Shanks v. State
710 S.W.2d 585
Tex. Crim. App.
1986
Check Treatment

*1 cedures used with those same con- Court to Texas of Correc- principles. stitutional tions. As for the State’s contention that TEAGUE, JJ., McCORMICK and dissent.

Burroughs, supra, prevents applicant from bringing collaterally already what he has

brought directly, we point would out that

decisions the Fifth are Circuit not bind

ing on us. Additionally, the Fifth Circuit

Burroughs, relied Title 28 U.S.C. portion

Sec. holding. of its terms,

By its own applies only Sec. 2255 prisoners sentenced courts established SHANKS, Appellant, Congress, ofAct not state courts. If actually U.S.C., meant Title 28 applies prisoners Sec. to State seeking system, relief in the federal fails, argument also because there no precluding language 2254, supra. Sec. Court of Criminal

Burroughs, supra, clearly point. is not in We also note that the Fifth Circuit has May 28, 1986. directly addressed the issue us before to Estelle, French v. day 692 F.2d at (5th Cir.1982), cert. den. 461 U.S. 77 L.Ed.2d 313 hold

ing that a failure of the present State to

sufficient prior evidence of convictions in

order to enhance conviction under Texas at the first trial was barred in the

second trial jeopardy. Finally, double

applicant’s claim is actually “no evi

dence” just and not an insufficient evidence

claim, and can brought time. See parte Moffett,

Ex parte Barfield, Ex

App.1976); parte Ex Murchi

son, 654 (Tex.Cr.App.1978).

Accordingly, applicant’s writ is applicant

and since was tried and sentenced parte Ex

by jury, under Augusta, grant applicant

we a new trial. Should

applicant trial, be convicted in the new

additionally hold that (d)

not be enhanced under subsection but

Sec. enhanced one and one conviction which would oth-

erwise be admissible.

Accordingly, applicant shall be remanded custody Sheriff of Harris

County copy for retrial. A of this

is to be forwarded the Clerk of this

586 McLeaish, Odessa, Tex., Cobarrubio, held that such an Jim Vol- had

Michael Tex., subject objection. to an As lers, Austin, appellant. was for instruction noted, Jenkins, did supra, held that such Martin, L. Atty. Yern Dist. and David require objection. Both Jen- not even Midland, Tex., Joers, Atty., Asst. Dist. Rob- Cobarrubio, decided supra, were kins and Austin, Huttash, Atty., for the ert State’s appeals overruled the after the State. rehearing. pellant’s motion for Cobarrubio,

However, since Jenkins decided, decided Al this Court were (Tex.Cr. State, 686 S.W.2d 157 manza v. PETITION ON APPELLANT’S OPINION rehearing), in (Opinion App.1985) on REVIEW FOR DISCRETIONARY there was either to be used when the tests PER CURIAM. unobjected to error objected to error or appeal jury reflects that a The record of out. jury the were set the court’s Shanks, hereinafter convicted State, 707 v. Also see Castillo-Fuentes appellant, murder and referred to as the 1986); (Tex.Cr.App., 559 S.W.2d years’ con- his at 99 assessed State, 208 v. 700 S.W.2d of Corrections. finement the 528 v. 694 S.W.2d Moore App.1985). September the Paso appeals did the court of Because appellant’s affirmed the deci- any of the above have the benefit 15,1982, without On December conviction. motion appellant’s the it denied sions when comment, that court also opinion or this cause to remand for we will appellant’s motion for rehear denied the appel- only consider the for it to that court State, 643 150 ing. See v. Shanks concerning the al- contention lant’s above (Tex.App. — El in the court’s to error leged unobjected rehear- in his motion for appellant, presented jury, the which was ing, asserted grounds of rehearing as for his motion charge was fun- that the trial court’s numbered IV and V. error it failed to because damentally defective It is so Ordered. proof on the place the burden properly appellant, to than the rather MILLER, J., dissent. ONION, P.J., and passion be- of sudden the element prove noted, the As a reasonable doubt. yond TEAGUE, or- J., to this Court’s dissents re- motion for appeals denied the court He would have der of remand. opinion or comment. hearing without conten- appellant’s and-decide the consider Furthermore, because at this time. tion for appellant’s Federal principle of the issue invokes issue. to consider discretionary review is- law, decide he would Constitutional In Jenkins v. (Tex.Cr.App., State No. Wilbur, Mullaney v. the basis of sue on 64,004, 16, 1983) February (Pending on 44 L.Ed.2d U.S. State’s Motion for Rehearing), which was v. of Almanza not on the basis decided less than a month after Cobarrubio 686 S.W.2d 675 S.W.2d concurring. CLINTON, Judge, decided, this Court held that an instruc- peti- tion on the granted appellant’s offense of murder Noting was funda- that we if, mentally applying defective review to examine the law to tion fatally the facts of the properly it failed to contention that Cobarrubio place of the proof charge,1 burden of on the State to infected disprove motion passion. element of that not until points sudden out (Tex.Cr. App.1984). by jury papers did waiver of trial appellant complain of that omission in the cause, required Y.A.C. charge on murder and that the court of it, Although provide the rules C.P. Tex.Cr. appeals “denied his opin- motion without App. 304(h), did Rule not avail ion or comment.”2 invitation, opportunity itself of an real- —an proceeds to remand this cause *3 ly reply. granted petition to —to by grant initial of review pausing justify to every ground presented by Lopez. review premises.3 this in the Court Originally solely on submitted brief from Jurisdiction, power authority and to Lopez, the found Court fundamental error grant in review these ought circumstances complete in “a absence of a waiver explained, although be agree I that form,” and held that “the issue of cause should be remanded to the waiver be raised for the first time on merits, Court of to decide the discretionary review.” Then we heard we have almost uniformily done when con- outcry loud persons from the State in the a analy- fronted with need for an Almanza Prosecuting Attorney of the State and the Compare sis.4 attorney. affected district But on assumed (Tex.Cr.App.1985), S.W.2d 208 in which the strength of responsibility opinion retained review in or- its initial in Brazeale v. der to make per- State, “ultimate resolution” of a (Tex.Cr.App.1984), 683 S.W.2d 446 ceived “obvious conflict between Cobarru- only Court denied both to suf- motions— ” id., bio and n. 5. fer the of rehearing being embarrassment granted in Finding Brazeale. that extraor-

Equally procedural checkered is the his tory dinary of turn of events within the contem- S.W.2d 446 (Tex.Cr.App.1986), reversing Lopez plation Tex.Gr.App. suspend- of Rule we State, 652 S.W.2d 512 (Tex.App. 309(f) ed Rule and the State leave — Houston 1983). As grounds well as contesting [1st] rehearing to file a second motion for in reasons for decision rendered the court Lopez. appeals, presenting first his con rejecting after the second tentions to the court of appeals motion ground asserting for review com- failure to otherwise, rehearing or Lopez included 1.13, ply with Article in accordance in his for discretionary review two Brazeale, with grounds for review what he asserted Court turned for the first time to the issue constitutes, in a classic sense of the con 1.15, supra. Finding under Article that cept, one, fundamental error: that trial compliance mandatory with Article 1.15 is judge signature had not manifested and error to been failure have approval to trial court waiv eror, and factoring held fundamental rights er of and to stipulation consent rationale of accused, Carter v. evidence as Article V.A.C.

C.P., two, mandates; judge Court conclud- the trial erred conducting trial without bench valid ed: emphasis throughout yet any All is mine unless other- have not demonstrated to bench and bar governing policy discretionary wise indicated. cohesive review appeals. this Court vis vis courts of For newly granted jurisdic- itsWith constitutional example, rarely does an of the Court tion, power authority, years ago almost five mention character of reason considered in promulgated "the character of rea- determining grant impressed to review. More exercising that be sons will considered” in its it the result reached below than how was judicial "sound discretion” to determine wheth- at, proceed come too often we on an ad hoc appeals, er to review decision of a court of basis. Thus the stature this Court in however, reserving right, grant to and sum- sorely charging its function is dimin- marily appropri- to make such orders as be ished. 302(c) 304(k). Tex.Cr.App. ate. Rules Not have we failed to cause to the Court adhere 4.Almanza rules, pronouncements own its but we Moreover, should disposes of the cause. Carter holding in

“Applying our here, although gain this losing party instant we find that review appellant’s petition for proper position raised Court would review, because we have decision of a court of reviewing a 1.15, supra, error to deemed such Article 5; V, Articles 4.04 44.01 and § § fundamental, authority this Court has 44.45, V.A.C.C.P.5 it to review now.” Putting theory to work the Court signature of the Holding that lack of remanded Porter v. approval judge showing of waiver trial 490-85, (Tex.Cr.App. No. delivered fun- by the trial court constitutes consent Al- 1986) assessment of harm” under “for reversal, mandating damental manza, conformably remands today remaining grounds did not address appeals for to defer to a court of this cause for the deci- implicating review reasons appeal. made on direct a decision better *4 judg- The court of sion of the I concur. that action With State, su- ments were reversed. pra, at 449. DAVIS, DAVIS, W.C. McCOR- TOM G. appel Similarly, in instant cause that CAMPBELL, JJ., concur. MICK and did not raise Cobarrubio lant appeals will not bar issue. from n. 3 supra, at more than three it was granted review to con

years ago that we to the whether the

sider defective, much deci-

fundamentally bearing the matter of sional GRAHAM, Appellant, Downs Tammie developed prin since error has been then— Lawrence, both cipally, e.g., Almanza Castillo-Fuentes, supra, and The (Tex.Cr.App.1986). itself, others on In

heels, to courts of remanded causes Appeals of Criminal “egregious whether appeals to determine Shannon E.g., the trial. harm” infected State, appeals a court of theory is that since instance to in the first jurisdiction has determination, restoring the

make that appeal pre- posture on direct to its

cause of a court of singular role

serves the opportunity to con- it an

peals and accords gener- of Almanza light issue in sider the error, where there Cobarrubio ally, and Castillo-Fuentes, particular- parties, to this Court to the

ly. Benefits system come justice the criminal

and to finally appeals thereby

when analysis latter but the theory for a harm apply does not call Court did not That this does, assuredly and deference Lopez is not in- most error in fundamental obvious unique on direct of courts of remanding role a cause when our consistent analysis made that an dictates Almanza error is claimed The former there. review. petition for