Mann v. State

KELLER, Judge,

dissenting.

The majority determines that the appellate court should have employed an Almanza analysis in addressing the jury charge error in the instant case. Since the court of appeals instead used Rule 81(b)(2), the majority returns the cause to that court for reconsideration. Because my understanding of ap *643 pellant’s claim differs somewhat from that of the majority, I respectfully dissent.

I perceive appellant’s argument to be that the jury charge error was structural and, as such, not subject to a harm analysis at all. He does not take issue with the type of harm analysis the court of appeals applied, so when the majority decides that Almanza is appropriate, it has decided a question that has not been posed by appellant. And in fact, it would have done appellant no good to argue that the appellate court used the wrong harm analysis because the court had already used the standard most favorable to appellant in evaluating harmlessness.

I agree with the majority’s implicit holding that the error in this case was not of a structural nature. The majority says, however, that the difference between this case and Sullivan v. Louisiana, 508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993), is that the charge in Sullivan was defective in its entirety whereas, except for the isolated error, reasonable doubt was defined correctly throughout the charge in the present case. This is true, but I do not think it is the crucial difference in the two cases.

The charge in Sullivan was constitutionally deficient because it told the jury that the burden of proof was less than “beyond a reasonable doubt.” 508 U.S. at 277-278 , 113 S.Ct. at 2080-2081 , 124 L.Ed.2d at 188 (no jury verdict obtained because instruction insufficient under Cage) and 278-281, 113 S.Ct. at 2081-2083 , 124 L.Ed.2d at 189-190 (absence of jury verdict means error not subject to a harm analysis); Cage v. Louisiana, 498 U.S. 39, 41 , 111 S.Ct. 328, 329-330 , 112 L.Ed.2d 339 (1990)(instruction permitted finding of guilt upon “a degree of proof below that required by the Due Process Clause”). The result was that the jury did not determine the defendant’s guilt beyond a reasonable doubt. The error was structural because it resulted in what amounted to an incomplete verdict.

The jury in the present case was instructed as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of September, 1993, in Hood County, Texas [the appellant], did intentionally or knowingly or recklessly cause bodily injury to [victim] by striking her with a shovel and that either (1) the shovel was a deadly weapon, as that term has been defined herein or, (2) the injuries inflicted, if any, were serious bodily injuries, but you further find and believe from the evidence, or you have a reasonable doubt thereof, then you will find the defendant guilty of Aggravated Assault.

(emphasis added). I do not understand the above charge to instruct the jurors that they could find appellant guilty “even if they have a reasonable doubt as to one of the elements of the offense.” Op. at-. The erroneous instruction does not tell the jury to do something contrary to the law; it is just a confusing, incomplete sentence. Because the charge does not instruct the jury that the burden of proof is less than “beyond a reasonable doubt,” there is no reason to think that when the jury returned its verdict, the decision to convict was reached upon a misunderstanding of the standard of proof.

As the court of appeals found the error harmless under a standard of review more beneficial to appellant than the standard propounded by the majority, that court must necessarily again find the error harmless. For this reason, rather than remanding the ease to the court of appeals, I would simply affirm the judgment.

McCORMICK, P.J., and HOLLAND and WOMACK, JJ., join.