Posey v. State

MEYERS, Judge,

dissenting.

The majority holds a defensive issue does not become “applicable to the ease” until a jury charge on the issue is requested by the defendant. This holding stands in stark contrast to recent precedent which rejects the notion that parties are Responsible for ensuring that the charge embodies their respective “theories of the case.” See Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997). There are other problems with the majority’s holding. I dissent.

I.

Code of Criminal Procedure article 36.14, Charge of the Court, provides “the judge shall ... deliver to the jury ... a written charge distinctly setting forth the law applicable to the case.” The majority says a defensive issue does not become “applicable to the case” unless the defendant either requests an instruction on that issue or objects to the omission of an instruction. Posey v. State, 966 S.W.2d. 57, 62 (Tex.Crim.App. 1998). This Court has never articulated such a principle. 1 The responsibility for deciding what law is applicable to the case falls squarely on the shoulders of the trial judge. Parties can attempt to have an impact on what law will be applicable to the case through the presentation of evidence, and by requesting instructions on issues raised thereby. But an issue does not become “applicable to the case” by virtue of a party requesting an instruction on it at the end of the presentation of evidence; rather law becomes applicable to the case through-out the course of trial, when raised by the evidence. 2

*72 The majority finds it “worth mentioning that the author of Almanza — the honorable Judge Clinton — pointed out in [Walker v. State, 823 S.W.2d 247 , 249-50 fh. 2 (Tex.Crim.App.1991)(Clinton, J., concurring), cert. denied, 503 U.S. 939 , 112 S.Ct. 1481 , 117 L.Ed.2d 624 (1992) ] that the statutory ‘precursors’ to Article 36.19 had been interpreted as not requiring a trial court ‘to give instructions not asked for by’ a party and a trial court’s failure to do so is not ‘error.’ ” Posey, at 64 fn. 14. Judge Clinton’s concurring opinion in Walker is worth mentioning here for its historical view of article 36.14, which supports, rather than contradicts, the principle that the trial court, not the parties, decides what law is “applicable to the ease” based on the evidence. Following is an extensive excerpt from Judge Clinton’s discussion:

As the language [of article 36.14] suggests, that a trial court is to charge the jury on the law applicable to the facts of the case is a requisite prescribed in like terms by Old Code articles 594-595. See generally Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985)(Opinion on Rehearing, at 161). But there were several precursors.

First, in an effort to placate restless “Texians,” the congress of the State of Coahuila and Texas offered a “Plan for the Better Regulation of the Administration of Justice in Texas;” “Of the Trial Criminal Plenario” provided that after all testimony and argument by the parties, “The judge shall then make such observations upon the evidence and facts deduced in the trial as he may think proper and necessary for the instruction of the jury, who shall then retire for deliberation.” Decree No. 277, article 72, (1834), 1 Gammel’s Laws of Texas 364, at 372 (“Gammel’s”).

The following year, however, Texians created a Provisional Government of Texas with a plan of governance that, inter alia, implicitly rejected the “Texas Plan” in favor of their own preference for common law, viz:

“All trials shall be by jury, and in criminal eases the proceedings shall be regulated and conducted upon the principles of the common law of England[.]”

Plan and Powers of the Provisional Government of Texas, article VII (Nov. 13, 1835), 1 Gammel’s 911. Similarly the Constitution of the Republic directed Congress to introduce by statute the common law of England, and mandated that “in all criminal cases, the common law shall be the rule of decision.” Article IV, § 13, Id., at 1074. Congress soon passed an Act to establish jurisdiction and powers of district courts, § 43 of which provided:

“No judge of any of said courts shall charge the jury as to the weight of the evidence in any cause civil or criminal, but such judge may sum up the testimony, and shall charge the jury as to any matter of law arising thereon [.]”

Act of December 22, 1836, § 43, Id., 1258, at 1269-1270.

Shortly after gaining statehood the Legislature passed an Act to Regulate Proceedings in District Courts, § 99 of which provided in pertinent part, viz:

“... After the argument of a cause, and before the jury retires from the bar, the judge may deliver a charge to the jury, but under the following restrictions and regulations: the judge shall not in any ease, civil or criminal, charge or [comment] on the weight of the evidence or testimony, and he shall so frame his charge as to submit questions of facts to the decision of the jury, and he shall *73 decide on and instruct them as to the law arising on the facts, [emphasis in original] distinctly separating all questions of law from questions of fact; and no judge shall, in any case, make any further charge, unless on the application of the jury or a party.”

Act of May 13, 1846, § 99, 2 Gammels’ 1669, at 1696. Under that statement of requisites the Supreme Court of Texas would say:

“It, undoubtedly, was ... the duty of the Judge, to give in charge to the jury the law of the case, without regard to what had, or had not, been read to them by counsel, either for or against the prisoner. * ⅝ * * The Judge is the organ and expositor of the law, and is placed on the bench to explain it to the jury. It is not only his privilege, in all cases, but his duty, when called on, to state what the law is. In the language of the Court of Appeals of Kentucky, ‘If the Judge had not the right to decide on the law, error, confusion, uncertainty and licentiousness would characterize the criminal trial; and the safety of the accused might be as much endangered, as the stability of public justice certainly would be,’ & c. — 3 J.J. Marshall, 149.

The jury aré the exclusive judges of the facts. The Judge may not charge them as to the weight of evidence. 1 Stat. 209 , Sec. 43; Acts of 1846, 390. It is their peculiar and exclusive province to weigh the evidence; and it is their duty to find the facts alone from the evidence [emphasis in original]; and to look for them in no other quarter whatever. For the law, it is their duty to look to the court. In the present case, they were not authorized to give the slightest weight to any admission or statements of counsel as to the facts. The prisoner’s counsel had no authority to make any admission or statement, to supply the place or have the force of evidence against him. No confession of theirs could bind or affect him. Their admissions could not, in law, prejudice or affect his rights; nor could they be in anywise jeopardized by the assumption of any grounds whatever, upon which his defence may have been placed by his counsel. Whether those grounds were correct or incorrect, true or false, was wholly immaterial. That was not the question for the consideration of the jury, whose duty it was to decide the question of guilt or innocence, upon the law as given them by the court, and the evidence as given by the witnesses [emphasis in original], irrespective of any admissions by the prisoner’s counsel, or any grounds upon which they may have rested his defence.”

Neis v. The State, 2 Tex. 280 , at 281-283 (1847) (original emphasis).

Still applying the 1846 statute, in similar vein the Supreme Court explained:

“The error assigned in the charge of the court, is, in substance, that it does not distinguish and define the degrees of murder. But it must be observed that the mere omission to give instructions is not error. The court is not bound in any case to give instructions not asked for by the party. If the charge of the court was not satisfactory, it was the right of the defendant, or his counsel, to ask such instructions as he thought proper.... It is no objection to the charge of the court, that it supposes the state of fact which the evidence showed really to exist, and deduced the legal conclusion applicable to such state of facts. That is precisely what every charge should do. That is the design and purpose of giving instructions to the jury; it is to inform them respecting the law applicable to the particular case in hand and the more exactly the charge is adapted to the very case, the more likely will the jury be to arrive at a correct conclusion in the application of the law to the fact. Instruction beyond what the facts call for can never subserve any beneficial purpose; and may mislead. The charge should be framed and is to be considered in reference to the facts of the case. [emphasis in original] And we are of opinion that there was nothing in the evidence in this case to call for an exposition of the law upon the degrees of murder.”

*74 O’Connell v. The State, 18 Tex. 343, at 363 (1857). Accord: Atkinson v. The State, 20 Tex. 522, at 529 (1857):

“The court below, upon these facts, instructed the jury as to the law, by reading them the charge, verbatim, in the Jordan case [emphasis in original] ( 10 Tex. 492 -4), and by giving them other charges, as asked by counsel for the prisoner, on the subjects of manslaughter, self-defense, and reasonable doubts. The question is, whether or not this charge of the court, with reference to the facts of this case, was not calculated to mislead the jury. The great jurists of England and America have never been able to devise a charge which would be applicable to every ease. Indeed, so vain is the task, it has never been essayed. A charge, which may properly direct the minds of the jury to the true point in one case, may mislead the jury in another, where a different turning point is indicated by the facts of it. It may be erroneous, too, by failing to present the distinctions between the different grades of the offense, where the facts, conflicting and leading to different conclusions, require such distinctions to be drawn, so as to enable the jury to determine to which grade the offense belongs. Mitchells’ Case. 5 Yerg. 350. By neglecting this, the jury may as easily be misled, as in any other way.”

Id., at 529.

The Old Code prescriptions for a charge to the jury were enacted against that background of prior statutes and previous decisions, and we are entitled to presume that the legislature was aware of those judicial constructions and had them in mind as it mandated trial judges to deliver “a written charge distinctly setting forth the law applicable to the case.” [emphasis in original] See Code Construction Act, 3 V.T.C.A., Government Code § 311.023.

Walker, 823 S.W.2d at 249 -51 n. 2 (Clinton, J., concurring) (emphasis added except where indicated otherwise). Even a cursory reading of the above discussion reflects that it has always been, under all “precursors” to article 36.14, the province of the judge to instruct the jury on the law as raised by the evidence, irrespective of requests or objections by the parties. 3

These principles are consistent with this Court’s recent holding that, for purposes of measuring legal sufficiency of the evidence, we no longer view the jury charge as reflecting what the parties see as their respective theories of the case, but we now recognize that in every case there is a “hypothetically correct charge” accurately setting forth the law applicable thereto. See Malik, supra. The hypothetically correct charge does not appear to be dependent upon requests or objections by the parties.

Before Malik , the reviewing court viewed the State’s theory of the case according to what the State elected to include in the charge. Nickerson v. State, 782 S.W.2d 887 (Tex.Crim.App.1990). Unless the State objected to the charge, we presumed the jury was correctly instructed on the theories advanced by the State:

Absent an objection by the State, analysis of the State’s theory of guilt must be approached from a viewing of the charge. While the evidence presented at trial may suggest alternate theories of criminal culpability, we reject them as a means to sustain the conviction. Because, in the case at bar, the State neither objected to the jury charge nor asked for a special charge, the charge stands technically correct and sound relevant to the theories of criminal responsibility charged, viz: appellant engaging in criminal conduct as primary actor, or appellant engaging in criminal conduct as primary actor and as a party.

*75 Id. at 890 ; see also Stephens v. State, 717 S.W.2d 338, 341 (Tex.Crim.App.1986)(where State “requested no special charges and made no objections to the court’s charge ... [w]e may only assume therefore that the charge adequately represented the theory of guilt upon which the State prosecuted appellant”).

That reasoning was rejected by a majority of this Court in favor of the idea that, at least with respect to the theory of prosecution, there is for each ease a “hypothetically correct charge.” 4 See Malik, supra. An appellate court can determine the theory of prosecution, and accordingly, the law applicable to the case, based upon the evidence presented, so as to fashion a “hypothetically correct charge.” But as to defensive theories, the majority says, law only becomes “applicable to the case” by virtue of a defendant’s request that it be included in the charge. 5

II.

The majority expends notable effort attempting to dismiss or somehow distinguish Williams v. State, 851 S.W.2d 282 (Tex.Crim.App.1993). They might as well overrule it because it can’t be distinguished. In Williams , the defendant was convicted of aggravated kidnapping. At punishment the jury was instructed that kidnapping was a first degree felony. Section 20.04(b) of the Penal Code then applicable provided:

An offense under this section is a felony of the first degree unless the accused voluntarily releases the victim in a safe place, in which event it is a felony of the second degree.

Id. at 284 (quoting applicable Code provision). We agreed with the State that we should “construe section 20.04(b) to operate like a legal defense, with the initial burden of production on the accused, but the ultimate burden of persuasion on the State.” Id. at 286 . We observed that “[sjtrictly speaking” the issue was not a “ ‘ground of defense’ in the sense that it excuses or justifies commission of the offense.” Rather, it only had the effect of mitigating punishment. We nevertheless determined to treat it like a defensive issue, and “[a]s is the case with a defense issue” the accused had the threshold burden of production, and then once the issue is raised the burden of persuasion shifts to the State to show the place the victim was released was not safe. We concluded there was evidence sufficient to support an inference that the place of release was safe, but the State had failed to offer any evidence that the place of release was not safe; therefore, the issue should have been submitted to the jury and the trial court’s failure to do so was error. Id. at 286-87 . Having found “error in the charge,” due to the omission of the defensive issue, we said the next step was to apply a harm analysis under Almanza . We held the defendant had not suffered egregious harm. In reaching this conclusion, we considered the primary defenses offered by the defendant dining trial (misidentification and alibi), the fact the issue of safe place was “not a hotly-contested issue at trial” and the fact the defense did not even mention the issue in closing argument. 6 Id. at 289 .

*76 III.

Finally, the majority’s interpretation of Almanza v. State, 686 S.W.2d 157 (1985)(opinion on reh’g), is wrong. The majority says omission of a defensive issue in the charge is not “error” in the charge absent a request or objection. To the contrary, Almanza specifically referred to omissions of defensive theories in the charge absent a request or objection. Discussing the determination of egregious error (the analysis which does not come into play unless the defendant failed to object to the charge), this Court in Almanza stated:

‘... in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State’s case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State’s theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error....’

Almanza, 686 S.W.2d at 173 -74 (quoting Davis v. State, 28 Tex.App. 542, 13 S.W. 994, 995 (1890), writ of error dism’d, 139 U.S. 651 , 11 S.Ct. 675 , 35 L.Ed. 300 (1891))(emphasis added).

The State does not contend the Court of Appeals’ erred in the manner in which it *77 conducted its egregious harm analysis under Almanza ; rather the State’s sole argument is that no such analysis should have been conducted. 7 Disagreeing with the State’s sole contention, I would affirm the Court of Appeals.

BAIRD and OVERSTREET, JJ., join.

. The majority says its holding "is consistent with many cases from this Court deciding that which defensive issues to request are strategic decisions generally left to the lawyer and client.” Posey , slip op. at 63 (emphasis added). In support of this assertion, the majority cites a footnote from a single case, Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App.1992). In that case, we concluded counsel was ineffective by failing to request an instruction on the defensive issue of necessity where it was raised by the evidence. The dissenters contended the Court should not decide the issue on direct appeal, but a habeas corpus proceeding would be more appropriate to determine if defense counsel "might have intentionally opted not to request and argue a necessity defense” due to the implausibility of the defendant’s testimony. Id. at 951 (Benavides, J., joined by McCormick, P.J. and White, J., dissenting). The majority in Vasquez thus rejected the notion that, although raised by the evidence, counsel might have chosen not to urge the defense.

. A trial court’s rulings made through-out the course of trial are always viewed in light of the "law applicable to the case." See, e.g., Rhodes v. State, 945 S.W.2d 115 , 120 & n. 3 (Tex.Crim. App.), cert. denied, -U.S. -, 118 S.Ct. 236 , 139 L.Ed.2d 167 (1997)(affirming Court of Appeals’ upholding of trial court’s ruling on motion to suppress, noting that Court of Appeals’ decision was found evidence admissible on "theory of law, applicable to the case” but not argued *72 before trial court); McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App.), cert. denied, — U.S. -, 118 S.Ct. 125 , 139 L.Ed.2d 75 (1997)(trial court’s decision will be sustained if correct on any theory of “law applicable to the case”, especially with regard to admission of evidence); At kinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App.1996)(stating "law applicable to a case plainly includes laws from any source concerning which a jury instruction is necessary for resolution of the factual issues presented”); Jones v. State, 833 S.W.2d 118, 125 (Tex.Crim.App.1992), cer t. denied, 507 U.S. 921 , 113 S.Ct 1285 , 122 L.Ed.2d 678 (1993)(trial court’s evi-dentiary ruling should not be disturbed on appeal if correct on any theory of "law applicable to the case”). If law does not become "applicable to the case” until the end of trial when the parties make their respective objections and requests, how can the trial judge possibly make rulings based on the law "applicable to the case?”

. The isolated portion of Judge Clinton’s discussion in Walker which the majority says stands for the proposition “that the statutory 'precursors’ to Article 36.19 had been interpreted as not requiring a trial court 'to give instructions not asked for by’ a party and a trial court’s failure to do so is not ‘error,’ " when read in context, shows that the requested charge pertained to a matter not raised by the evidence. Walker, 823 S.W.2d at 249 -51 n. 2 (Clinton, J., concurring)("there was nothing in the evidence in this case to call for an exposition of the law upon [which the defendant requested]”).

. The majority’s holding today is consistent, however, with at least one other recent case restricting a trial court’s discretion to decide what law is applicable to the case and instructing the jury accordingly. See Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App.1997)(holding trial court may not submit charge on lesser included offense except when test established in Royster, Aguilar and Rousseau is met) compare id. (McCormick, P.J., joined by Keller and Holland, J.J., dissenting); id. (Meyers, J., dissenting).

. Apparently, the law regarding accomplice witnesses and anti-parties become "applicable to the case" even without the defendant’s request for an instruction or objection to the charge, even though these instructions inure to the benefit of the defendant. See, e.g., Saunders v. State, 817 S.W.2d 688 (Tex.Crim.App.1991)(omission of instruction on accomplice witness testimony is error and subject to Almanza analysis, even absent objection to charge); Solis v. State, 792 S.W.2d 95 (Tex.Crim.App.1990). The majority does not explain on what basis a meaningful distinction can be made, for purposes of determining the existence of jury charge error, between the omission of defensive issues and the omission of these other issues that inure to the benefit of the defendant.

.Consistent with these considerations, the failure of the defendant to request an instruction on a defensive issue would weigh against a finding of egregious harm.

The majority concedes Williams “held the trial court erred in not sua sponte instructing the jury on the defensive issue of ‘release in a safe place’ *76 at the punishment phase of an aggravated kidnapping prosecution,” Posey, at 62, but nevertheless views Williams as having no precedential value because the Williams Court "more or less assumed ... without any discussion” that the trial court had a duty to sua sponte submit an instruction on the defensive issue. Id. Despite the amount of discussion devoted to the issue, the fact remains Williams is directly contrary to the majority’s holding. The majority reasons that "Almanza does not apply unless the appellate court first finds 'error' in the jury charge” and a trial court does not commit "error” by failing to sua sponte instruct on a defensive issue. But Williams held there was "error” in the jury charge due to the omission of a defensive issue raised by the evidence.

The majority "declines” to follow Williams because it says Williams has been "effectively" "overruled by the Legislature.” Posey, at 63. The legislature does not "overrule” opinions of this Court; what they can do is pass legislation that will impact future cases. A subsequent legislative amendment of a provision at issue in a particular case has no bearing on the reasoning or holding of the Court as it pertained to the provision as written at the time of the opinion. Put another way, the Legislature's amendment of a penal code provision cannot possibly have any bearing on ancillary or general propositions of law pertaining to appellate review that were applied or discussed in a previous opinion. See Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992) see also Anderson v. State, 932 S.W.2d 502, 510 (Tex.Crim.App.1996), cert. denied - U.S. -, 117 S.Ct. 2517 , 138 L.Ed.2d 1019 (1997)(citing Grunsfeld for proposition of law even though code provision at issue in Grunsfeld was subsequently amended by legislature); Marin v. State, 891 S.W.2d 267, 272 (Tex.Crim.App.1994)(citing Grunsfeld for proposition of law regarding statutory construction even though code provision at issue in Grunsfeld was subsequently amended by legislature). Moreover, recognizing Williams' application here does not say anything about continued application of the code provision at issue there, but rather speaks to the broader notion applied in Williams that was unaffected by any subsequent penal code amendment — the application of Al-manza to the omission of a defensive issue (any defensive issue) in the absence of a request or an objection. The majority says the "Legislature’s amending Section 20.04(b) in response to this Court’s opinion in Williams is further evidence that the Legislature does not intend to impose a duty on trial courts to sua sponte instruct the jury on defensive issues.” Posey, at 63. The legislature amended section 20.04 after Williams to change "release in a safe place” from being treated like a defense to being treated like an affirmative defense. Spakes v. State, 913 S.W.2d 597 , 605 fn. 1 (Tex.Crim.App.1996)(Keller, L, dissenting joined by McCormick, P.J.). That is the “proposition of law” that was affected by the subsequent legislative amendment. This amendment is irrelevant, to the proposition that the omission of any defensive issue in the jury charge is error that is subject to an Almanza analysis. Certainly, if the Legislature wanted to have an impact on the duty of trial courts to sua sponte instruct on defensive issues, they would be more likely to amend Code of Criminal Procedure article 36.19, rather than a random penal code provision.

. In his concurring opinion Judge Womack says "[t]he questions are whether the charge distinctly set forth the law applicable to the case and, if it did not, whether the failure to do so in the absence of an objection or request deprived the appellant of a fair and impartial trial.” Posey, at 61 (Womack, J., concurring). Those were the questions before the Court of Appeals. “The questions” before this Court are those raised specifically in the petition for discretionary review. The State’s petition does not claim the Court of Appeals erred in its conclusion that appellant was deprived of a fair and impartial trial.