*1 or the amendment asserts a new cause of
action, prejudicial face, and thus is on its HUIZAR, Appellant, Vincent the opposing part objects to it.” Southwest Franco, ern Sys. Bell Mobile Texas, Appellee. The STATE of (Tex.App. Corpus — writ); Ahmad, see also Rocha v. No. 04-96-00837-CR. 154-55 (Tex.App. Antonio — San Texas, Court of dism’d). writ post-verdict Similarly, motions San Antonio. for attorney’s fees effectively serve as trial granted amendments be within the March 1998. trial court’s discretion. Southwestern Bell Sys., Mobile at 225. Hospital
The specifically did not re quest attorney’s prayer fees in its for relief. Hospital’s The prayer relief will not support Walters, an such award. See However, at 888-89. under the Tex Open Act, Meetings party is not entitled to an attorney’s award of until fees it has
“substantially prevailed.” Tex. Gov’t Code 551.141(b). After the trial court oral Ann. ly claims, announced the dismissal of Swate’s Hospital attorney’s filed its motion for fees. The motion was filed before the trial entry judgment denying of final application. presented
Swate’s Swate no evi surprise injury, dence of nor did he an object swer or to the motion. Consistent with its discretion Open under the Texas Act,
Meetings granted trial court attorney’s motion for days fees seventeen after it was filed. Hospital
The timely record shows that the requested fees, attorney’s sup- award of
ported evidence, competent given ample
and Swate was respond, time to but did not. The court did not its abuse fees, in awarding attorney’s
discretion and the is legally factually evidence suffi-
cient the award. fif- Swate’s teenth, sixteenth, seventeenth, eigh-
teenth points of error are overruled. judgment of the trial court is affirmed. *2 of Rich- Langlois, E. Law Offices
Richard Antonio, Appellant. Langlois, ard D. San Atty., Thornberry, Asst. Crim. Dist. Daniel Antonio, Appellee. San HARDBERGER, C.J., and Before LÓPEZ, STONE, GREEN, RICKHOFF, JJ., ANGELINI, en banc. DUNCAN and
OPINION
LÓPEZ, Justice. appeal from the conviction of This arises aggravated sexual as- Vincent Huizar for guilty A Huizar sault. found punishment at confinement for and assessed $10,000.00 years fine. Because we pun- error in the trial court’s find reversible charge, judg- affirm we conviction, and reverse the sentence hearing punish- and remand for a new ment. case, sixth-grade in this stu-
The victim dent, reported counselor that a to her school living at house had sexual- man who was previous day. ly her the The coun- molested reported selor the event to Child Protective J.N., student, reported later Services. man assaulted her two other had thereafter, Huizar, Shortly J.N.’s times. cousin, aggra- on one count of was indicted vated sexual assault. error, point
In his Huizar contends not receive effective assistance of that he did Specifically, com- counsel at trial. Huizar plains guilt-innocence (1) object to: failed to, hearsay rulings to evi- or obtain adverse Williams, witnesses Mor- dence State’s (2) Navarro; to, ales, object pre- toor testimony by and the serve error Williams J.N., been complainant, that the latter had multiple occa- sexually abused Huizar on (3) (1984); see Holland sions; limiting instruction to L.Ed.2d 674 (follow- jurors they inform would have to find Strickland to de- proof beyond they doubt before standard established Her- misconduct; counsel); consider extraneous could termine effectiveness object victim-impact testimony by Lee nandez *3 failures, In trial Strickland test (adopting Navarro. addition to these Crim.App.1986) Strickland, Texas). attorney Huizar maintains that his failed to appellant Under during pun- (1) render effective assistance attorney’s perfor- must show that of his trial to re- deficient, mance was the defi- jurors quest an instruction to instruct performance prejudiced the defense to cient that he evidence of the extraneous offense degree deprived such a that he was of a fair (another cousin) Holland, (reit- abused A.R. must be estab- trial. See at 314 they lished a reasonable doubt before Strickland erating test for ineffective assis- counsel). could consider that evidence. attorney pro- tance of an Whether determined vided effective assistance to be failures, argues, Because of these he trial, through hindsight. as of the time of permitted was to hear inadmissible tes- 503, See S.W.2d Stafford timony that was harmful to his case. These (Tex.Crim.App.1991); Butler v. deficiencies, attorney’s combined with his (Tex.Crim.App.1986). preserve appel- the trial record for review, Huizar, represents late an “abdica- The Strickland apply, test does attorney’s] tion of basic threshold re- [his however, phase of a non- sponsibility require the State to establish Strickland, the test capital trial. Instead guilt by admissible evidence.” While Huizar Duffy parte Ex parte from Ex is used. See right recognizes the constitutional Duffy, not mean errorless counsel counsel does 1980) (establishing test for ineffective assis judged hindsight, argues he that the com- of non- tance of counsel show that his bination these circumstances trial). Duffy, appellate capital Under attorney’s representation fell below ob- counsel was court must determine whether jective of reasonableness. Conse- standard reasonably likely to render effective assis argues, quently, Huizar should reasonably and whether counsel ren tance grant him a trial. new Craig See dered such assistance. Hui- response, (Tex.Crim.App.1992); In the State maintains that effective assis- Duffy, attorney provided zar’s trial applying at 516. In guilt- by defending standard, totality tance Huizar the court consider by calling innocence of trial and wit- judge the com of the circumstances to both punishment phase. The nesses actual petency of counsel and the assistance Felton, parte Ex speculates that defense counsel’s trial ly State rendered. im- to admit to an strategy (Tex.Crim.App.1991). have been proper relationship Huizar and the between Complaints About the Guilt- complainant, deny actual sexual
child but Innocence Phase His Trial instruction on the intercourse to an indecency offense of with a lesser-included complaints guilt-inno- As about the failure to child. The State characterizes trial, phase of his Huizar relies on cence concerning the limiting appears inadmis- testimony that to have been testimony of A.R. context, but hearsay when taken out of sible that did not phase as an isolated omission properly admit- not consider other does assistance of counsel. constitute ineffective facts. establishing the same ted evidence reporter’s carefully rec- attorney provided effec- Huizar dissected an has Whether points at which his phase of ord and identified the guilt-innocence in the tive assistance attorney could have done something using trial non-capital is determined not, and then Washington, set out in Strickland 466 more but test 2070-71, assis- 698-99, developed argument for ineffective 104 S.Ct. U.S. you going know example, Q: tance of counsel. For Huizar com- How did what he preserve plains that failed to to do? testimony by error as to Williams Witness it A: Because he did before. concerning extraneous misconduct. many he Q: how times before had And was the at Williams school counselor J.N.’s done it? During school. Williams testified A few times. A: J.N. told her that Huizar had assaulted many? Q: How day previous reported that she A: A few times. to Child
incident
Protective Services.
response
questioning by
Thus,
the issue
raised
that was
Williams testified
follows:
Williams’s
—whether
Q:
And do
when she
remember about
*4
more
assaulted J.N. on
than one occasion—
you about this?
told
by properly
established
admissible evi
was
know,
May.
like,
you
by
any
A:
It was
It
The reference
to
was
dence.
Williams
previous
the last month of
assault was
unembell-
school.
brief and
result,
As a
we do not
ished.
determine
it,
Q:
you
she told
she
When
about
did
preserve
by
request
not
error
you
tell
when was
time it had
the last
prejudiced
a
hearing
a
Huizar to such
happened?
deprive
to
him
fair trial.
degree as
of a
day
A: The
before.
trial,
prong
he had a fair
Because
the second
complains
by failing
request
Huizar
to
a
Hui-
of the Strickland test
not satisfied.
hearing under article 38.072 of the Code of
attorney perhaps
requested
zar’s
should have
prior
Criminal Procedure
to the admission of
admissibility
hearing to
determine the
testimony,
the jury
permitted
was
to
testimony,
to do so
Williams’s
but failure
testimony
sexually
hear
that he
assault-
had
does not amount to ineffective assistance of
ed J.N. more than
des-
once. Article 38.072
under
Because the
counsel
Strickland.
out-cry
ignates
exception to
as an
representative
argu
Huizar’s
above
hearsay
rule. See Tex.Code CRiM. PROC.
regarding
attorney’s performance
his
ments
(Vernon Supp.1997) (setting
Ann. art 38.072
guilt-innocence phase
of his
requirements
admissibility
forth
of hear-
complaints
address his
about his
we next
victim).
say
statements
child
This
abuse
punish
attorney’s performance during the
however,
exception,
applies only to state-
phase of his trial.
ments that describe
offense
does not extend to extraneous conduct. See
Complaints
Huizar’s
About
Beckley
the Punishment Phase
App.
pet.).
Worth
To deter-
—Fort
admissibility
out-cry testimony,
mine
addressing
In
of his
provides
hearing
article
for a
outside
complains
attorney
Huizar
Thus,
presence
jury.
by
request-
request
that the
failed
be
hearing, Huizar
ing a
error.
waived
beyond
that the evidence
establish
that Huizar abused A.R.
reasonable doubt
attorney’s performance may
A.R.,
it could consider that evidence.
before
been deficient in
have
Huizar,
another cousin
testified
hearing prior
testimony,
thus
Williams’s
phase that
also sexu-
satisfying
prong
the first
Strickland
A.R.,
According
her.
Hui-
ally assaulted
test,
ignores testimony by
Huizar
the com-
time,
zar,
juvenile
began
who was
at the
J.N.,
plainant,
who
the same
testified to
eight
her when she
or nine
touching
was
thing
in more
terms.
touching
culminat-
years old and that
had
describing
leading
In
to her
events
when
fourteen or
ed in her assault
she was
assault, J.N. testified as follows:
fifteen.
that,
Q:
he did
know what
When
going
he
to do?
ex
not consider
While
offense
unless it believes
A: Yes
traneous
evidence
beyond a reasonable doubt that
the defen-
evidence
extraneous offenses and bad acts.
offense,
First,
dant committed the extraneous
ex-girlfriend
the State called an
3(a)
37.07, §
Tex.Code.Crim. Proc. Ann. testify about Huizar’s bad character. Ac-
(Vernon Supp.1998) (allowing “evidence of an
witness,
cording
damaged
to this
Huizar
extraneous crime or bad act that is shown
up
ear when she broke
him
and refused
a reasonable doubt
evidence to
Apparently,
to reconcile.
this incident re-
have been committed
the defendant” to be
sulted in a misdemeanor conviction for crimi-
in assessing punishment),
used
failure to re-
nal mischief. The woman testified further
quest such an instruction has not been held
that Huizar backed his car into her sister’s
Here,
as ineffective assistance of counsel.
car when the sister told Huizar that the ex-
attorney
called five character wit-
girlfriend would not talk with him. This
nesses
of Hui-
appears
incident
from the State’s exhibits to
comparison,
zar’s trial.
present-
the State
felony
have resulted in a
conviction for crimi-
ed evidence about Huizar’s convictions of a
nal mischief. According
girlfriend’s
felony and three misdemeanors. A narcotics
testimony,
physically,
Huizar never hurt her
officer testified as to Huizar’s bad character
but continued to harass her about a reconcili-
being peaceful
for not
abiding.
and law
An
cross-examination, however,
ation. On
Hui-
ex-girlfriend described Huizar’s violent be-
zar’s
established that Huizar had
separation,
havior after
including
their
repaired the woman’s ear
that he
had
*5
vandalizing of her
her sister’s
and
cars. Ad-
years.
bothered the woman for four
ditionally,
AR.’s
was uncontro-
Next, the State called a San Antonio Police
trial,
Throughout
verted.
attorney
Huizar’s
officer who
that
assigned
stated
he was
to
witnesses,
thoroughly
objec-
examined
raised
the narcotics division and that Huizar was
evidence,
admissibility
tions to the
of
and
peaceful
law-abiding
not a
and
citizen. The
argued on his client’s behalf. While his at-
officer did not elaborate about the basis of
torney
have
should
asked for a reasonable-
opinion,
testimony may
his
but
im-
have
doubt instruction on extraneous offenses dur-
plied
opinion
the
that he obtained his
punishment phase,
the
failure to ask for
as a result of
his work as narcotics officer.
an instruction does not amount to ineffective
evidence, however,
No
Huizar to
connected
authority requir-
assistance in the absence of
drugs.
Felton,
ing an instruction. See
815 S.W.2d at
(explaining
that court must look at both
officer,
Following
finger-
the narcotics
totality
representation
particular
of
cir-
print expert
finger-
that Huizar’s
verified
determining
cumstances of each case in
effec- prints on
fin-
State’s Exhibit 7 matched the
punishment
tiveness of counsel
(court
gerprints on State’s Exhibit 8
records
phase);
Yates v.
cf.
pertaining to the first criminal mischief con-
(Tex.App. Corpus
pet.
—
probation may
viction that showed Huizar’s
d) (determining
attorney’s
ref
failure to
driving
have been
for
without a driv-
revoked
license,
report,
er’s
and failure to
punishment phase did not constitute ineffec-
(a
fees),
pay
Exhibit 9
court document that
assistance). Consequently,
tive
we overrule
jail
in
spent
days
indicated Huizar
point
addressing
Huizar’s
of error
ineffective
(a
search),
resisting arrest or
Exhibit 10
assistance of counsel.
showing
spent
that Huizar
document
arrest),
days
jail
evading
in
Jury
Failure to Instruct
the
on the Burden
(court
Exhibit
documents
showed
During Punishment
of Proof
Camp
sent to Boot
for 30
been
complaint
Huizar’s
about
days). Although these exhibits are difficult
punishment phase of
was raised
decipher
very confusing, no one
and are
assistance,
the context of ineffective
our re-
significance
testified about the
of the docu-
punishment charge
view of the court’s
raises
ments.
questions
serious
about
as-
sentence
cousin,
jury. During
Finally,
sessed
called Huizar’s
the State
AR.,
that Huizar had also sex-
State introduced substantial
who testified
com-
they
ju- Because the
ually
her
were both
assaulted
when
any instruction on the rea-
pletely devoid of
testimony,
Following the cousin’s
veniles.
standard,
these remarks sum-
sonable-doubt
who
Huizar’s
called five witnesses
understanding about
jury’s
marize the
good
character.
about
testified
concerning the evidence of
proof
burden
of extrane-
All of the above was evidence
is,
offenses;
the State
the extraneous
proved beyond a
had to be
ous conduct which
prove the extraneous conduct.
not have to
did
prior to its consideration
reasonable doubt
consider-
unfairness and
Thus fundamental
jury, yet
punishment charge
the court’s
in this case
process involved
ations of due
not instruct
burden
jury must
require
whether the
us
address
Instead,
proof.
the court’s
diming
proof
on the burden
be instructed
range
punishment,
on the
punishment phase.1
right
testify,
not to
that the
defendant’s
introduced
could consider evidence
Jury
Burden
Instructing the
on the
phase of
that it must
guilt/innocence
During the Punishment
Proof
lot,
pa-
punishment by
and about
not assess
Phase
Exacerbating the absence of the
role law.
Appeals has
Court of Criminal
The Texas
charge,
proof
burden of
the court’s
howev-
“an
created
determined
Geesa
State
er,
by the
following
are the
remarks made
in-
systemic requirement
that an
absolute
punishment argument:
prosecutor
be submitted
struction on reasonable doubt
have a
in this
don’t
burden
where the burden of
We
all cases
stage.
guilt beyond
does not have a burden
proof requires
State
to find
Reyes
whatever number of
doubt.”
years
asking you
give.
(Tex.Crim.App.1996).
The im-
Fail-
we’re
discuss,
point
on the reasonable-
portant
is that
all
delib-
ure to instruct
erate,
error.
years
come to a
standard is automatic reversible
number
doubt
*6
Geesa,
guilVinno-
though, dealt with the
everyone feels comfortable with and
Id.
State,
phase of trial. See
v.
820
message.
know will send him a
cence
Geesa
appeals
unassigned
and revers
the
to ad
evidence on basis of
error
1. The discretion of
courts of
State,
298,
(Tex.
unassigned
ing);
dress
error is well-established in Tex
302
Romo v.
568 S.W.2d
jurisdiction
appellate
as law. “Once the
of an
(reviewing charge
Crim.App.1977)
error out of
invoked,
reviewing
State,
court is
exercise of its
func
justice);
interest for
Scott v.
534
Court’s
by
tions is limited
its own discretion or
711,
(1976) (considering sufficiency
S.W.2d
712
State,
valid restrictive statute.” Carter v.
656
regard
State’s burden of
of the evidence with
468,
1983).
(Tex.Crim.App.
S.W.2d
469
The
by
prosecution
was not barred
to show that
Appeals recognized
Court of Criminal
this discre
though that
relevant statute of limitations even
Whatley
recently May
tion as
as
1997. See
v.
State,
briefed). But see McClure v.
issue was not
State,
73,
(Tex.Crim.App.
76-77 n. 6
946 S.W.2d
1982)
667,
(op.
(Tex.Crim.App.
677
648 S.W.2d
869,
1997);
State,
also
v.
782 S.W.2d
Rezac
rehearing) (stating that Cotut of Criminal
State,
(Tex.Crim.App.1990); Perry v.
703
870
Appeals
reviewed erroneous ad
should not have
668,
1986).
(Tex.Crim.App.
The
unas
extraneous offense evidence as
mission of
examined unas
Court of Criminal
has
consti
signed
because such error did not
error
occasions,
many
signed
frequently in
error on
requiring review in the
tute fundamental error
involving jury charge
error
or the admission of
appellate
justice).
The new rules of
interest
State,
See, e.g., Boutwell v.
extraneous offenses.
Previously,
procedure
review.
the
also
164,
1985) (op.
(Tex.Crim.App.
719 S.W.2d
appellate
required
briefs to include
rules
old
rehearing) (reviewing admission of extrane
error,”
emphasize
"points
rules
but the new
unassigned
of fun
ous sex acts as
error because
74(d) (West
Compare
P.
Tex.R.App.
"issues."
due
damental unfairness and considerations of
(unannotated
1997)
reprint),
P.
Tex.R.App.
State,
process);
647 S.W.2d
Antunez
1997)
38.1(e) (West
(Special Supp.).
new
The
1983)
(considering unassigned
(Tex.Crim.App.
provide
statement of an issue
"[t]he
rules
that:
jury charge);
fundamental error in
Camera
covering every
point
as
subsid
will be treated
(ad
(Tex.Crim.App.1983)
fairly
iary question
included.”
Tex.R.App.
d
that is
jury charge
ressing
fundamental error in
was entitled
The issue of whether Huizar
P. 38.
unassigned
reversing);
Rocha v.
error
proof, even
on the burden of
(not
to an instruction
one,
fairly
request
though
is
included
he did not
revers
fundamental error in
(Counsel
argument
was ineffec
in his
that his
ing);
Gonzalez
1979)
an instruction.
(reviewing sufficiency
tive for
such
of the
(Tex.Crim.App.1991).
Al-
the reasonable-doubt standard.
inter-
We
though
punish-
pret
that,
Geesa did
address the
this decision to
during
mean
where
phase
ment
the Court of Criminal
punishment phase
the
the State introduces
Appeals recognized
importance
the
of the
evidence of extraneous offenses or bad acts
during
pun-
reasonable-doubt standard
the
purportedly
by
to have been committed
the
phase
in Mitchell v. State. See
defendant,
required
the court is
to instruct
Mitchell v.
on the burden of
in some
Crim.App.1996).
manner.
the Court of Criminal
Appeals permitted
giv-
that instruction to be
Mitchell,
explained
the Court
that the
by
en
means of a
use of
punish-
extraneous offenses
by finding
that the absence of a
analogous
guilt/inno-
is
to the
error,
key
instruction was not
phase,
eence
and thus
evidence
extraneous
point is that
case
some instruction was
offenses introduced
given.
The conclusion that the
must be
proved beyond
must be
a reasonable
proof during
instructed on the burden of
Mitchell,
doubt. See
In we are in Coble, phase. fluenced v. Coble State. the of long Court Criminal held that so Clearly, the drafters of the Code intended punishment charge properly as the court’s in requirement this result. This is reflected proof, sets forth the State’s burden of failure 3(b) provides section of article 37.07 which separate jury
to a include instruction caution that: ing the to consider those extrane proved beyond ous offenses a reasonable After the introduction of such evidence has concluded, give doubt is not error. Coble v. been ... the court shall See (Tex.Crim.App.1993). This such additional written instructions upon necessary proce- holding predicated be and the order of properly governing dure and the rules the conduct trials); error in criminal appli- (defining be are reversible of the trial shall the same as at 721 n. guilt Reyes on the issue of or innocence. v. cable (Tex.Crim.App.1996) (stating that Almanza (Ver- 3(b) 37.07, § art. PROC. Tex.Code CRim. Geesa). the rea- apply Because 1981) added). (emphasis Notably, this non instruction standard is both sonable-doubt immediately provision language follows the right,2 Rule federal constitutional state and the State evidence. permits to use such Appellate Rules Proce- 44.2 of the Texas of of this section is in the context When read mind, applies. foregoing With dure 3(a), lan- the “additional instructions” section analysis. proceed to harm we obviously refers guage to extraneous-offense If the State evidence. was restricted has error no court found reversible While phase to acts relevant to here, presented circumstances under the offense, instructions” “additional Appeals has never ad- of Criminal Court language Consequent- not be would needed. in- this issue. dressed 3(b) interpret previous- section ly, we and the has extraneous-offense struction on judge ly-discussed case law mean that trial in several considered absent cases been instruct the on the burden Court, general instruction on reason- the State whenever introduces evidence jury charge contained in the able doubt was sentencing acts extraneous bad ease, cases.3 In in each of those instruct, then, phase. Failure is error. not contain bur- charge did either a den-of-proof instruction or an instruction Analysis Harm evi- specifically addressed extraneous-offense Normally, is reviewed charge error dence. using the standard set out Almanza Legislature Almanza v. State. See The Texas has indicated (address punish- (op. reh’g) procedural governing rules in the governed issue of reversible harm once error of trial are to be shown). jury charge guilt/innocence But the Court same manner as Appeals has Al- PROC. Ann. phase. Criminal indicated that the See Tex.Code CRim. 3(b) (Vernon 1981) 37.07, (providing mcmmstandard is of ar limited violations gov- through procedure 36.14 rules ticles 36.18 of the Code “the order and the implicate [during erning Criminal Procedure that do not the conduct the trial shall as are rights. punishment phase] state or federal constitutional be the same guilt issue or inno- applicable Abdnor on the cence”). Crim.App.1994). impli Clearly, procedural rules re- Where error right, on the quire cates a state federal constitutional the court instruct the analysis n. applies. harmless-error See id. at standard Tex.R.App. 81(b)) (old 6; see also 44.2 Rule guilt/innocence P. trial. See Victor Mitchell, 358, 363-64, Winship, proof); burden of 2. See In re 397 U.S. sets out State’s 1072-73, (de- (reversing S.Ct. L.Ed.2d 368 trial court de- S.W.2d at 954 because termining that reasonable-doubt standard main- specifi- defendant’s for instruction nied *8 I, stature); constitutional art. tains evidence); Const, cally addressing extraneous-offense Tex. (providing deprived § person that no 19 will be that, Coble, long (holding at 208 as 871 S.W.2d law); liberty of life or without due course of charge properly sets forth State’s burden as Reyes, 721(stating 938 S.W.2d at Geesa cre- that separate jury proof, instruc- failure to include systemic jury requirement ated an absolute that cautioning jury extra- to consider those tion standard). on be instructed proved beyond a doubt neous offenses reasonable 217, State, error); Marquez v. S.W.2d 725 is not See, State, 72046, e.g., 1997 WL 3. Johnson No. (Tex.Crim.App.1987) (determining de- that 226 — *9, S.W.2d-,-- (Tex.Crim. at 209527 por- adequately protected by other fendant was 1997), App. Apr.30, (stating general instruc- that charge jury which on reason- tions of appellant’s encompassed tion State, standard); 714 Santana v. able-doubt evidence); on instruction extraneous-offense 1, (rejecting (Tex.Crim.App.1986) State, S.W.2d 10-12 642, (Tex.Crim. 944 654 Jones v. S.W.2d required appellant’s argument process that 1996) due (noting App. that to fail to it is not error on evi- proof separate instruction extraneous-offense addressing instruction burden of include dence). properly long doubt so on reasonable 710
Nebraska,
1, 5-7,
1239,
standard,
U.S.
S.Ct.
standard and that it used the
1243,
instruction on the pet. reasonable-doubt standard. no Yates v. instruction, 915, 1996, Without such an (Tex.App. Corpus 922-23 — ref'd) permitted then pet. to consider evidence without (assuming, deciding, without determining proved give whether the State had ap instruction was error and beyond standard); a reasonable plying “egregious doubt that Huizar had Almanza harm” also assaulted A.R.. Because we cannot con Escovedo v. 113-114 (Tex.App. clude under these circumstances that fail pet. [1st Dist.] — Houston refd) ure to instruct did not (holding refusing contribute trial court erred in sentence, we requested apply find the trial court defendant’s instruction and standard); committed reversible error to in Almanza “actual harm” struct on the reasonable-doubt stan Smith v. Tex.R.App. 44.2(a) (old
dard.
App.
pet.
ref'd)(per
P.
Rule
cu-
— Austin
81(b)) (directing appellate
deciding,
court to
riam)(assuming,
reverse
without
that failure
unless court
give
applying
determines
instruction was error and
standard);
a reasonable doubt that error
“egregious
did not con Almanza
harm”
cf.
punishment).
tribute to
Any
disposi
other
Cormier v.
require
tion would
us to
(Tex.App.
pet. h.)(applying
assume the
*9
— Austin
apply
knew it
“egregious
was to
the reasonable-doubt
harm”
to fail
Almanza
standard
opinion
joined by only
approving Judge Meyers' concurring
1. The Mitchell
two
instead
author,
Overstreet,
judges
Judge
Judge
J.,
J.,
and
opinion);
(Meyers,
joined by Maloney,
—its
Mitchell,
(White,
Baird. See
7H
light
backdrop, and in
of the
Against
in instruc
this
ure to
“reasonable
define
doubt”
expressed
of
of
in multitude of
tion on burden
for extraneous
a
considerations
during punishment
admitted
fense evidence
rejecting
presumed
of
the doctrine
opinions
State,
867, 874
phase); Splawn
949 S.W.2d
harm,
I
not reach out
consider
would
pet.)(although
(Tex.App.
this
give
trial
in-
court
— Dallas
whether
Reyes,”
applies
...
court
Alman-
“mindful of
issue
has not been briefed
struction —an
“egregious
za
harm” standard to
majority
join
in
argued
will I
—nor
doubt” in
define “reasonable
in
first
Texas to extend Geesa and
being the
in
of
reliance
burden
subject
unassigned
is not
“error”
hold
upon
and Matchett v.
Mitchell
44.2,
analysis
Rule
Tex.
a harm
under either
1996),
(Tex.Crim.App.
R.App. P.,
puts
To
so
or Almanza.
do
—
cert.denied,
-,
U.S.
117 S.Ct.
plurality opinion
in
court in conflict
(1997),
(Keller, joined by White, J., dissenting).