holding that failure to object to an unconstitutional jury charge does not waive error
How later courts described this case
- holding that failure to object to an unconstitutional jury charge does not waive error
- “if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’”
- superseding Almanza on the issues of error preservation and harm analysis in cases involving constitutional error
- discussing the application of statutory standards of review under prior version of Rule 44.2
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Appellant was convicted by a jury of aggravated sexual assault. The jury also assessed punishment at seventeen (17) years confinement. The fourteenth Court of Appeals affirmed in a published opinion.
*788
Rodriguez v. State,
750 S.W.2d 267 (Tex.App.1988).
In affirming the trial court’s judgment, the Court of Appeals found that there was no objection on the constitutional issues raised by appellant on appeal. The Court of Appeals then applied a harm analysis consistent with that set forth in
Almanza v. State,
686 S.W.2d 157 (Tex.Cr.App.1984), and found that appellant had not suffered egregious harm which deprived him of a fair and impartial trial.
After the Court of Appeals decided the instant appeal, this Court delivered its opinion on the Court’s own motion for rehearing in
Rose v. State,
752 S.W.2d 529 (Tex.Cr.App.1988). On rehearing, this Court held that Rule 81(b)(2), Tex.R.App.Pro., and not the tests set out in
Almanza,
supra, govern in deciding whether this kind of charge error was harmless to the defendant. This Court further held that failure to object to the unconstitutional jury charge did not waive error. Since an objection was not required, it is of no consequence in the instant case that appellant’s point of error on appeal was not raised at trial.
Accordingly, this cause is remanded to the Court of Appeals so that it may analyze the error pursuant to Rule 81(b)(2), supra. See also
Haynie v. State
751 S.W.2d 878 (Tex.Cr .App.1988).
The judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.
ONION, P.J., dissents and also dissents to the remand.
TEAGUE, J., dissents to the remand.