*1 actions, simply cused’s but is an accused’s
effort to doubt cast about whether com- alleged by contesting
mitted the act es- case, namely,
sential element of the State’s
that the present 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 as alibi defense Texas, recognized
should as it is cur-
rently recognized in the federal courts and
by many courts other states. The
Legislature, it disagrees, 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, I would vacate the the Court of and remand this
cause to that court in order to determine by
whether was harmed the denial alibi, for a instruction applicable analysis harm that set
forth Almanza v. (Tex.Crim.App.1984), and Texas Code of
Criminal Procedure Article 36.19. respectfully dissent. JONES, Appellant,
Ned Texas, Appellee. STATE
No. 101-98. Texas, Criminal
En Banc.
Oct. Sep- Legislature, 1. Overruled the 73rd effective amendment to Texas amended 3(a), Criminal Procedure Article 37.07 Section tember *2 255 This Appeals. of the First Court decision the granted review on Court petition: in its ground raised conducted Appeals has The First Court concerning issue legal analysis the faulty jury could believe a rational whether only misdemean- appellant committed theft and or misdemeanor from this robbery in with decisions conflict Court. the affirms Court
This Court the Appeals. 4, 1995, Yancey February Michelle On in Houston as for Fiesta Market worked Investigator. While observ- Loss Prevention monitors, security she ing store’s from the Beauty appellant the Health and in noticed pick up appellant Department. Aids She saw pocket. in put and them his several items stop- the store without Appellant then left registers for the items. pay the ping at assistance of two other Yancey secured the appellant confronted outside and Yancey her assis- store. and the exit him and escorted tants detained Newhouse, Cook, Stephen L. Hous- David They appel- informed into the store. back ton, for Pre- they taking him to the Loss lant Houston, Kugler, Atty., Eric Asst. Dist. store, appel- Once inside vention Office. Horn, Jeffrey Atty., L. Van Asst. State’s Yancey fight and lant her started Austin, Paul, Atty., Matthew Yancey Appellant punched in the assistants. face, breaking glasses. her He bit one of in the chest. the assistance assistants With constable, Yancey off-duty deputy and of an appellant and re- her subdued assistants ON STATE’S PETITION FOR OPINION him the Loss Prevention Office. moved DISCRETIONARY REVIEW deodorant, Gay They Ben recovered HOLLAND, Judge, opinion delivered the Appellant appellant’s pockets. Blistex BAIRD, in of the Court which removing paid items before had for these OVERSTREET, WOMACK, PRICE and detained them from Fiesta. Judges, joined. police Office until at the Loss Prevention trial, robbery Yancey depu- At convicted arrived. both Yancey. ty of Michelle constable testified Penal ANN. Tex. 30.02(a). Having § found both of the en- which occurred aggressor in altercation true, allegations to hancement in the Fiesta. appellant’s punishment at confine- assessed testify his took the stand Appellant Appellant years. appealed
ment for He that he left at trial. own defense Appeals. First conviction Court he intended the items and that the store with from Fiesta. He also denied ap- to steal The First reversed Court store. an assault When the case committed pellant’s conviction and remanded appellant, asked cross-examined a new trial. Jones 962 S.W.2d State if it (Tex.App. Dist.] [1st —Houston anything wrong “basically back didn’t do petitioned this Court to review The State February Appellant responded, 24th?” “Ab- appel- meanor theft. The First Court noted solutely right, sir.” When the State asked lant testified he commit an assault appellant if there had been an altercation in Fiesta that he “did self-defense”. The store, appellant explained that he “did of Appeals cited the State’s evidence emphasized, selfdefense.” *3 then appellant taking was seen some items however, that he did not assault paying the store without them. Fiesta. evidence, Based on this the First Court con- cluded the evidence raised the issue of mis- evidence, appellant After close of re- demeanor theft. The First Court found quested be instructed on the lesser appellant’s trial court erred when it denied included offenses of “Class assault and requested instruction on misdemeanor theft. B testimony Class theft” due to his Id. any robbery. did not commit trial court The request, ruling denied the the instructions The First Court handled the issue had not been raised the evidence. They misdemeanor appellant assault. noted appeal, appellant argued On the trial court any any denied intent to steal items from erred when it denied his for instruc- Fiesta. First Court also cited the tions on misdemeanor assault and misde- appellant punched State’s evidence that Yan- meanor theft. He contended that evidence cey during in the face his altercation with presented was at if guilty, trial that he was Fiesta’s Loss Prevention Officers. The First guilty only he was of the lesser included Court concluded the evidence at trial raised offenses. Appeals agreed The First Court of the issue of misdemeanor assault. also with found the it trial court erred when denied appellant’s requested
The First Court concluded that
instruction on
misde
misde-
meanor
theft
misdemeanor assault were meanor assault.
Id.
proof necessary
“included within the
es
petition
discretionary review,
In its
charged
robbery.”
tablish the
offense of
argues
State
the Court of
conducted
State,
Citing
Jones
plained
if
appel
there is no evidence
analysis.”
The State ac
lant committed
the lesser
of
included
plucking appellant’s
cused
First Court
fenses,
presented
no evidence
testimony apart
to conclude there was evi
presented
or
evidence that he did not commit
guilty,
dence to show if
he was
appellant would not
entitled
be
of the
one
two lesser included
to the instruction on the lesser included of
offenses.
fense. The First Court
then examined
whether “there was some evidence that
supports
argument
its
with
State
jury rationally
would
to find that
First,
examples.
pointed
out the
committed the
but not
“plucked”
First
out
Court
testi-
Anything
the assault.
more than
scintilla mony
anyone along
that he did not assault
of evidence
is sufficient
entitle a defendant
with his
that he “did self-defense”
on a lesser included offense.”
conjunction
and examined them in
with the
Jones,
Initially, paying the First Court turned to the from the Fiesta without for them. this, issue of the lesser included offense of misde- From concluded that the First Court evidence, testimony. there guilty only Id. Whether appellant could have been found Second, the First looked within or without the defendant’s of theft. Court in- offense con- raised the lesser included conjunction tent to steal instruction on of whether an trols the issue of the assault and concluded given. included offense should the lesser guilty only have been found could of assault. the evi It not matter whether State or the was admitted dence analysis complains the
The State not matter the evidence defense. It does misrepresented First de- weak, unimpeached contra strong by taking of context. was parts fense out claims Rousseau v. State dicted. *4 State, presented that he did not v. (Tex.Crim.App.1993); whole the defense and Bell 672 theft, robbery, wrong not (Tex.Crim.App.1985). 442 693 S.W.2d —not argues appel- not assault. State selectively and always to of fact is free The trier entirety, taken in its lant’s testimony proffered part all believe guilty guilty, if is not indicate is he Bignall, 887 introduced either side. and Instead, only of the lesser included offenses. 24; therein. So S.W.2d at and cases cited testimony appellant’s on the whole indicates long which is “di is some evidence as there way, guilty all. In this he at rectly germane” to a lesser included offense comply argues the First failed to consider, an in then for the factfinder Bignall decision v. State. Court’s included offense struction on the lesser Bignall, id; “if a Bignall, In we concluded defendant Skinner v. and warranted. presents he committed State, (Tex.Crim.App. either evidence that 956 543 S.W.2d evidence, presents no offense or no and there is no evidence otherwise that he offense, a lesser included this, testi line with when is not charge a on a lesser included offense Fiesta, theft at fied that he did not
required.” Bignall, 887 at 22. The S.W.2d testimony jury free to believe the was not have argues the First Court should State anything and did not intend to steal parts appellant’s testimony out of plucked property which he left store with never the context of his defense and combined paid for. A “lesser included offense had not parts proof them with selected of the State’s affirmatively may if either be raised evidence separate to con- elements of establishing negates an element refutes or lesser included clude the evidence raised the State, greater v. 915 offense.” Schweinle State is not a offenses. The contends this Here, (Tex.Crim.App.1996). 19 S.W.2d proved there was which case where evidence that he did not steal guilty, guilty only of appellant, if negated the theft element intend to steal theft. lesser included offenses of assault or robbery charge. jury If believed that he did not steal argu disagree with the State’s We he and believed the State’s analyzes issue of less ment. This Court rationally Yancey, could Michelle struck determining included offenses in terms of er appellant committed assault conclude that record whether there appellant denied and not theft. When if to indicate source it was committed the even guilty only of includ guilty, he was the lesser intent, denying all criminal the context of scintilla “Anything more than a ed offense. jury should have instructed trial court sufficient to entitle defendant of evidence is We offense of assault. the lesser included Bignall, at charge.” 887 S.W.2d lesser court erred when it denied conclude the trial 23; If there is cited therein. eases on the for instructions a defendant’s evidence within as of misdemeanor included offense lesser it raises the lesser included 22-24, State, at 887 S.W.2d fit sault. does not dispositive that this evidence State, at 19. larger and Schweinle v. theme of that defendant’s in with the theory applied majority says The same can be was entitled to appellant’s testimony instruction on the lesser included offenses in Fiesta. admitted theft and assault. I dissent. that he “did self-defense”. The was free lesser included offense is re- testimony by to believe this appellant, and quired, upon request, if disbelieve the rest of what he said. As with conditions met: are the instruction on the lesser included offense 1. The lesser offense is included within assault, of misdemeanor this evidence would proof necessary prove have entitled in requested offense; charged struction on the lesser included offense of misdemeanor theft. The trial court erred 2. Some evidence exists in the record that appellant’s request when for that rationally would Bignall instruction. S.W.2d that, guilty, the defendant is 22-24, Schweinle 915 S.W.2d at only of the lesser charge. Rousseau v. have State would us focus sole Crim.App.1993). .Only the second condition ly “blanket” denial of criminal *5 disputed is in this case. culpability any robbery. in of element law, including This misconstrues the case As to the lesser included offense neglects on this issue. It says jury permitted the fact that a or believe assault, he not did but acted in self- any part disbelieve a witness’ defense, was permit evidence that would including disregards a defendant. It the fact appellant guilty only rational to find that a lesser included can be raised theft. As to the lesser included offense by any any long evidence from source as a so assault, majority says appellant’s testi- rational trier of fact could conclude that mony any- that he did intend to steal defendant is together thing, store em- that lesser included offense. assault, ployees committed ground The State’s overruled. was that would a rational review is appellant guilty This Court affirms the of the First assault. wrong on Appeals. are both counts. J., MEYERS, opinion, a dissenting filed in A. The lesser included offense of theft McCORMICK, P.J., KELLER and Integral with a claim self-defense is an MANSFIELD, JJ., joined. Appel- admission of the use of some force.1 MEYERS, Judge, dissenting. using against anyone. lant denied Ap- force pellant also testified his arms were held be- Appellant robbery. was convicted of At hind his back. He further stated he had no trial, having he denied intent to He steal. idea how some received denied that he was outside store when injuries. Following portions their of ap- are apprehended. past walking He denied testimony.. pellant’s registers leaving cash the store with property. ag- stolen He denied Q: you examination]: on direct Did [State gressor in involving an altercation himself Yancey? hit Ms. security personnel. and store He denied as- ma'am, [Appellant]: A: No didn’t. anyone.
saulting hitting biting or He denied Q: you any Did her see scratches on face? hurting any personnel. security store He No, anything wrong. testified he A: ma'am. protect against Self-defense described in the Penal Code as: himself other's use at- against person justified using tempted "a in force use an- of unlawful force.” Tex. Penal (a). degree reasonably § Appellant other when and to the 9.31 does not claim to have used immediately necessary against anyone. believes the force is force my my back.
A: I had arms behind My my back and A: arm was behind further Appellant did elaborate in the jacked up. guys Two other store Appellant’s claim “self defense.” claim of up hitting ran started me. self-defense,” logically impos- “did testimony that his arms of his up sible view Q: many employees ganged How majority’s his back. were held behind you at that time? jury is one that would vision of a rational A: Four. testimony that have disbelieve you Q: Did feel threatened? against he did not use force Yes, A: ma'am. testimony that he had disbelieve you Q: Did intend to steal items? back, but believe held behind his arms No, ma'am, I A: didn’t. he “did self-de- Q: you Did commit an assault no other evi- fense” there was even ap- store? claim and believe supporting dence legally adequate pellant’s “self-defense” No, I A: didn’t. proven justify you Q: you acting like Did feel jury. my view of a rational This not self-defense? Yes, A: I did. of assault B. lesser included offense Q: you you Did feel like had committed a robbery? he did not intend testified No, ma'am, anything. A: I didn’t. He that at the time steal claims still inside the apprehended,
he was he was did not do store. He testified he *6 There wrong, did not commit an offense. Q: [Appellant’s counsel on cross-examina- did no evidence otherwise your testimony you ... tion]: it’s circumstances, a theft. In these not commit basically wrong back on didn’t charge of as- the lesser included offense on 24th, February correct? sault is not warranted: Absolutely right, A: sir. test, Aguilar The stated correct as Yancey testify ...Q: heard Ms. You (Tex.Crim.App. S.W.2d 566 happened, you? about what didn’t 1985), is as follows: “If a defendant either Yes, Yancey some she A: tells lies. did. no presents he committed ...Q: past You never the check- walked evidence, and there presents no out areas? showing that he otherwise no evidence IA: never walked the checkout areas. included lesser of Q: And in the course of this there was an on a lesser included offense you at least and those altercation between required.” is not employees who worked there? 21, 24 A: was an altercation. There Apart from tes Crim.App.1994). Q: ganged up And these all timony there you? otherwise no evidence Yes, A: and I did self-defense. The of assault. Q: you why And realize that one of those em- rule of law does explain above arm? ployees hurt their apply here. arm, no
A: How hurt his I didn’t have maintaining recognize I the value While idea. liberally including lesser policy in favor Yancey Q: you And heard what Ms. said instructions, such instruc- happened to her? by any stretch. here tion not warranted glasses. A: Yes. had broken She deny- appropriately in The court acted trial your ing instructions. Q: fist? You strike her with didn’t Appeals should be reversed. dis- I. sent. During argument, “[pjrosecu- final slapped tor the defendant on the back with McCORMICK, P.J., MANSFIELD open forcefully.” hand Statement KELLER, JJ., join. (SOF)of 25, 1997, April pg. Facts 73. striking sound back enough throughout loud to be heard 18, 1997, April pg. courtroom. SOF of slap The sound was described as mak- “jerked” ing pop” “loud appellant. CROW, Appellant, John Bradford April pp. SOF 74-75. After deliberations, began of Texas. STATE prosecu- for a moved mistrial based physical during tor’s assault of No. 981-98. argument. judge granted The trial the mo- Texas, Court of Criminal tion. En Banc. Subsequently, appellant, relying on Feder- precedent, application al and State filed an Dec. seeking pretrial corpus habeas relief con- Schneider, Wice, Stanley G. Brian Hous- tending jeopardy retrial was barred. At the ton, Appellant. hearing, appellant prosecutor asked the Houston, Alan Curry, Atty., Asst. Dist. prosecutor’s questions to determine the state Paul, Austin, Atty., Matthew State’s of mind at the assaulted time he clearly questions Even these prosecu-
relevant to the issue of whether the intentionally recklessly, tor acted ha- judge prohibited questioning line of beas by sustaining objections hearing, relevance.1 After habeas judge denied relief. The Court of OPINION DISSENTING TO REFUSAL Crow v. affirmed. S.W.2d 480 *7 OF APPELLANT’S PETITION FOR (Tex.App. Ap- Dist.] [1st —Houston DISCRETIONARY REVIEW pellant petitioned this Court for to review BAIRD, Judge, dissenting. determine the correctness of that decision.2 jeopardy Resolution of double reasons, For believe the prosecutor claim turns on in- whether the refusing petition. errs in the instant goad requesting tended to into II. disregard a mistrial or acted reckless First, to whether his conduct in a would result we this should handle ease short bright mistrial. rule order. We should establish line My describing prosecutor’s record review of the revealed at least eleven the trial court questions conduct; instances where asked de- signed to show the mistrial was a result of either 2) failing Appeals The Court erred in prosecu- intentional or reckless conduct a de re conduct novo review law as tor, judge precluded ques- and the habeas these quired Guzman 25, April tions from asked. See SOF of 1997); (Tex.Cr.App. 70, 80-82, pp. 89-94. made a 3) failing Appeals The Court of erred in Exceptions April subject. Bill SOF of properly jeopardy apply the double standard things, pp. Among 1997 at 123-124. other Oregon Kennedy, review set forth in 456 U.S. proves prosecutor previously physi- the Bill (1982); 102 S.Ct. L.Ed.2d 416 cally assaulted another defendant. and, 4) failing The Court Specifically, petition erred appellant's presented four grounds apply properly jeopardy for review: standard of double 1)The failing set forth in review Bauder v. erred in unobjected findings (Tex.Cr.App.1996). address the fact made