. However, (1944), Id. this Court did 79-80 this dis- fense of alibi.” in the Penal Code prov- not the revisions cussed the burden a defendant bears address request instruc- effect on defendant’s defense so as to receive their on alibi. This Court for a tion on the defense alibi. The entitled to a sought defense that she concluded defendant is Anderson raises the issue qualified exceptions to the on alibi when the evidence for one of the place where he liquor defendant was in a proscriptions against transporting stated, guilty partici “it been found the State. This could not have within Arney v. procedure pating in the offense. thing in the criminal a new time, par- pals parties. the law of on the law of 1. At that an instruction princi- ties was both an instruction on law conclusion, Court, reaching S.W.2d at 840. In pointed that under revisions upon pre- Code, Court relied authorities which to the Penal affirmative de- dated the 1973 revisions the Penal Code. apply justify fenses partic- a defendant’s ipation in explained a crime. This Court how We conclude this Court Ar erred attempt justify partic- an alibi was not an ney it did not address revisions crime, ipation in a “disprove but to one es- the Penal Amey, Code. The decision in prosecution’s sential factor in the case— presumed where it that the older common- namely presence of the accused at the law rules on the alibi were still place Miller, and time crime.” controlling, was in examining error. After If a S.W.2d at 96. defendant wishes to plain language 1973 revisions to rely defense, alibi as he bears the the Penal Code that became effective *4 duty going of forward with evidence raising this Court now concludes that criminal defen an alibi in order to create a reasonable doubt dants longer were no entitled in to a presence of the defendant’s the at time and struction on the defensive issue of alibi. place where crime the was committed. If adopted, When the new Penal Code was presence the defendant’s actual at the time the designate chose not to alibi place where the crime committed is statutory as a In defense. the Penal case, part prosecution’s an of essential Code, alibi not enumerated either as a State must the defendant’s actual defense or as an affirmative defense. See presence beyond at the of the crime scene §§ TEX. PENAL CODE ANN. 2.03 and Miller, S.W.2d at reasonable doubt. 2.04; Chapters Eight and Nine.2 In the re- this, From authorities cited therein. it Code, vised Penal defense only can be seen an that alibi can create a distinction is for reserved defensive theo- doubt about whether the has met State its involving ries a defendant’s admission that proving burden of that a defendant commit- crime, he or she committed but ted the offense where the defendant’s actual explanations to justify a defendant’s actions presence place at the time com- culpability. absolve defendant of It of in mission the offense is an issue also includes defensive theories which do case. State’s not involve of in complicity admission crime, commission but which opinion This Court’s in Miller v. State attempt explain why nonetheless to a de- draws alibi is not a attention to the fact that criminally culpable. fendant is not defense, special intended to but is instead This changes deny Court discussed these in the in issues tendered to the Penal to Legislature’s Code addition explains defense alibi indictment. This (Tex. Miller designate failure to alibi as a defense or as Miller, Crim.App.1983). In the trial court an affirmative defense. Alibi was excluded chose to instruct the on alibi as a de from Revised Penal Code’s list of defens- However, fense. the defendant Miller es and affirmative defenses because it requested an on affir negate necessary alibi as an serves to element of mative defense.3 trial court that The refused the State’s case—the defendant’s request. This question presence Court faced the the time and location whether a defendant was entitled an in commission of crime. An alibi does not on attempt struction alibi as an affirmative justify or excuse a defendant’s Miller, prosecution. Judge writing for this actions.
2. The affirmative set defenses out in the Texas Miller v. In. Court was not called (§ 8.01), proper insanity to decide had been for Penal are if it the trial mistake of law (§ 8.05). 8.03), (§ court to instruct as a alibi defense to and duress The defenses set only question prosecution. The before this Court out in the Texas are Penal Code mistake fact in Miller was an instruction on alibi as (§ 8.02), (§ 8.06), entrapment justifica- and the Therefore, proper. an affirmative defense was Chapter tions conduct set out Nine of the authority proposi- Miller can not stand Code. Texas Penal are entitled tion defendants to instructions prosecution. as a affirmative defense which re- Alibi is similar other defensive issues jury. in the quired inclusion negate which also an element or elements proof, burden of but do not war- State’s in Sanders its clarified decision example, special jury rant instructions. For in Willis v. 314-315 purchase Willis, good faith the defensive issue In (Tex.Crim.App.1990). Sanders strong to alibi. bears similarities its earlier decision defendants affirmed (Tex.Crim. 80-81 instructions on non-stat- not entitled to were App.1986), provides the de- this Court faced whether utory statute defenses in- began an affirmative applicable fendant was entitled to defense. This Court “good “power faith to estab- reiterating struction on his defensive issue of the rule the defenses to criminal of- purchase”. between the de- lish and define The similarities discretion of good pur- fenses” rests “within sound of alibi and faith fensive issues Id. legislative government.” decision, branch chase make the Sanders and its legislature has done so within the 314. The helpful deciding progeny, the issue in this Eight Defenses to Crimi- Chapter “General in Sanders relied on cause. justifi- Chapter Responsibility”, the Nine nal pre-1974 precedent which that defen- ruled conduct, criminal and within some cations for “good entitled dants were to instructions penal provisions which define de- particular *5 purchase” faith was that issue conviction for certain offenses. fenses to began a the evidence. This Court 314-315, v. at Willis changes in the Penal discussion the pur- “good faith note at 315. Because Code. anywhere legisla- not a chase” was listed as has, “This Court since enactment a or affirmative tive enactment of defense Code, the new Penal noted that the Penal defense, this Court concluded defendant specifically lists that Code “defenses” and “good an was not entitled to instruction the bench and bar should not use the term Willis purchase.” faith specifically an not “defense” for issue so in principle, the decisions at On A perusal labeled the Code. ... of the complete and Willis were in accord. Sanders a new Penal assures one that defense Willis, However, in this Court revisited merely negate does not an element of an Sanders, holdings in Sanders. In one of the offense.” made blanket statement that this Court Sanders v. 80—81. admit that he require the accused to defenses runs principle Court concluded that “one offense, but or she committed throughout” all of the “evi- Code’s defenses: justified in or- conduct was excused or that requires dence which constitutes a defense responsibili- them of criminal der absolve the accused to admit the commission of the Sanders ty. in concluded that This Court offense, justify his so but to or excuse actions participation a all defendant denied where responsibility as him of to absolve criminal offense, to a he or she was not entitled an engaging for con- in conduct which otherwise they only instruction because were defensive stitutes a crime.” This meant for this Court allegation they committed the negating the that a defense would consist of Willis, concluded offense. Court defendant and did facts which exonerated a holding in Sanders that all statu- scope of the “simply disprove of the of- not an element tory to admit required an accused defenses Id. a 81. This Court concluded subject fense.” offense too commission theory which does no more than explained defensive This Court broad. charged
negate
advancing
an element of the
offense
argu-
a
course of
defendant
good
pur-
does not warrant an affirmative instruction
or
made a
faith
ment that he
she
property,
on that defense. Because
ne-
of stolen
defendant
chase
(that
that he made a
defendant’s claim Sanders
of the offense
theft
gated
element
intentionally
knowingly pos-
purchase
property
good faith
of the stolen
he or she
stolen)
in they
with-
negated
participation
burgla-
property
knew to be
his entire
sessed
way
In this
ry,
justify
participation
negating
in the
entire offense.
and did not
his
out
mistaken
a defense of
burglary,
he did not
the defendant created
this Court concluded
only
culpable
belief as to
mental state
room within that instruction
circumstance,
element
In that
effectively argue
theft.
alibi to a
v, State,
jury.
defendant would
be entitled to
defensive
Sanders
Appellant, raises concern if this weight any given to be of the evidence. towas conclude he was not entitled to Hawkins v. instruction on the defense of alibi Cf. (Tex.Crim.App.1983)(concluding that an in legal would cease to exist a viable good struction on the defense of faith would disagree. viability Texas. We If of alibi improper weight be an comment on the as a dependent upon defensive issue is plac- *6 evidence.); State, Roberson v. 852 S.W.2d jury the issue of before during alibi a its State, 511 deliberations, (Tex.Crim.App.1993); Laws v. viability that is not threatened (Tex.Crim.App.1977)( 549 by 740 separate jury absence of a instruction determining instructions that on mistaken on requested appellant alibi like the one identity improper would constitute comments this cause. The defensive issue of alibi weight evidence); on the and Waller v. nothing involves than presentation more State, (Tex.Crim.App. 581 S.W.2d 483 argument evidence and a defendant 1979)( noting flight on an instruction was not at the scene of the crime to prosecution being guilt avoid indicative of words, commit the crime. In other it means improper weight was an comment on the presenting question of wheth- evidence.). This Court concludes that a er simply the defendant it. did This is separate a instruction alibi as defense negation allegation of the State’s that a de- would draw unwarranted attention to evi fendant did then and there a upon certain place dence that was at another date and a certain location commit a cer- State, when the crime committed and would was tain crime. Miller v. at 660 S.W.2d improper therefore constitute an comment on A goes defensive which no issue further weight of the evidence. merely than negate an element of the Furthermore, alleged by authority offense the State its indictment because the place does proof upon not a burden of a to establish what constitutes a defense rests solely defendant it. Legislature, establish The burden of with the Court con upon allega- recognized is those State cludes a defense which is not only allega- Legislature tions. An alibi traverses those as a defense or either as tions and casts doubt sepa State affirmative not a defense does warrant result, State, its has met burden. As a an alibi is rate instruction. v. Sanders 707 sufficiently general charge embraced to S.W.2d at 80—81. The term defense should that the presumed defendant is in- not be for an not been used issue has proven guilty specifically Legisla nocent until he or is she be- labeled such State, yond S.W.2d, 640, ample is reasonable doubt. There ture. v. 630 644 Williams
251 many years ago that “in (Tex.Crim.App.1982); Court held over 125 Willis v. only 315; is the evidence which an [alibi] v. State. cases Sanders v. can offer.” innocent man Walker appellant’s alibi involved Because (1872). Indeed, this has Court Tex. complete negation of nothing than his more if the raises the issue that held instant involvement in the commission of the place other at the was some offense, concludes have committed and could therefore time separate not entitled to a instruction crime, of alibi is alibi. The did not defense of required. Arney v. 580 S.W.2d include alibi within the enumerated defenses (Tex.Cr.App.1979); and Windham Code, statute, any other of the Penal 162 Tex.Crim. legislate and this will not such (1956).1 change existence. conclude the into We Appeals correctly Court of held the trial Narrowing when an alibi instruction re- appellant’s err it court did not denied quired, must this Court held instruction request for on the defen- instruction given when the defendant additional- ground Appellant’s sive of alibi. ly pres- as to his offers affirmative evidence review is overruled. See, elsewhere. Burns ence (Tex.Cr.App.1974); Windham v. S.W.2d 366 The decision the Court 162 Tex.Crim. judgment of the trial court are affirmed. (1956); McClung, Charges Jury and Paul J. (1995). Criminal, pp. the Texas 236-37 BAIRD, J., dissenting opinion files a also, (1982); § See 23 Tex. Jur.3d Alibi J., OVERSTREET, joins. which al, and, J. et 8 Michael McCormick MANSFIELD, J., dissenting files a Texas Criminal Forms and Trial Practice: opinion. (10th ed.l995)(includes rec- Manual 102.10 instruction). wording for alibi ommended MEYERS, J., dissents. requirements for an These BAIRD, Judge, dissenting. go beyond merely negating an far element of Additionally, appellant has offense. majority holds defense of alibi pointed post-submission in a letter of out “merely negate[s] an element of the offense” *7 authority least one United States and, therefore, necessary. no instruction is if determined has majority The Ante at 250. also holds a trial sufficient, is has a evidence may judge give never an alibi instruction. right process Amendment and due to Sixth Believing holdings contrary both are to es- jury. submitted to the Unit- have issue precedent, I tablished dissent. (4th Hicks, ed v. 748 F.2d 857 States Cir.1984).2 I. recounts, majority appellant
The
is
offered
alibi well established
As
employer
legal
Supreme
The
from his
jurisprudence.
affirmative evidence
e.g.,
See Moosani
1.
has held if evidence introduced
also warrant
instructions.
This Court
State,
any
(Tex.Cr.App.
an
on a
v.
S.W.2d
570
from
source which raises
issue
914
must,
1995)(Baird,
theory,
theory
proper
dissenting),
a
defensive
J.
discussion of
Oje
charge.
request,
recognized
prosecu
be included in the Court’s
law defenses
common
(Tex.Cr.App.
744
unlawfully carrying weapon.
da v.
712 S.W.2d
tions
1986).
law has been that the accused is
The
to
instruction on the defensive
addition,
entitled
an
regard
due
for the Fifth
"...
In
by
even if the issue was raised
defen
leads to the inevitable conclusion
Amendment
testimony.
v.
Miller
815 S.W.2d
dant’s
permitted
be
to
an
that defendant must
and,
Hayes
(Tex.Cr.App.1991);
585
testimony.
by
United
alibi other than
his own
1987).
(Tex.Cr.App.
807
(5th
Curry,
25
F.2d
n.
States v.
Cir.1982). Failing
give
an alibi
Additionally, it should be noted that defensive
See,
thus an error of constitutional
instruction was
are
defenses.
issues
generally
not limited
magnitude
Chapters
...”
8 and 9.
Tex. Penal Code Ann.
Id.,
The fails to this dis- expressly parties waive it. Garrett v. tinction, give nor court deference to trial 159 Tex.Crim. judicial process. role in their (1953). In system parties our are adversar- II. ies; judge parties may is not. The Unfortunately, majority . opinion also strategic make pres- decisions whether to beyond reaches the instant ease and address- evidence, ent will the evidence deter- presented, namely es an issue not applied. mine what law must be To that jury may given ever alibi instruc- extent the adversaries’ decisions affect the special tion because “a instruction for charge. charge court’s But is the needlessly jury’s issue alibi would draw a judge’s. attention the evidence which alibi.” spite In precedent, statute and this Ante, holding, majority at 250.3 In so may judge this Court now holds trial never appreciate fails judge that it is the trial on the instruct defense of over- required who is determine on a case years law, ruling over one hundred of ease necessary: case basis which are instructions - any analysis support. without judge After the shall have received objections charge, to his main together has determined the trial any special offered, may charges he judge position is in best to determine changes make such main as what instructions should be delivered to the may proper he ... deem jury. legislative Consistent with this The Tex.Code scheme, Crim. Proc. Ann. art. 36.16. judge the trial should determine if major- instruction is warranted. The Posey ity needlessly meddles this scheme J., (Tex.Cr.App.1998)(Womaek, concurring), holding may an alibi instruction never be Judge Womack following expla offered the given. Accordingly, I dissent. judge prepar nation the role charge: OVERSTREET, J., joins. requires ... judge Our law that “the ... *8 shall ... ... deliver a written MANSFIELD, Judge, dissenting. charge distinctly setting ap- forth law case_”
plicable to the
Code of Crimi-
Appellant, in his brief on the merits and in
Procedure,
nal
Article 36.14.
support
petition
his brief in
of his
for discre-
36.14, V.A.C.C.P.,
review,
legal
places
tionary
opinions
Art.
cites several
from
duty
responsibility
judge
appellate
and
on
the federal
courts and from the
prepare
proper
appellate
support
for
and cor-
of
in
courts
other states
charge
law,
argument
rect
and
in-
the law
should be
may
applied
be
facts
adduced.
structed as to the defense of alibi as an
they rely
presumption
For that contention
four dissimilar
included
of inno
instructions on
parenthetical explanations, offering
cence,
cases with
doubt,
adequately
reasonable
and
analysis
why
no
ings
alibi conforms to the hold
rights
protected
court
a defendant's
and the
did
Inexplicably,
those
cases.
the Court fails
refusing
requested
err
not
in
on mistaken
recognize
identity
that alibi and mistaken
are
identity.
identity
and mistaken
are not the
Alibi
purposes.
same
for instruction
In Wilson
defense, therefore,
type
they should not
same
(Tex.Cr.App.1979)(op.
v.
253
examples,
accused
above
In both
in Texas where raised
affirmative defense
if
Mason,
to a
See,
902 will be entitled
e.g.,
v.
U.S.
evidence.
fairly
the defensive
raises
(9th
evidence at trial
1434,
Cir.1989); Strauss v.
1438
F.2d
v.
916 S.W.2d
alleged. Hamel
(5th
U.S.,
Cir.1967);
419
F.2d
376
v.
(Tex.Crim.App.1996); Smith
493
(9th
Goldsmith,
v.
979 F.2d
748
Thomas
(Tex.Crim.App.
Burse,
Cir.1992);
v.
531 F.2d
U.S.
1984).
(2nd
Brunner,
Cir.1976);
Commonwealth
(1985);
Pa.Super.
A.2d
State
Alibi, however,
theory hav-
is a defensive
Leecan,
Conn.
As *9 Crim.App.1983), the contended murder under the offense of indicted for failing charge that he by shooting trial court erred 19.02 Texas Penal Code alibi, law a common affirmative deadly weapon, wit: a must complainant with defense, accused, by preponderance of evidence. admitting while he firearm. The is not a affirmative he so in We noted alibi complainant, avers did shot defense, Texas, that it is a complainant prevent from shoot- order held, affirmative We rather than an defense. accused’s claim is his him first. The effect, affirmative de alibi is justified under as self-defense conduct was justify an ac- explain intended §§ 9.32. fense Penal Code 9.31 and actions, simply cused’s but is an accused’s
effort to doubt he cast about whether com- alleged by contesting
mitted the act es- case, namely,
sential element of the State’s
that the accused was the time and
place where the offense was committed.
Therefore, appellant was not entitled to a
jury instruction on alibi as an affirmative
defense. my opinion, general Texas, recognized
should as it is cur-
rently recognized in the federal courts and many courts other states. The
Legislature, it disagrees, if is free to statuto-
rily recognize us overrule should we the de- See, e.g.,
fense of alibi. Grunsfeld (Tex.Crim.App.1992).1 S.W.2d 521
Accordingly, judgment I would vacate the Appeals the Court of and remand this
cause to that court in order to determine was harmed the denial request for a applicable analysis being harm that set
forth Almanza v. (Tex.Crim.App.1984), and Texas Code of
Criminal Procedure Article 36.19. respectfully
I dissent. JONES, Appellant,
Ned Texas, Appellee. STATE
No. 101-98. Texas,
Court of Criminal
En Banc.
Oct. *10 Sep- Legislature, 1. Overruled the 73rd effective amendment to Texas amended 3(a), Criminal Procedure Article 37.07 Section tember