holding no harm resulted from charge error relating to one theory of guilt because evidence supported guilt under alternate theory
How later courts described this case
- holding no harm resulted from charge error relating to one theory of guilt because evidence supported guilt under alternate theory
Written by the judges who cited it.
The opinion
ANDELL, Justice,
dissenting.
I agree with the majority that the trial court’s denial of appellant’s request to instruct the jury concerning the voluntariness of his conduct was error. I respectfully dissent, however, to the majority’s holding that the error was harmless.
An Almanza 1 harm analysis was not conducted by the court in Brown v. State, 955 S.W.2d 276, 278-80 (Tex.Crim.App.1997), nor did the court remand the cause to the court of appeals for such an analysis. 2 The Court of Criminal Appeals held:
We hold that if the admitted evidence raises the issue of the conduct of the actor not being voluntary, then the jury shall be charged, when requested, on the issue of voluntariness. The trial court did not grant appellant’s request and the court of appeals correctly reversed the trial court.
Id. at 280 .
We are bound to follow the precedent of the Court of Criminal Appeals. I would therefore follow Brown and reverse the conviction and remand this cause for failure of the trial court to instruct the jury concerning the voluntariness of appellant’s conduct in shooting the decedent with a firearm.
I respectfully dissent.
. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).
. The court of appeals did not conduct a harm analysis of this error. See Brown v. State, 906 S.W.2d 565, 567-68 (Tex.App.—Houston [14th Dist.] 1995), aff'd, 955 S.W.2d 276 (Tex.Crim. App.1997). Further, neither the concurring justice in the court of appeals, nor the four dissenting justices in the Court of Criminal Appeals, called for a harm analysis. Brown, 906 S.W.2d at 568-69 ; Brown, 955 S.W.2d at 281-85 .