Walker v. State

Third, contemporane- majority set a WALKER, Wayne Appellant, requirement for the objection

ous trial Daniel they discover that to meet whenever State (Since majority proceeding is void. Texas, Appellee. The STATE overruled, distinguished, or Her- has not No. 896-89. rod, Heath, I assume Levy Fullbright, contemporane- Appeals their they do not intend for Court of Criminal requirement apply En Banc. objection ous trial State.). I find only to the defendants but Sept. 1991. and un- requirement impractical to be Rehearing Denied Oct. The trial court’s unauthorized workable. March Certiorari Denied Special Master in the appointment of 112 S.Ct. 1481. See action. instant case was an administrative place type This of action often takes out- the offices

side the courtroom and within judge, away presence from the the defendant. There is often no

State and

opportunity contemporaneous objec- for party.

tion either “earliest feasible by the

opportunity” standard concocted arbitrary, ap- ad hoc invites

proach determining whether or not the preserved has error. I find it to be

State

wholly unacceptable. ground

I would sustain

rehearing, and remand this cause to the proceedings

trial court for consistent with unsatisfied, yet original,

our and as order.

This should in its rul- be consistent

ings prior or at least overrule case law.

Recently we have decided at least three hold trial

cases which that when a court act,

not authorized law to there need not objection contrary, and also

be an I the act is void.2 dissent

aggressive majority’s deci- assertive rehearing.

sion to overrule the motion for

McCORMICK, P.J., BENAVIDES,

J., join this dissent. Walker, pro Wayne se.

Daniel Jr., Skeen, Atty., Dist. Michael J. Jack Sandlin, Tyler, Robert Atty., Asst. Dist. Levy v. 2. Heath v. S.W.2d 808. 335; Fullbright v.

Huttash, Austin, entirely Atty., for the The State’s case was based on responded circumstantial evidence. Police State. burglar to a alarm at a K-Mart store short- ly eye- after 1:30 a.m. There were no burglars po- witnesses and the fled before The store en- lice could arrive. had been shattering glass connecting tered door OPINION ON STATE’S PETITION FOR garden the fenced-in center area to DISCRETIONARY REVIEW part building. tele- enclosed Two PER CURIAM. garden from this visions were recovered footprints area. Police found two sets of by jury Appellant was convicted coming from the store which led them to burglary building. The offense of shotguns grassy adjacent in a area four punishment forty trial court assessed the store. Appeals years confinement. The Court of weapons by breaking had taken been reversed the conviction and ordered an ac- glass burglars case. One of the cut quittal. Walker glass considerably himself on the and bled (Tex.App. Tyler, granted re- We — in and outside the store. Blood found was view to determine whether the evidence shotguns, glass on and near in was sufficient to sustain the conviction case, and outside the store. No blood was light jury charge. affirm We will This, found on the televisions. combined judgment Appeals. of the Court of footprints, police sets of led with two alleged appel- The indictment this case people that at least two were believe primary lant committed this offense as a taken. Samples volved. of the blood were actor. The court’s included an ab- finger- The televisions were dusted for parties. instruction on the law of fingerprints found prints. No usable were application paragraph tracked the lan- shotguns or inside the store. No guage failed to in- of the indictment but ap- sought for comparison blood test was any immediately pre- clude reference to the it pellant since the officers believed was ceding general parties instruction. An burglar the other who cut himself. appel- anonymous tip police suspect led Appeals The Court of found that prints found made lant. Some of were if allowed the to convict right palm by appellant’s consistent with appellant guilty by his found own television, opposed to mere- carrying the Appeals conduct. The Court reviewed sixty-six inch ly handling it as it sat on a to determine whether ra- evidence high prints on the tele- Other found appel- trier of fact could have found tional shelf. not identified. vision were guilty beyond lant a reasonable doubt as a appellant’s Finding conduct. result of own Appellant arrested seven weeks la- was appellant no en- there was evidence appel- apprehension ter. At the time of his Appeals building tered the the Court of name. Offi- gave lant the officer a false acquittal. ordered an reversed and only that appellant cers informed burglary gave him no de- was (Tex. In Jones v. booking appellant tails. While was day), Cr.App.1991) (reh’g denied this we jail, spoke an unidenti- area of the he with for the to be autho- held that order fied One officer over- individual knew. party, one as a rized to convict in here appellant say, “They got heard me parties must be included burglary up I for the of K-Mart north but Jones, charge. paragraph of the didn’t do it.” at 669. Since the law light application para- Viewing the evidence in the most not included verdict, must determine we find the State graph in this we favorable up proved appellant picked is sufficient to find at most that whether the evidence of the State’s guilty by his own conduct. one of the televisions. None appellant Accordingly, charge given. actually light entered showed himself, although Appeals it cer- can of the Court of judgment that he tainly be inferred from evidence affirmed.1 approached by police, appel- did so. When identity his and exhibited

lant lied about BENAVIDES, J., in the result. concurs guilty knowledge about the offense some CLINTON, concurring. jail. This the inference while at the allows burglary and appellant knew about the that the accused prosecutions “In criminal all was somehow involved. speedy public by an trial shall have appel- possibility I, 10, is that One reasonable Article Constitu- impartial jury.” § building carried the the lant entered “No citizen of this State tion of Texas. garden Another rea- to the area. television life, liberty, property, deprived shall of be appellant is that waited hypothesis sonable except by the privileges or immunities ... the tele- the and carried outside Id., the land.” due course of en- handed to him the one who vision 19-1 entirely the store. This is consistent tered judge of the jury is the exclusive “[T]he by appellant at the statement made with facts, to but it is bound receive jail, palm print the evidence and the the governed thereby.” from the court and be the televisions. location of Therefore, 36.13, in ev- Article V.A.C.C.P. must be reviewed to deter- evidence jury, argu- before the ery case tried to supports finding that mine whether it begins judge trial shall “deliver to ment appellant guilty by of his own was virtue charge distinctly a written ... this is a circumstantial evi- conduct. Since setting applicable forth the law to case case, dence we must determine whether 36.14, Article V.A.C.C.P. [.]” every hypoth- excludes reasonable the essential function of a Such was guilt appellant by esis other than the his law, and still is under at common conduct. own Carlsen principle the statutes. fundamental (Tex.Cr.App.1983). The evi- fac- jurisprudence is that material our hy- exclude dence does not the reasonable by pleadings, primarily tual issues tendered pothesis guilty only as a instrument, charging and raised evi- Therefore, party. the evidence is insuffi- jury.2 In some support the dence are to the cient to convictionwhen viewed submitted Appeals correctly recognized: sympathy excite the “calculated to arouse the or 1. The Court of passions jury.” trial, Ibid. request At the State made no that the applied law of case; be to the facts of the language suggests, that a trial court is As the object neither did the State applicable on the law Hence, unobjected court’s failure to do so. requisite prescribed case is a in like facts of the failing apply the error of the trial court in gener- articles See terms Old Code 594-595. parties to the cannot be said to law of Almanza, (Tex.Cr. ally insufficiency of the evidence to transform (Opinion Rehearing, App.1985) But reversal, may require mere “trial error" that precursors. several there were rule, (cita- acquittal, jeopardy’s but not under "Texians,” First, placate restless in an effort omitted). tions congress the State of Coahuila and Texas 823 S.W.2d at 309. Regulation for the Better offered a "Plan high guard against transgressions of the 1. “To Texas;” of Justice in "Of the Administration [by powers government delegated herein provided that all Trial Criminal Plenario” "everything people],” framers declared that testimony argument by "The Rights’ excepted out of the in this ‘Bill of upon judge such observations shall then make government, general powers and shall forever deduced in the trial as he the evidence and facts inviolate, contrary thereto and all laws remain necessary may proper for the instruc- think (All emphasis ... shall void.” jury, retire for delib- who shall then tion throughout opinion is mine unless here and 72, (1834), 1 Decree No. article eration.” indicated.) otherwise ("Gam- Laws of Texas Gammel’s mers"). Further, judge is admonished however, year, following created Texians express any opin- charge of the court must not evidence, plan with a up Government of Texas weight a Provisional sum ion as to testimony, that, alia, rejected governance implicitly any argument inter facts or use discuss the evidence; and to look for them in no other law, prefer- quarter duty the "Texas Plan” in favor of their own whatever. For the it is their law, case, ence for common present they to look to the court. In the by jury, "All shall be and in criminal trials give slightest were not authorised to proceedings regulated cases the shall be weight any admission or statements of upon principles of the common conducted law of prisoner’s counsel as to the facts. The coun- England[.]” authority sel had no to make admission Plan and Powers of the Provisional Government statement, supply place or have the 13, 1835), (Nov. article VII 1 Gammel's force of evidence him. No confession Similarly Republic the Constitution of the theirs could bind or affect him. Their Congress directed to introduce statute not, law, prejudice admissions could England, and that "in common law of mandated rights; anywise affect his nor could be in cases, criminal the common law shall be the all any grounds jeopardized assumption IV, 13, Id., at 1074. rule of decision.” Article Congress whatever, upon may have defence juris- passed soon an Act to establish placed by been his counsel. Whether those courts, powers diction and of district 43 of § incorrect, grounds were correct or true or provided: which false, wholly immaterial. That was not judge any charge “No of of said courts shall jury, question the for the consideration of the weight jury the as to the of the evidence in duty question it was to decide the of whose guilt criminal, judge any cause civil or but such innocence, given upon as or the law charge may up testimony, sum the and shall court, by given the and the evidence as them jury any arising law there- the as to matter of witnesses, any by irrespective the of admis- on[.]" counsel, prisoner’s any 22, 1836, 43, Id., 1258, sions the or at Act of December grounds upon they may have rested his 1269-1270. Legisla- Shortly gaining defence.” statehood the (1847) passed Regulate Proceedings in 2 Tex. ture an Act to Neis v. The Courts, provided perti- (original emphasis). District of which in § 99 statute, part, nent applying Still the 1846 in similar vein argument the and before "... After Supreme explained: the bar, judge may jury the retires from the the assigned charge of the "The error charge jury, under the deliver a to the hut court, is, substance, in that it does not distin- regulations: following restrictions and degrees guish murder. But and define the of case, criminal, judge any in civil or shall not omission to it must be observed that the mere charge weight of the on the [comment] give court is instructions is not error. The testimony, frame evidence or and he shall so any give not not bound in case to instructions charge questions his as to submit of facts to charge party. of the asked for If the jury, the decision of the and he shall decide on right satisfactory, it was the of court was not arising and instruct them as to the law on the counsel, defendant, or his to ask such distinctly questions facts, separating law all of thought proper.... as he It is no instructions objection fact; shall, questions judge from any of and no in court, charge to the that it case, any charge, unless on make further supposes the evidence the state of fact which application jury party.” or a exist, legal really to and deduced the showed 13, 1846, 99, May Act of Gammels’ applicable state of facts. conclusion to such requisites of 1696. Under that statement precisely every what should do. That is Supreme say: Texas would Court of giving design purpose and That is of “It, undoubtedly, duty was ... jury; it is to them structions to the inform give jury the law of to the particular respecting applicable to the the law had, case, regard without to what or had hand; exactly case in and the more not, counsel, either for been read to them case, likely very will adapted to the the more * * * * Judge prisoner. The to arrive at a correct conclusion in be law, organ expositor of the and is and the law to the Instruc- fact. of explain jury. placed it to the on the bench to beyond can never what the call tion cases, privilege, in all but his It is not purpose; may mis- subserve beneficial on, duty, state what the law is. when called charge should be and is to lead. The framed language Appeals of the Court of of In the to the be considered reference facts of Judge right Kentucky, had not the ‘If the opinion that there was case. And we are of nothing law, error, confusion, uncer- decide on tainty evidence in this case to call for would characterize and licentiousness upon degrees exposition of of the law trial; safety of the ac- the criminal and the murder.” endangered, might as the cused be as much The 18 Tex. at 363 O'Connell v. be,’ justice certainly stability public would 20 Tex. Accord: Atkinson v. The Marshall, 149. & c.—3 J.J. 522,. (1857): judges are the exclusive facts, below, upon instructed “The court these Judge may them as to facts. The law, by reading them the as to the weight 1 Stat. Sec. of evidence. verbatim, (10 Tex. in the Jordan case peculiar and Acts of It is their evidence; 492-4), charges, by giving as them other weigh province exclusive prisoner, on the counsel for the duty facts alone asked it is their to find the cases, course, And, may material issues “If sup- be another.” the evidence raised alleged, evidence that need not be ports parties, on the law as it yet properly should conveyed to the here, may charge does the court on the law for its determination. though even there is no such Pitts v. allegation in the indictment.” Lately, though, there seems to be a tend- (Tex.Cr.App. ency to include helter-skelter all sorts of see Romo v. 1978); 568 S.W.2d 298 propositions abstract definitions and broad statutorily prescribed (Tex.Cr.App.1977).3 as without first de- termining germane, whether are resolves the instant issue part, whole or in pleadings and con- of Jones v. basically strength evidence, formable to the and then to fail to (Tex.Cr.App.1991), in that apply distinctly just the material matters was not included in the law the facts of the case. Well illus- charge. problems trative are proposed solu- Judge Miller views the situation of the spawned tions pertain- the instant cause Jones charge “factually different” from well as supra, Miller, J., dissenting, et al. separate decisions relied on in opinions and Judge 255.4 White dissents for the reasons involving cases cite and discuss other Jones; dissenting stated in his opinion in matters of law. Presiding Judge McCormick dissents to af- permitted by Code, As V.T.C.A. Penal firming acquittal. an order of 7.01(c), the charged appellant indictment State, Jones v. majority supra, committed the offense burglary alia, inter relies, Gar alleging “without opinions facts which State, rett v. make the party defendant a to (Tex.Cr.App. the offense 749 S.W.2d 784 criminally responsible 1986), for the conduct in deciding parties charge issue. Note 2—Continued subjects prevailing opinion 3. The on State’s motion for self-defense, manslaughter, State, rehearing supra, prod- in Romo v. is the is, question reasonable doubts. The whether regular equally uct of four members of an divid- court, charge or not this with reference Special Judge ed Court and a who concurred. case, to the facts of this was not calculated to alia, opinion Inter holds “that the absence jury. great jurists England mislead the objection, of an when the trial court fails to and America have never been able to devise a case, apply parties to the facts of the charge applicable every which would be to Id., it is not fundamental error.” at 302. While Indeed, task, case. so vain is the it has never my implementing requi- concern here is with essayed. may been properly pertaining jury charge, sites of law to a jury direct the minds point to the true preservation consequences, of error and its I do case, another, may jury in one mislead the holding observe that such of Romo has been turning point where a different is indicated State, supra, mooted v. Unob- Almanza erroneous, too, may facts of it. It be nature, jected may error still be fundamental in failing present the distinctions between the only "egregious but is reversible when error." offense, grades different where the facts, conflicting leading to different con- it, Judge perceives 4. As Miller the difference lies clusions, require such distinctions to be precise placement of abstract defi- drawn, jury so as to enable the to determine application paragraph. nitions in relation to the grade belongs. to which the offense Mitchells’ premise appellate pre- His is that there is an this, Yerg. By neglecting Case. 5 sumption jury preceding considers all ab- misled, jury may easily as in other portions charge when it comes to way.” application paragraph authorizing address the Id., at 529. Therefore, guilt. the sons, to find Ibid. he rea- prescriptions The Old Code for a “supposed since the to consider the background were enacted a as whole unless misinstructed to do decisions, prior previous statutes and and we otherwise, sufficiency standpoint, ... from a presume legislature tire entitled to that the unless the state otherwise judicial evidenced an intent aware of those constructions and had application paragraph particular that the judges them in have mind as it mandated trial meaning, charge distinctly setting or narrowed deliver "a written we too should consider forth applicable considering as a whole in case." See Code Con- whether Act, V.T.C.A., Ibid., jury’s struction Government Code verdict was a rational one.” n. § 311.023. see also at 249. itatively jurisdiction in this At 668-669. It concludes as a matter of formulated 2, ante apply govern practice, see note that “a which fails to desire, determination, suggests a if not theory of law to the facts of the case is jurispru- introduce into our criminal law insufficient on that authorize conviction regulating dence notions of new of law is even when charges aspect appellate review of that abstractly charge.” defined by jury. of trial Accordingly, S.W.2d at 670. support finds the evidence insufficient to Yet, if we but follow the doctrine of finding guilty prin- verdict as the decisis, stare of the immediate resolution (i.e., cipal party actor to the offense problem is not difficult. It is now axiomat- conduct, committed V.T.C.A. own one, proper ic that in a case such as this 7.01(a)) Id., at 670-671. Code, specif- the abstract law of should be concurs, Júdge believing Miller the factual ically applied to the facts of the case. v. Garrett indistinguishable situation State, 299, v. Johnson 739 S.W.2d at 304-

State, supra.5 State, (Tex.Cr.App.1987); Jaycon v. (Tex.Cr.App. 651 S.W.2d at 806-808 pri- Presiding Judge dissents McCormick 1983); Rasmussen v. marily opinions, recent because believes (Tex.Cr.App.1980) (Opinion supra, v. and Nicker- e.g., Garrett Submission); Apodaca Original son v. (Tex.Cr.App. 782 S.W.2d.887 (Tex.Cr.App.1979); at 698 1990), have “reviewed (Tex.Cr. Savant determine whether section App.1976); Harris v. sufficient,” the evidence each case is McCuin (Tex.Cr.App.1975); Dissenting opinions Opinion, at while (Tex.Cr.App. parts in other cases have “looked to other 160 Tex.Cr.R. 222, 1974); Oliver v. charge,” producing “necessarily thus (1954); Barnes v. 467, at 470 id., results, perplexing” at 675. His solu- State, 131, 708, 145 Tex.Cr.R. proposition tion is to abandon State, Crisp (1942); v. 125 Tex.Cr.R. 710 sufficiency of evi- courts must determine (1934); Gentry 603, 69 772 support guilt from the dence to a verdict of 478, (1887), Tex.App. and 6 S.W. jury charge, in notion that mea- favor of a therein; Howell cases cited sufficiency “against the theo- sures 293, (Tex.App. at 294 —Houston id., case,” 676, by “presuppos- ry of the [1st]) history; no PDR see also 2 Branch’s jury charge,” ing hypothetically correct Ed.1956) 3-5, (2nd Annotated Penal Code id., 66, Branch’s Annotated Penal Art. and part, Judge equally his is For White 346, (1916) 678; suggested in- for Code § that matters dehors sistent structions, e.g., McClung, Jury Charges see testing sufficiency taken into account (Rev.Ed.1990) Texas Practice Criminal White, J., “against charge.” entire dis- Blackwell, 15; & Texas Crimi- McCormick 678, senting, at 64.01, Forms 8 Texas Practice 304- nal dissenting opinions concurring and Texas, 303; State Bar of Texas Criminal Jones, causes, Walker two and 7.02(a)(2) these Jury Charges, Pattern CPJC Garrett, beyond the issue as in reach (1975); well Penal Branch’s Texas Annotated widely (3d Ed.1974) 257, 7.02(a)(2); to reveal Oates of an instruction on Code concepts underlying divergent fundamental 67 Tex.Cr.R. 149 S.W. Hunter v. purpose (1912); and function of a trial court Tex. applicable charging on the law 129 S.W. Cr.R. (Tex. See Brown v. given they surface at

facts of a case. That J., concurring Cr.App.1986) (Campbell, hundred and and this late date —more than one dissenting, at fifty years since rules were author- basic application paragraph, as did the light dissenting opinion came of his in the instant 5. In significant Judge deem Miller must intent in Garrett. instruction on transferred that in Jones the abstract definition fact not, manner(s) specific of conduct enumerated charging need instrument Because a not, allege i.e., “solicits, ordinarily 7.02(a)(2), encourages, will. di- and thus in § responsibility under of criminal theory rects, aids, attempts to aid” or some Code, 7.02, 7.01 Y.T.C.A. §§ thereof, may permit it to find combination obliged to submit instructions trial court is John- responsibility. criminal alternative the discrete raised that conform to Bar State son v. n. supra, at Merely reproduce ab- by the evidence.6 McClung, 7.02(a)(2);7 supra, § 7.01 and 7.02 amounts portions of §§ 7.01, 4.8 para supra, at PC Sec. the law to the facts to no by made pronouncements Reminiscent court “The failure of the whatsoever. of Texas when it was specific Supreme Court apply the law to [is] equivalent giving guidance no criminal exercising appellate jurisdiction 2, ante, appellant’s lia- basic matters, see note are verities law Romo, (Onion, P.J., supra dissent- bility.” Judge by by Odom and followed stated ing, Seventies, during Moreover, raises that when court, “The must come from the criminally responsible for con- defendant jury, by be decided facts must another, taking duct of “shortcuts” jury properly, instruct application paragraph by positing that de- apply the law to the facts raised must the offense “either act- fendant committed * * * * the evidence. party or ‘anoth- alone or with [named * * * * There should be but one con- party to the offense as that term er’] trolling application of the law to defined” mislead the is hereinbefore will facts, and that should come jury if there is no evidence that the offense impairs the the court. Its absence conduct; committed alone nor and, therefore, sufficiently right inform to trial will it 6. The indictment in this cause then knowingly, commit theft[.]” some with consuming parties, Tr. The fifth adding mends subparagraphs [named] In Among the conduct responsible nally offense." ages, offense committed if, person to commit the offense. Mere offense is sion alone will not constitute commission of the are A "All facts, solely in terms of the pertinent acting guilty person of the offense. A part, a directs, aids, responsible, viz; persons paragraph there owner short "did then and the first four numbered with intent to three subparagraphs, committed without viz; is part, open converse instruction. deal acting together thereof, are another for criminally responsible legal purports party that or abstractly or offense, by attempts size by by there, intentionally pattern enter a promote effective consent to an offense if the public, person his own both. of abstract pages, conduct of another one a to an offense who to he which he is crimi- allege simply with the law of apply in the commis- solicits, encour- to aid charge with is the last two or assist the party conduct, paragraphs, indictment, criminally the law to the other presence intent to matters recom- for an to an 48. by 8.Having cation dence, (emphasis 2 Or beyond with intent vidual, offense acted with intent 5 Or tempted CD to commit the commission of the aging) ally a reasonable offense committed if, other either commission of the sion of tempts to aid. Therefore, “Now if acting XY, you said_did_" or person paragraph viz; person encouraged by his own conduct encourages or directs or aids or at- (directing) (aiding) (attempting knowingly offense, set XY ... a reasonable doubt charged, ^{[******] [******]} McClung similarly suggests to aid. with intent you forth an abstract statement original) to will_” if doubt that ..: to commit the offense. promote find you criminally responsible solicited based and that the as defined offense of cause the or directed or aided or offense CD to from the evidence believe from the evidence offense, the conduct of another promote selectively or assist the commis- promote 5_to that the defendant CD did intention- causing death of an indi- _, above, defendant, AB, or solicits or assist the commit the on the evi- or, acting assist the an and that (encour- beyond to for an of law appli- death 2 the aid) at- definition, injure (Tex.Cr.App. to is ‘calculated 1981). defendant,’ (Art. 36.19, rights of the su- by jury. a trial

pra) to sufficiency Since of evidence tested Boozer v. charge given, of the court as charge is not of the It function (Tex.Cr. merely misleading confusing to avoid App.1984), failure or refusal of court charge it is the of the jury: function apply properly facts A prevent lead and confusion. acquittal case ultimate risks an charge apply does the law to the that not defendant, just in this cause and as ordered lead the thresh- fails to facts in Jones.9 duty: fact its to decide those is- old of A that leaves sues. in the judg- For these I concur reasons solely of the law to hands ment of Court. guard not partisan advocates does partisan the confusion that such MALONEY, J., joins. inspire. claims Because a should confusion, affirmatively dispel lead and MILLER, dissenting. apply not that does and because holding majority’s that I dissent give to the facts fails to such sufficiency case guidance, error of this character should by the judged solely contents at bar will be subject per se rule.” remain court’s 18, at Williams the contents Williams v. (Tex.Cr.App.1977); Accord: as whole. (Tex.Cr.App. pleadings n. 6 as an Whether tender an issue ele- offense, contemplates ment of the or the law it (b) provided "Except Subsection of this e.g., germane guilt, complicity, as a matter causation, section, cetera, person not commit offense does principle governing et knowingly, recklessly, intentionally, unless Any issue submitted to the the same: factual engages in negligence conduct with criminal by, be framed must be raised and should requires." as the to, with and the evidence in offense accordance limited definition of Code, 6.02(a). Thus the "un- V.T.C.A.Penal Blackwell, See McCormick & Texas the case. comprises recognizes "conduct” less” clause 80.01, Forms and Trial Manual Criminal types must distin- distinct elements Texas Practice ff. proof require- guished confusing the to avoid does not constitute an offense un- "Conduct viz; states, respective culpable mental ments of it is as an offense statute [or less defined conduct,” surround- "circumstances “nature of Code, 1.03(a). valid V.T.C.A. law]." other of conduct.” See conduct” "result means an act or omission its “'Conduct’ (Tex.Cr.App. Lugo-Lugo Id., 1.07(a)(8). accompanying mental state.” J., 86-87). Clinton, dissenting, 1983) (also usually penal an offense terms statute defines aspect culpable metal state to be The correct conduct," required culpa- forbidden "the of "the depends applied on and identified "any required bility,” that and result” constitute type called for in the of of conduct the element Id., particular of offense. elements alleged. statutory offense definition 1.07(a)(13). beginning of Thus with Title 4 the 36, 87-88; State, 704 S.W.2d 38 Alvarado v. throughout is to Code the format intro- example, appropri- (Tex.Cr.App.1985). the For point- with this definition of an offense duce the culpable for assaultive offenses state ate mental person opening: "A commits an offense if ed elderly causing injury a child or such as ...,” by a statement that identifies followed of conduct” ele- “result invalid individual is the ment, course, Of elements of that offense. essential State, Haggins e.g., 828 v. may provide more than the statute State, sometimes 1990); (Tex.Cr.App. Kelly v. committing the same manner and means of one 1988); (Tex.Cr.App. Alvarado v. 238-239 offense. supra, 704 S.W.2d Accordingly, the Court has admonished that changed in sub- The lessons here have not defining informing jury taught the of the law the in Supreme Court of Texas stance since the judge beginning must take care to at issue the trial offense the until them in criminal cases from 2, ante; only portion e.g., of again the definition the v. that of cf. Edwards set out 1876. See n. (1924); State, alleged charging in instrument and 259 S.W. 578 the 96 Tex.Cr.R. offense State, State, 27, 148 S.W. v. 537 v. Tex.Cr.R. evidence. Dowden Smith 67 raised (Tex.Cr.App.1976); see Boston 700-701 7 v. S.W.2d

255 (Tex.Cr. State, facially required and parties 717 608 doctrine of Boozer v. S.W.2d princi- that the defendant be convicted as a App.1986), S.W.2d Benson 661 708 application pal, the second/alternative (Tex.Cr.App.1983), Ortega v. 668 misapplied parties the paragraph law of (Tex.Cr.App.1983), S.W.2d 701 Garrett v. required the and that defendant be convict- (Tex.Cr.App.1986) State, 749 S.W.2d 784 principal. ed as a While we could have (opinion rehearing), on Arceneaux silently of applied parties the law (Tex.Cr.App.1990), and S.W.2d application paragraph the first and found (Tex. Nickerson v. sufficient, we that instead found proposition stand for Cr.App.1990), the that of attempted application the of the law sufficiency of the measured evidence “be application in parties paragraph the second charge, jury interpret the which we application the demonstrated that first charge, to mean the entire omit- [footnote paragraph alone offered the stood Garrett, 749 S.W.2d at 802. ted]” theory of the case that the defen- True, sufficiency solely we did measure guilty primary dant was actor. Thus application Garrett, in paragraph the accepted proving the State the burden of Nickerson, S.W.2d guilt the defendant’s without the benefit of 887, but, explained as in those cases and para- of in either parties application the law Nickerson, is the proper others cited graph. analytical procedure application when Nickerson, upon Thus clos- Garrett and heightens increases paragraph scrutiny, support er not meant to are proof States burden and the either proposition look that all cases we will overtly, silently acquiesces solely application paragraph in deter- heightenment. In Garrett this occurred mining sufficiency. theory guilt when the State’s rested entirely factually on the This differ judice doctrine of transferred cause sub tent, application Garrett, Nickerson, did paragraph ent from and Jones (Tex.Cr.App. mention or allude to MRH the doctrine trans- intent, day). parties ferred instructed the denied this Here the law application portion on that contained in abstract after paragraph, thus, along application paragraph but with the rest of portion instructed the its contents base verdict of the abstract given application charge, on is presumed considered before paragraph. accepted Thus in the the State the when follow instructions proving guilt burden of since is noth the defendant’s there suggest without the benefit of the law of transfer- otherwise intent, (such specifically wording application para red since the as jury was graph heightens instructed to reach a the State’s verdict without con- burden ).1 Moreover, sidering the law transferred intent. In in Garrett and Nickerson Jones, guilt the State’s the abstract Nickerson rest- both Garrett in entirely charges ed on the theories of transferred law instructed tent and the law of came specifical portion application paragraph in the abstract which had para- pre ly jury’s first of directed attention to the two ap- graphs ceding when did not mention or allude instructions majority’s application as a unless misin- 1. If idea is that an consider the whole facially otherwise, thus, paragraph a State’s contains from a suffi- structed to do primary guilt of higher the State a as a actor holds ciency standpoint, otherwise unless the state proof application burden than para- that the evidenced an intent facially paragraph a State’s contains meaning, graph particular or narrowed have guilt party, then at least we are closer to a whole we too should consider the Still, meeting this matter. minds in jury's considering whether verdict because of the nature and character Virginia, 443 U.S. rational one. Jackson majority I would be court’s believe the 99 S.Ct. 61 L.Ed.2d wrong supposed idea. in that petition discretionary for re- There was “no On State’s plying the law to the facts. remanded to the granted view: Court ... way [ ] Appeals. refer to the ab- be construed to [could] definition, ‘reading the ... even Garrett, ...” charge as a whole’ there n. 6. In this charge limiting the language

no definitions consideration of abstract

jury’s “foregoing” in- “preceding” or charge. Thus I would

structions considering the sufficient hold the evidence KITCHENS, Joseph Appellant, William majority charge as a whole. Because otherwise, I dissent. holds Texas, Appellee. STATE No. 69655. McCORMICK, Presiding Judge, dissenting. Texas, Appeals of of Criminal En Banc. my dissent

For the reasons set forth Stephens, parte in Ex Haron ing opinion 30, 1991. Oct. I dissent (Tex.Cr.App.1991), Rehearing Dec. Denied acquittal. entry of the order WHITE, dissenting. my forth in dissent-

For the reasons set Jones v.

ing opinion 1991) (motion rehear- (Tex.Cr.App., respectfully I dis- day), overruled opinion.

sent Ann

Carol CROWLEY Texas.

STATE 0745-91.

No. Appeals

Court of Criminal

En Banc.

Sept.

Case Details

Case Name: Walker v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 18, 1991

Citation: 823 S.W.2d 247

Docket Number: 896-89

Court Abbreviation: Tex. Crim. App.