*1 defective, way liable for breach the seller designed and manufactured such a not implied warranty, but this is such person disengage the that a must retractors of Here, merely fails fulfill conveniently product to enter exit the vehicle ease. consumer be- system precise expectations is therefore efficiently, and product Plaintiffs cumbersome passive. nor more neither automatic cause product per- their A which anticipated. the value of claim that as result than use adequately as- ordinary been diminished. Plaintiffs function vehicles has its forms al- damage warranty of implied sert no other claims. Plaintiffs mer- not breach action, including leged several causes not func- chantability merely because it does warranty like, implied merchanta- breach of the buyer would tion as well as bility express warranties. and breach nor plaintiffs as it could. Neither as well any authority support appeals cite court certified, Mo- a class Before General warranty, and we are of a claim for breach judgment all summary tors for moved conclude as matter aware none. We claims, grant- plaintiffs’ and the district court plaintiffs to recover law that are entitled af- appeals ed the motion. The court of warranty. implied for breach firmed claims but some reversed others, warranty including claims. complains also Motors General Only appeals Motors S.W.2d 774. General its appeals by reversing sum- erred Court, complaints only go this and its judgment on claims for mary Brewer’s warranty claims. However, express warranties. breach this as a Motors did assert General implied warranty claim is Plaintiffs’ judgment, summary for ground for its motion based on section 2.314 of the Uniform Com appeal. it on therefore do not reach and we Code, applied mercial which as to this provides impliedly goods that a seller of war appeals have The court of should affirmed they ordinary rants that “are fit for the summary judgment plaintiffs’ implied purposes goods which used”. for such are we warranty Accordingly, grant claims. 2.314(b)(3). § For Bus. & Com.Code Tex application writ Motors’ for error General goods warranty, they to breach must be and, modify hearing argument, oral without is, they must be “unfit for the defective—that judgment to affirm appeals’ the court of sum- ordinary purposes they for which are used implied mary judgment plaintiffs’ warran- something necessaiy lack of because of a Tex.R.App. P. ty claims. 59.1 Plas-Tex, Inc. v. adequacy.” U.S. Steel (Tex.1989). Corp., 772 S.W.2d 443-444 Mo
Plaintiffs do not contend that General restrain; system
tors’ fails to rath restraint
er, they contend: question purports to be an seatbelt system, would
automatic restraint take action require user to However, Phillip Anthony POSEY, Appellant, engage system. order to virtually impossible to enter user en- exit the vehicle with seatbelt of Texas. The STATE gaged. user to This forces the detach After exiting when the vehicle. seatbelt No. 427-96. safe- entering, the user must re-attaeh the Texas, Appeals Criminal it, making ty in order to utilize thus belt En Banc. system automatic restraint so-called system. into manual March correct, as we Assuming these assertions are must, they do not amount to claim that ordinary system is
restraint unfit are
purposes goods for which it is used. If
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW McCORMICK, Presiding Judge, delivered opinion joined by of the Court MANSFIELD, KELLER, PRICE and HOLLAND, Judges. appellant
A convicted of unauthorized V.T.C.A., use of a motor vehicle. See Penal Code, finding Section 31.07. After the indict- “true,” paragraphs ment’s two enhancement appellant the trial court thirty- sentenced (35) years’ five confinement.
The State’s evidence shows Wanda Thom- Jaguar usually owned black 1988 friend, was driven her “Chuck” Williams. 4, 1993, On November parked Williams Jaguar Hobby Airport at in Houston from where caught flight Corpus Williams Jaguar Christi. When Williams left the locked, airport, the car was undamaged good and in system condition with its alarm spare key activated. A Jaguar was in the console. 7, 1993, Deputy
On November Ervin saw appellant driving Jaguar. stopped Ervin appellant registration because the sticker on Jaguar expired. key A was in the Jaguar’s ignition. Appellant pro- could not proof duce driver’s license or of insurance. After Jaguar’s registra- Ervin checked the Thomas, tion belonged and found out it appellant told Ervin that someone he had “Chuck,” just met named whose name last know, gave and address did not appellant permission Jaguar. to drive the glove compartment Inside the Jaguar repair were some bills with the name “Chuck” written on them. Ervin noticed the panel inside door on the driver’s side of the Jaguar pulled back and the wires to its system ap- alarm were cut. Ervin arrested pellant. they Thomas and Williams testified gave appellant permission never to drive the Jaguar. Faulkner, Houston, appellant.
Velda R. Appellant testify did at trial. Howev- er, presented testimony Pomerantz, two wit- Atty., Sandra J. Asst. Dist. Larry Posey, Harris and Kenneth Houston, Paul, Atty., Matthew State’s Aus- nesses — appellant’s tin, who was cousin. These witnesses for State. they testified saw a man named Charles give appellant keys Jaguar Yates to they story told pellant’s and the of these witnesses 1993.1 Neither November unworthy of belief. Williams were claimed “Chuck” witnesses person. Yates Both Charles were the same is the talked on voir dire when “We about fel- appellant’s witnesses were convicted somebody you your car to time loaned last record, can from the ons. As far as we tell you their last name? When didn’t know *3 located, no one Yates never and Charles was car from you time borrowed the last appellant’s Yates testified at named Charles their last name? somebody you know didn’t permission appellant he gave trial Jaguar. drive addition, cross-examination, Harris car, black ’88 driving a “[Appellant] is him lived with
testified Charles Yates
met,
just
supposedly,
he
Jag
guy
from a
early
1993 even
about a week
November
cut,
back and the alarm
with the door bent
only
he
met
about week
though
had
Yates
know
last name
he didn’t
from friend
prior
this
Harris also testi-
or two
time.
only
couple
known for a
of and had
keys
give appellant
fied he saw Yates
days.”
Har-
Jaguar
twenty
about
minutes after
appellant
ris
to Yates. Harris
introduced
jury
application paragraph of
The
also
not know what Yates
testified he did
did
appel-
jury
instructed the
convict
living
for a
and he did not know where Yates
Jaguar
appellant operated the
lant if it found
was at the time of trial.
consent
Thomas.
without
the effective
appellant.
jury
convicted
cross-examination, appellant’s
On
other
witness,
Posey,
his cousin
he did not
testified
Appeals,
appeal to the Court of
On direct
Yates;
personally
Charles
he knew “of
know
time that
appellant complained for the first
Posey
him.”
also testified he was
reversibly
by not
erred
trial
it,
Jaguar
stopped
appellant
Ervin
when
instructing
the defense
damage
Jaguar
and he observed
V.T.C.A.,
Code,
of fact. See
Penal
mistake
including anything
interpreted
that could be
8.02(a).2
undisputed
It
that at
Section
damage
consistent with
auto theft
request
this instruc-
appellant
did
contrary to
which was
what Ervin observed
tion
he
to the absence of
and
did
Posey
stopped
Jaguar.
after he
also
jury charge.
in the
instruction
thought
testified the
crossed mind that it
opinion in Almanza
Applying this Court’s
appellant
was a “bit unusual” for
to be driv-
State,
167,160-74 (Tex.Cr.App.
v.
686 S.W.2d
ing Jaguar.
1984)
Appeals
(op.
reh’g),
Court of
“Q. You didn’t think it was the least bit
appellant’s
remanded
conviction and
reversed
[appellant]
driving a
unusual that
would be
upon determining
new trial
the cause for a
Jaguar?”
1988black
by the
appellant
“egregiously harmed”
Well,
my
“A.
it ran across mind.”
a mistake of fact instruction
absence of
Posey
916 S.W.2d
arguments,
jury charge.
During closing
appellant ar-
See
1996) (not
(Tex.App.
gued
[1st Disk]
him
acquit
should
because
- Houston
opinion in
Citing
Court’s
appellant
yet reported).
permission
had
to drive
car
(Tex.
State, 830
appellant
Yasquez v.
thought
from Charles Yates whom
Appeals conclud
possession
pros- Cr.Apр.1992),
the Court of
rightful
of the car.
“egregiously harmed” be
among
ap-
ed
argued,
things,
ecutor
[appellant],
example, appellant’s
Me
we left.”
cousin
"A.
For
testified:
Now,
Okay.
you
"Q.
saw
Yates on
when
Mr.
held
cases like this that
Court has
This
November, 1993,
the 7th of
what was
do-
a defen-
defense is raised when
mistake
fact
you
ing? What
see him do?"
did
presents
use
the car was
evidence his
dant
[appellant]
him
“A. I saw him—after
acquaintance
ap-
permission
who
about,
of an
with the
they
conversating,
conversate
whatever
parently was
to consent to
use of
authorized
keys
[appellant]
him hand back
I see
McQueen
781 S.W.2d
See
the vehicle.
we left.”
(Tex.Cr.App.1989).
"Q.
602-03
You and who left?”
precluded
cause the
from consider
error”
See Al-
jury charges.
reversible
ing appellant’s only defense.3
manza,
separately containing the “harm”
question
standards
boils down to
for both
ordinary
imposes
“fundamental error and
Article
whether
36.14
a
on trial
merely
alleged
present
theory
3.This
restates
"error” that
it
able? Did
which reason-
entertain,
Assuming
supported
occurred in this
applicability
case.
able mind could
or was it
Almanza,
by
testimony
remotely
both
such
“harm” standаrds set out
calculated
in
destroy
require
jury charge
State's
as well as the
"error” that
Almanza
phase
degree
as whole? Was the
assayed
actual
case
light
of harm "must be
in
simply
an addition
as made
charge,
of the entire
dence,
state
the evi-
therewith,
State and consistent
or was it in
argument
of counsel and
other
theory?
direct conflict with the State’s
These
relevant
revealed
information
the record of
important
are all
matters to be
in
considered
Almanza,
the trial as a whole.”
686 S.W.2d at
upon
passing
[degree
in the
harm]
omis-
appellate
171. An
court should consider the
Omitted).
error_(Footnote
sion or
Al-
quality
weight
and
of the evidence in cases to
manza,
Therefore,
general
consistent with
jury
particular
rules
on a
defensive issue are dif-
procedural default as well as
policies
questions. Though
ferent
the evidence
expressed in
portions of
statutory
issue,
other
might raise a defensive
it does not
provisions
in
necessarily
referenced
Article
we
follow that
trial
a
court has a
a
to “applicable
decide defensive issue is
to
on
instruct the
purposes
the case” for
of Article 36.14 unless
request
issue when the
defendant
timely
requests
defendant
an
issue
such
instruction.
words,
unrequested
simply
objection
In other
is an
making
timely
defensive
in the trial
by
"applicable
circumstances,
issue
is raised
to
evidence
court.
he
Under these
should not
the case?”
complain
be heard to
about
absence
jury charge.
mistake of fact
instruction
example,
appellant timely
11. For
in
case had
objected to the absence of thе mistake of fact
course,
applicable
12.Of
should be
to
jury charge,
instruction in the
the trial court
omission in
of a defensive
opportunity
have
would
had an
remove
timely requests
issue which a defendant
appellant’s
by
submitting
basis
Almanza,
which is
raised
evidence. See
unnecessary
making
issue
thus
circumstances,
Almanza’s framework cases to charge jury. In read to the before applies.14 which Almanza present case, appellant did not judgment We reverse Court of any way, much less the manner Appeals affirm judg- the trial court’s However, prescribed by Article 36.14. as ment. Article 36.14 has not amended been changed inquiry since our cannot end MANSFIELD, Judge, concurring. there, given our case law since 1981. (Tex.Crim. Almanza v. The issue before us is whether the trial App.1984), this Court established a frame- duty incorрorate, has an affirmative errors, work which claimed whether or part jury, of its an instruc- preserved, were to be theory conceivably tion as to a defensive analyzed appeal. raised evidence such where instruc- requested by tion was not the defendant nor Almanza, essentially, eliminates the neces- any objection was there by the defendant to sity proper preservation claimed I given. Because believe that error, whether it be an error of omis- finding place an such a would unreason- commission, sion or as mandated Article Texas, able burden on the trial courts I Instead, 36.14. a claimed error join opinion Presiding Judge. I analyzed on whether the error is based however, separately, my opinion write it is “ordinary” “fundamental” error or error. If appellant may claim well have a of inef- preserved properly error has been fective assistance of counsel. objection, long reversal will result as as error is not harmless. Texas Code Criminal Procedure Article provides, part: 36.14 in relevant hand, proper On the other if no *8 jury, Before is to the was said read made at and the accused must ‘fundamental,’ defendant or his counsel shall have a rea- maintain that the error was if only sonable to examine same and he will a reversal the error is time obtain objections present egregious shall his thereto in writ- so harm that created such distinctly impartial ing, specifying ground he ‘has had a fair trial’— each of not objection. objections may embody ‘egregious short harm.’ Said (сourt give mentioning It also worth the author is not bound in instruc- is party and Judge pointed tions not the mere Honorable asked Almanza—the Clinton— "error”). give statutory "omission” instructions "precur- out in case that the another interpreted Moreover, opinion sors” to 36.19 had as not Article been author this was on requiring give a trial court “to instructions not decided and the Court when was party by” primarily asked and a trial failure to author’s recollection is that Almanza away do so "error.” See v. is not Walker was intended to do with "automatic 247, (Tex.Cr.App.1991) S.W.2d (Clinton, J., 249-50 fh. 2 reversal” rule for "error.” It was cert, denied, impose concurring), trial courts 503 U.S. not intended to on 939, (1992) juty defensive issues. 112 S.Ct. 117 L.Ed.2d instruct on Therefore, given jury. degree actually
In the actual both situations pre failure to light appeal of the entire due his assayed prevail harm must be on evidence, error, in- must charge, appellant of the show alleged the state serve weight ap issues and cluding egregious. contested court the error was evidence, argument coun- probative of an instruction found the absence peals information re- other relevant so sel and an error mistake of fact was the defense of of the trial as vealed the record fair appellant a egregious that it denied the whole. Posey trial. 1996). (Tex.App. Dist.] [1st
Almanza, supra, at 171.
— Houston
However,
is at least somewhat
agree
lack of an instruction
While I
provides
consistent
Article
of fact
defense of mistake
denied
any requirement of Articles 36.14
that where
case,
in this
the error
appellаnt a fair trial
through
disregarded,
has
36.18
been
proper-
court to
of failure of the trial
not one
judgment shall not
“unless the
be reversed
Bather,
jury.
appellant was
ly
instruct
calcu-
appearing from
record was
error
right
to a fair trial due
ineffec-
denied
defendant,
injure
rights
lated to
failing
tive
of counsel
assistance
appears
unless it
from the record that
instruction.
such an
impartial
a fair
defendant has
Washington,
In
466 U.S.
Strickland
effectively a
my opinion,
In
this is
trial.”
2052, 2064-68,
687-694,
80 L.Ed.2d
104 S.Ct.
(or egregious) er-
of “fundamental
definition
(1984),
Supreme Court established
to harm the
ror”: an error either calculated
two-part
determining
test for
whether
rights or
defendant’s
an error that denies
assistance
defendant received ineffective
Yet,
right to a fair trial.
the last
defendant’s
counsel.
provides
objec-
sentence of Article 36.19
tions to the
and to
refusal
(1)
performance so deficient
Was counsel’s
charges
time of
special
shall be made
competently
functioning
that he was
trial, essentially mirroring the
mandate
satisfy
of the
enough
requirements
errors,
Article 36.14 that
whether
?
Sixth Amendment
omission,
they
errors of
commission
(2)
performance
Did counsel’s deficient
properly preserved to
must be
be raised
defendant, depriving him of
fair
prejudice
appeal.
is a reason-
trial to such an extent that there
Almanza, my opinion,
resolution
error,
that,
probability
but for counsel’s
able
Article
apparent
conflict contained within
have
proceedings
would
result
apparent
well
conflict between
36.19 as
been different?
Article
all
last
36.14 and
but the
sentence
must, however, pre-
reviewing
Id. A
whole, jury
as a
Article 36.19. When viewed
reasonably
effective.
sume that counsel
it be one of commission
error whether
694,104
at 2068.
Id. at
S.Ct.
omission,
or one of
will result
reversal
preserved in
with Arti-
where not
accordance
opinion of
appeals cites an
court of
only
cles
and 36.19
where the error
36.14
Vasquez
instructive.
In
which is
injure
or resulted
calculated
defendant
(Tex.Crim.App.
S.W.2d 948
trial,
fair
right
in denial of defendant’s
re
1992),
failure to
we held trial counsel’s
or,
words,
was a fundamental
defense of neces
quest an instruction
egregious error.1
sity
ineffective assistance
coun
constituted
“precluded from
sel because
present
avers the
*9
defense,” ren
appellant’s
giving effect to the
failing to
by
erred
omission—in
“foregone
dering his
conclusion.”
conviction
jury defense
instruct the
the
where, as
Vasquez,
951. A trial
supra, at
request
Appellant
of fact.
never
of mistake
here,
effectively precluded from
jury is
the
as to the
of mistake
ed an instruction
defense
statutory
considering
showing a
de
fact,
evidence
nor
of
did he
Legislature
with the intent
Legislature
acted to overrule
inconsistent
1. I
the
has not
note
Almanza;
underlying
36.14 and 36.19.
agree
is
Articles
I
that
thus
do
exists,
fense like mistake of
inherently
fact
is
er
the vehicle was a
Corpus
female from
appeals
unfair. The court of
carefully ana Christi,
appellant
he asked the
it
whose car
lyzed the record and found the evidence
appellant
was.
gotten
said that he had
raised the
defense mistake of fact. This
“Chuck,”
frоm
neighbor-
who
lived
his
finding
given
should be
due deference. Guz
hood and whose last name and
he
address
(Tex.Crim.App.
man v.
party requested such or Crim- meaning 36.19 of the Code of of Article its omission. Prоcedure, which reads: inal of the de- parties argued the merits The appears it the record Whenever culpable mental fense case in terms appeal any re- action criminal knowledge. appellant’s attorney state of The 36.15, 36.14, of Articles 36.17 quirement acquit- should be argued that he judg- disregarded, the has been and 36.18 he know that he was ted because did not the error ment not be reversed unless shall con- without the owner’s driving vehicle calculated appearing from the record was sent: defendant, or unless injure rights juiy charge] he must Then it states [the that the defen- appears from the record it, intentionally knowingly take exer- and impartial fair trial. has not had a and dant possession cise of the ear without the effec- objections to the All It tive consent of the owner. was his special charges at refusal of shall be made impression that the owner was Mr. Yates of trial. the time keys. gave him all he who That’s did possession keys obtained was statute embodies two We concluded that the the car. That is reasonable doubt drive for “er- The standard standards of review. enough. appearing from the record [that] ror rights of injure defendant” calculated turned out later that it didn’t —that It overruling objections to applies to errors owner, person rightful but Mr. the trial which made in were Posey knowledge had time refusing, Article court under possession he car he which had to, requested special failing respond driving. He didn’t think that was the case. the trial charges presented were rightful thought Mr. Yates was He Article 36.15. The standard court under posses- he owner the car. Since was appears “it from the record reversal when it, it, keys, driving sion of he was had fair and has not the defendant him, keys for him gave the to drive. applies to that were impartial trial” errors simple all he That’s as as that. That’s did. court’s attention brought to the trial is request. The latter standard prosecutor replied there was no appellant independent [which] basis reversal that the knew the “[a]n reasonable doubt error, timely stolen, though if the the defense evidence arises car was because to, egregious creates such objected so the defini- was incredible. She read ‘fair deprives the accused of a “knowledge” harm that tion ” 172. This latter impartial Id. at guilty. trial.’ found respect knowledge, with a result of person knowingly, knowledge, or with acts or with 1. "A conduct when he aware that his conduct respect or to nature of his conduct reasonably certain cause the result.” surrounding his when he circumstances conduct reversed the order or that the is aware of the nature of his conduct knowingly, in the Penal Code. person A these sentences exist. acts circumstances *11 standard in Article says that, 36.19 is “the basic test for errors of commission or fundamental error.” Ibid. omission, “in necessary no event shall it be present for the defendant or his counsel to argues The State that this basic test does special requested charges preserve apply not to the omission of a defensive assigned charge, maintain error as instruction from charge rea- three provided.” herein (1) sons: There no error because it no contains incorrect instructions. The Court has created another version of (2) There cannot in omitting be error law thus: argument reasoning this from a charge when no instruction was re- is based on Article only 36.19. Article 36.19 (3) quested. judge A trial should not decide applies when the requirements of Article which defensive issues should be 36.14 “disregarded.” have been Article 36.14 charged because such decisions are matters only applies party objects; when a when a strategy determined party counsel. object, does not Article 36.14 the re- arguments These are inconsistent with the quirements of Article 36.14 have not been regulate statutes disregarded. party Therefore when court, incorporated which are in Article 36.19 to the omission aof defensive by its terms. charge, there no is error and Article 36.19 Almanza do not See ante apply. at 60- argument The State’s first is that a charge is free error no matter what it omits, long so contains no errors argument proves On the one hand this too disregards commission. This the statutes much. party If there is error when a and our decisions. Article 36.14 of the object, Code does not there cannot be fundamental of Criminal Procedure treats errors of com- This makes Al- charge. errors in the mission equal footing. and omission on an manza only unnecessary. wrong, but Of objectionable statute makes a if course, it also question, leaves us with the it contains “errors claimed to why have been com- are there two of harm in standards charge, mitted well аs errors if Article 36.19 there are not two classes of claimed to have been committed that, omissions jury charge? error in the It ironic failing therefrom or upon issues proclaiming while legislative to vindicate the arising from the facts.” 36.14, intent of Article the Court frustrates legislative intent effectively repealing part The opinion also gave equal of Article 36.19. treatment to fundamental errors of commis- sion specifically and omission. It commend- On the other argument hand the Court’s previous having ed four decisions as “stated proves Why too little. limited S.W.2d, properly.” the test at 172. Two to nothing defensive issues? There is about exemplary four precedents dealt with analysis that differentiates defensive is- Harris errors omission: sues from other matter (fundamental (Tex.Cr.App.1975) S.W.2d 199 is, linchpin opinion application paragraph),2 “Therefore, error in omission of portion under of Article (Tex.Cr. and Boles v. generally is no ‘error’ in there App.1980) (applying fundamental objects error test unless the defendant in writ- to the omission of a instruction on lesser ing to claimed ‘errors’ commission and offense). included Ante charge.” omission in the 61. This principle is not limited defensive issues. precedents
The same disregarded by are n While argument, the State’s second that there can- it has overruled Al- denying (ante be errors omission in the absence of manza 9), at 61 n. the Court has deliv- requested instruction. Almanza would be opinion directly ered contradict by acceptance stood on its head basis of Almanza’s argu- reasoning. The confu- in disregard especially ment. It is regrettable likewise Article sion that will ensue Procedure, because, 36.14 of opinion the Code of Criminal as Part IV of this demon- e.g., (Tex.Cr.App.1976). Accord, S.W.2d 455 Perez
69 appeal charge was not strates, by plaining that the reached the same result would be n principles. given.) application of the argument, that the deci- The State’s third jury on III to instruct the defen-
sion whether
by the evidence is a strate-
sive issues raised
is
its
contention
that
Although
primary
gic
legal
one for counsel rather than a
one
error
as
thing
is no such
fundamental
there
court,
for
also is contradicted
statute
instruction, the
also
of an
State
omission
requires
and
Our law
that “the
decision.
appeals
of
that
evi-
in the court
argued
...
...
judge ... shall
deliver
defense mistake
did not raise the
dence
distinctly setting forth the
charge
written
law fact,
petition
discre-
its
and it raised
case_”
applicable
of Crimi-
Code
tionary
contention that “there was
review the
Procedure,
nal
Article 36.14.
error was re-
no fundamental
error and
36.14, V.A.C.C.P.,
legal
(sic).
places
arguments
Art.
and
quired”
Given these
judge
duty
responsibility
relationship
and
on the trial
between the standard
the close
proper and correct
prepare
concept
for a
of fundamental er-
harm and
law,
may
charge
ror,4
on the
and the law
be
also the
appropriate
consider
is
This
omission of
applied
to the facts adduced.
that the
appeals’
court of
performed by
legal duty which must
egregious
be
error.
the instruction was
judge.
may
delegated
It
not be
questions
are whether
defense
attorneys
respective parties
for the
... or
in a trial
of fact
available
mistake
anyone
for that matter.
else
vehicle,
whether was
use
unauthorized
(Tex.Cr.
State,
Doyle v.
631 S.W.2d
738
evidence,
its omis-
and whether
raised
judge
App.1982) (plurality opinion). The
deprived
objection
request
without
sion
parties
if the
must deliver
impartial
appellant
trial.
fair
State,
expressly
it. Garrett v.
159
waive
was indicted
unautho-
appellant
(1953).
203, 262
Tex.Crim.
vehicle,
is, intentionally or
rized use
adversaries;
system
parties
In our
are
mo-
driving
operating
another’s
knowingly
judge
parties may make
is not. The
without
the effective
tor-propelled vehicle
present evi-
strategic decisions whether to
A defendant’s knowl-
consent of
owner.5
dence, and the evidence will determine what
is one
edge of the lack
consent
applied.
law must be
To that extent
McQueen
proven.
must
elements
adversaries’ decisions affect
court’s
State,
(Tex.Cr.App.1989);
v.
subject
par-
by the indictment.
strategic
alleged
vehicle as
decisions
(Of
new ac-
apparent consent: a
ties.3
for a
defense was
course
of,
possession
quaintance
given him
estops
requesting party
complaining
from
drive,
permission
vehicle. This Court
appeal
give
it was error
raises
de-
Livingston
has held that such evidence
739 S.W.2d
cases).
fact,
that the
(Tex.Cr.App.1987) (collecting
By fense mistake
jury on the law of
charge shоuld instruct the
reasoning,
an
to a
the same
Lynch
objecting party
eom-
that defense.
estop
should
from
adversaries,
part
making
Except
... as well
a review
sense
may
argument
jury,
"improper
of counsel” to the
give
illuminate
as whole which
record
necessary
charge. Tex.
a further
actual,
theoretical,
make it
Code Crim. Proc. Art. 36.16.
just
accused.”
harm the
(Tex.Cr.
App.1984).
finding error in the court’s
4. "We hold that
jury begins
inquiry;
charge to the
ends—the
—not
§
evidentiary
31.07.
step
review 5.Tex. Penal Code
the next
is to make an
eases).7
(Tex.Cr.App.1983).6
Legislature
It
error to omit
Had the
codified
fact,
instruction on this defense.
might
defense of mistake of
we
be free
say
could,
should,
that the
adequately by
handle the issue
requiring the
IV.
*13
find
element
the culpable
of
men-
question
The final
is whether the omission
power
tal state in order to convict. But the
instruction
the defense of mistake
Legisla-
to create and define defenses is the
egregious
of
deprive
fact was so
toas
ture’s,
disregard
and a court
should
its
appellant
impartial
of a fair and
trial. The
Nevertheless,
relationship
choice.8
the close
degree
actual
harm
assayed
of
must be
between the defense of mistake of fact and
of
light
jury charge,
the entire
of
state
culpability
element of the
is im-
offense
evidence, including
the contested issues
portant in
of
the consideration
the harmful-
weight
evidence,
probative
argu-
ness
the omission of an
instruction
counsel,
ment
other
in-
relevant
defense.
formation revealed
the record of
State,
as a wholе. Almanza v.
686 S.W.2d
appeals
The
aspect
court of
overlooked this
157,171 (Tex.Cr.App.1985).
of the defense of mistake of fact
it
when
said
(916
91):
S.W.2d, at
The defense of mistake of fact is codified in
8.02(a)
situation,
Section
Penal
In a
Code:
similar
the Court
Crimi-
Appeals
nal
has held that
trial counsel’s
is a
prosecution
It
defense
that the actor
request
failure to
an instruction on the
through mistake formed a
be-
reasonable
necessity
defense of
constituted ineffective
about
if
lief
a matter of
his
fact
mistaken
assistance of counsel because the
negated
belief
culpability
kind of
re-
“precluded
giving
appel-
from
effect to the
quired for commission of the offense.
defense,” rendering
lant’s
“a
conviction
statutory
The
term
of culpability”
“kind
State,
foregone
Vasquez
conclusion.”
v.
“culpable
means
Beggs
mental state.”
v.
948,
(Tex.Crim.App.1992).
830 S.W.2d
951
State,
(Tex.Cr.App.1980).
597
375
arises,
Vasquez,
This case is not like
then,
because the
The defense
when
evi-
there is
necessity
defense
is different from that of
mistaken,
that
dence
a defendant’s
reason-
Necessity
mistake of fact.9
is more than a
negated
able belief about matter
fact
offense;
negation of an element of the
culpable
element
required
mental state
fact,
requires
defendant
admit
the offense.
justify
commission of the offense and to
it.10
peculiar aspect
This
of the defense of mis-
Vasquez
charge
support
law in
had no
puts
take of fact
principles
astride two
necessity.
defense of
jury charge.
the law the
"Whileit
true
that a
give
defendаnt
entitled to an affirmative
In this case the
could
effect to
issue,
submission of a defensive
it is
charge
likewise
the defense of mistake
fact.
given permitted,
true that
affirmative
need
required,
theory merely negates
appellant
guilty
when
defensive
if
was a
find
there
State,
culpable
element
the offense. Sanders v.
707 reasonable doubt about the
mental
78,
(Tex.Cr.App.1986) (collecting
knowledge
5.W.2d
he
state —his
did not have
Accord,
State,
e.g.,
6.
v.
necessity
L.Ed.2d 624 statutory ‘pre that the ] “All trials by jury, shall be and in interpreted cursors’ to Article 36.19 had been criminal eases proceedings shall be requiring a trial give regulated prin- court ‘to instruc conducted by’ party ciples tions asked for and a trial the common law of England[.]” ” court’s failure to do so is not ‘error.’ Po Plan and Powers of the Provisional Gov- sey, Judge (Nov. at 64 fn. 14. concurring Texas, Clinton’s ernment of VII article opinion in mentioning worth 1835), Walker is here Similarly 1 Gammel’s 911. the Con- for its historical view article Republic Congress stitution of the directed supports, contradicts, rather princi than to introduce statute the common law of ple court, parties, that the trial not the de England, and mandated that “in all crimi- “applicable cides what law cases, to the ease” nal the common law shall be the rule *15 on Following based the evidence. is an IV, 13, ex Id., § of decision.” Article at 1074. excerpt Judge tensive from Clinton’s discus Congress passed soon an Act to estаblish sion: jurisdiction powers courts, and of district § provided: 43 of which
As the language sug [of article 36.14] gests, that a charge trial court is to the of judge any “No of said shall courts jury on applicable the law to the charge jury the of weight as the the facts of the a requisite prescribed case is in criminal, like any in or evidence cause civil terms Old Code articles 594-595. judge up See but may such sum the testimo- State, generally ny, any 686 S.W.2d and shall as (Tex.Cr.App.1985)(Opinion arising on Rehear matter law thereon [.]” of 161). ing, at pre But there were several Id., 22, 1836, 43, 1258, § Act of December cursors. at 1269-1270.
First,
Shortly
gaining
placate
Leg-
in an
after
statehood the
effort to
restless
“Texians,”
passed an
congress
Regulate
islature
Act to
Pro-
of
of
the State
Courts, §
ceedings in District
Coahuila and
99 of which
Texas
a “Plan for
offered
provided
pertinent
in
part, viz:
Regulation
Better
of the Administration of
Texas;”
cause,
Justice in
“Of the Trial Criminal
“...
argument
After the
aof
and
provided
testimony
bar,
Plenario”
that after all
before
retires from the
argument by
parties,
and
judge
judge may
“The
jury,
deliver a
to the
shall then
upon
make such
following
observations
but under the
restrictions and
regulations:
evidence and
deduced
judge
any
in
not in
shall
facts
ease,
criminal,
proper
necessary
as he
think
and
[com-
civil or
or
for
jury,
the instruction
on
weight
who shall then
of the evidence or
ment]
of
277,
retire for deliberation.”
No.
testimony,
Decree
shall
frame
so
his
72, (1834),
questions
article
of
Gammel’s Laws Tex-
as to submit
of facts to
364,
(“Gammel’s”).
at 372
jury,
of
the decision
and he shall
court);
State,
118,
(Tex.Crim.App.1992),
beforе trial
939 S.W.2d
Jones v.
833 S.W.2d
McDuff
—
607,
denied,
denied,
921,
(Tex.Crim.App.),
cert.
U.S.
t.
507 U.S.
113 S.Ct
cer
-,
125,
1285,
(1997)(trial
(1993)(trial
118 S.Ct.
O’Connell The 18 Tex. at 363 at 249-51 n. (1857). J., concurring) (emphasis except Accord: Atkinson v. The added (1857): otherwise). Tex. at 529 cursory where indicated Even a reading of the above discussion reflects that below, facts, “The court these in- been, always all “precursors” has under law, jury by structed the as to the read- province judge article of the verbatim, ing charge, them the instruct by on the law as raised (10 [emphasis original] Jordan case evidence, irrespective requests objec- 492-4), by Tex. giving thеm other by parties.3 tions charges, as asked counsel for the prisoner, subjects manslaugh- on the principles These are consistent with this ter, self-defense, and reasonable doubts. that, Court’s purposes recent is, question or not whether evidence, legal sufficiency measuring of the court, charge of the with reference to longer we no view the as reflect- case, the facts of this was not calculated ing parties respective what the see as their jurists jury. great to mislead case, recognize theories of the but we now England and America never have been every that in “hypothetically case there is a able to devise which would be charge” accurately correct setting forth the Indeed, applicable every ease. so Malik, applicable supra. law See thereto. task, vain is the it has never been es- The hypothetically correct sayed. charge, may A properly appear dependent upon be requests direct the minds the true objections by parties. point may one mislead the Malik, reviewing Before court viewed another, where a turning different theory according State’s point indicated the facts it. It what State include erroneous, elected too, failing be charge. Nickerson v. present the distinctions between the dif- (Tex.Crim.App.1990). the State ob- Unless offense, grades ferent where the jected charge, presumed we facts, conflicting leading to different correctly instructed the theories ad- conclusions, require such distinctions to vanced the State: drawn, so as to enable *17 grade determine to which the offense objection by State, analysis Absent an the belongs. Mitchells’ Yerg. Case. 5 theory guilt ap- of the of be State’s must this, By may neglecting the as easi- proached viewing from a of the misled, in ly way.” as presented may While the evidence at trial Id., at 529. suggest alternate of criminal cul- theories prescriptions pability, reject Old Code for a we as a to them means Because, to the against were enacted that back- sustain the in conviction. the bar, ground prior of previous objected statutes and deci- case at the neither to State sions, special and we presume are entitled to that the nor asked for a legislature judicial technically charge, the was aware of those the stands cor- constructions had them in mind as rect sound to of and it and relevant the theories judges charged, appel- trial “a responsibility mandated to deliver written criminal viz: charge distinctly setting ap- pri- engaging forth the law lant in criminal conduct actor, plicable [emphasis in original] mary appellant engaging in crimi- case.” Act, V.T.C.A., Code primary See Construction nal conduct as actor and § party. Government 311.023. Code portion Judge requested charge pertained
3. The isolated
the
to a matter not
Clinton’s discus-
says
Walker,
majority
sion in Walker which
stands for
at
raised
the evidence.
proposition
statutory 'precursors’
(Clinton,
J.,
“that
concurring)("there
was
249-51 n.
requir-
interpreted
Article 36.19 had been
ing
as not
nothing
this
for an
in
evidence in
сase to call
give
a trial court
not asked
'to
instructions
exposition
upon [which
of the law
the defendant
by’ party
and a
court’s failure to do so
requested]”).
"
context,
‘error,’
read
not
when
shows that
felony
the second
Stephens
it is a
see
890;
which event
Id. at
also
degree.
(Tex.Crim.App.1986)(where
special charges and
“requested no
State
applicable
provi-
Code
Id.
(quoting
at
...
objections
to the court’s
sion).
made no
we
agreed with the State that
We
20.04(b)
only
operate
assume therefore that
[w]e
“construe section
should
theory
defense,
charge adequately represented
legal
the initial
with
burden
like
accused,
appel
but the ultimate
guilt upon
prosecuted
production
the State
Id.
lant”).
at
persuasion on
burden of
State.”
“[sjtrictly speaking”
286. We observed
rejected
majority
by a
reasoning
That
was
“
‘ground
of defense’
the issue was
that,
least
of this
favor of the idea
justifies
it
commis-
sense that
excuses
prosecution,
respect
theory
with
Rather,
only
offense.”
it
had
sion
cor-
“hypothetically
each ease a
there is for
mitigating punishment. We never-
effect of
4 Malik,
appel-
See
charge.”
supra. An
rect
it
treat
like defensive
theless determined to
theory
prose-
late court can determine the
issue,
a defense
“[a]s
cution,
accordingly,
applicable
law
accused had
threshold burden
issue” the
presented,
based
the evidence
production,
then once the issue
“hypothetically
so as to fashion a
correct
persuasion
shifts
raised the burden
theories,
charge.” But
as to defensive
place
the victim was re-
State
show
majority says,
only
“applicable
law
becomes
We concluded there
leased was
safe.
re-
case”
virtue
a defendant’s
support
infer-
was evidence sufficient
quest
charge.5
be included
safe,
place
of release was
but
ence that
to offer
evidence
the State
failed
safe;
was not
there-
place
release
II.
fore,
have been submitted
issue should
majority expends
at
notable effort
the trial court’s failure
do so
distinguish
tempting to dismiss
somehow
Id. at 286-87.
Having found
error.
was
(Tex.Crim.
Williams
III.
assigned?
it Was
at all reasonable? Did
Finally,
the majority’s
interpretation
present
theory
which
reasonable
State,
v.
686
157
S.W.2d
entertain,
mind
supported
could
or
itwas
(1985)(opinion on
reh’g), wrong. The ma-
by
testimony
such
remotely
as was
calcu-
jority says omission of a defensive issue in
to destroy
lated
the Statе’s case when con-
the charge is not
in
“error”
ab-
sidered in connection with the other testi-
sent a request
objection.
or
To the con-
mony in the
as
well as the
trary,
specifically
referred
phase
a whole?
theWas
the case sim-
omissions
of defensive
in
theories
an
ply
by
addition to the case as made
objection.
a request
absent
or
Dis-
therewith,
State and consistent
or was it
cussing
egregious
the determination of
error
theory?
in direct
with the State’s
(the analysis
conflict
play
does
come into
important
These are all
matters to be con-
unless the defendant
failed
to the
passing upon
in
[degree
sidered
charge), this Court in Almanza stated:
in
omission
harm]
or
error....’
determining
‘...
whether
the error
Almanza, 686
at
(quoting
173-74
...
material
we are to look to
whole
Davis
28
542, 13
994,
Tex.App.
S.W.
bearing upon
subject.
record
What
(1890),
dism’d,
651,
995
writ of error
139 U.S.
testimony
was the nature of
supporting
(1891))(emphasis
S.Ct.
L.Ed. 300
cogent
verdict? Was it
and over-
added).
whelming? What
character
testimony presenting
phase
theory
The State
does
the Court
contend
the case omitted
noticed in the
Appeals’
erred in
manner
which it
punishment phase
at
aggravated
of an
though
provision
kid-
even
code
at
issue Grunsfeld
Posey,
napping prosecution,”
subsequently
by legislature);
at
amended
but neverthe-
Mar
having
less
precedential
views Williams as
(Tex.Crim.App.1994)(citing
propo
value because the
Williams
"more
less
Grunsfeld
regarding statutory
sition of law
construction
assumed ... without
discussion” that the
though
provision
code
at issue in
duty
sponte
trial
court
to sua
submit an
Grunsfeld
subsequently
by legislature).
amended
Despite
on the
instruction
defensive issue.
Id.
Moreover,
recognizing
application
Williams'
issue,
amount
discussion devoted to the
say anything
ap
here
about continued
directly contrary
the fact remains Williams is
there,
plication
provision
of the code
at issue
but
majority’s holding.
majority
The
reasons
speaks
applied
rather
to the broader notion
appel-
apply
does not
unless the
"Almanza
subsequent
Williams
was unaffected
jury charge”
late court first finds 'error' in the
penal
application
code amendment —the
of Al-
and a
does not commit "error”
(any
of a
manza
omission
defensive issue
failing
sponte
to sua
on a
instruct
defensive issue.
issue)
defensive
in the absence of a
or an
But
held
Williams
there was "error” in the
objection.
majority says
"Legislature’s
charge due to the
of a
omission
defensive issue
20.04(b)
amending
response
Section
to this
raised
the evidence.
opinion
Court’s
in Williams is further evidence
majority
follow
be
"declines” to
Williams
Legislature
impose
that the
does not intend to
says
"effectively"
cause it
Williams has been
on trial
to sua
courts
instruct the
Legislature.” Posey,
"overruled
at 63.
Posey,
legisla
defensive
issues.”
at 63. The
legislature
opinions
does not "overrule”
ture
section 20.04 after Williams to
amended
Court;
they
pass legislation
what
do
can
change
place”
being
a safe
"release in
from
impact
subsequent leg
will
future
A
cases.
being
treated like a
like
defense
treated
provision
islative amendment of a
in a
issue
Spakes
affirmative defensе.
597,
particular
bearing
reasoning
case has no
on the
L,
(Tex.Crim.App.1996)(Keller,
fn.
pertained
of the Court
McCormick, P.J.).
dissenting joined by
That is
*19
provision
opinion.
as written at
time
“proposition
of law” that was affected
way,
Legislature's
Put another
amendment of
subsequent legislative amendment. This amend
penal
provision
possibly
irrelevant,
code
cannot
have
proposition
ment
bearing
ancillary
general propositions
omission of
defensive issue in the
pertaining
appellate
ap
law
review that were
analysis.
subject
is error
Certainly,
to an Almanza
plied
previous opinion.
or discussed in a
See
Legislature
if the
wanted
have an
(Tex.Crim.
Almanza; argument rather the sole State’s analysis have been no such should Disagreeing with the State’s
conducted.7 contention, I would affirm the Court of
sole
Appeals. OVERSTREET, JJ., join.
BAIRD and
Mary KLAGER & Gene
Klager, Appellants, WORTHING, III; O’Quinn,
Dr. Fabian
Kerensky, Laminack; McAninch & Laminack, Appellees.
Richard N.
No. 04-95-00134-CV. Texas, Appeals
Court of
San Antonio.
Aug. Appeals. Judge says questions “The concurring opinion the Court Womack before In his questions” are those raised questions charge distinctly before this Court are whether "[t]he and, discretionary specifically petition re- applicable if it set forth the law not, petition claim the does not view. The State’s the failure do so did whether *20 Appeals erred its conclusion that request deprived absence impartial Posey, deprived fair of a impartial appellant of a fair and trial.” J., (Womack, concurring). were the trial. Those