observing that ordinarily, "[i]f the same evidence raising a fact issue on self-defense also raises an issue on 'sudden passion', then it must also be true that ... *321when the State's evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion"
How later courts described this case
- observing that ordinarily, "[i]f the same evidence raising a fact issue on self-defense also raises an issue on 'sudden passion', then it must also be true that ... *321when the State's evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion"
- “It would be ‘a rare instance’ when issues of self-defense do not also raise issues of sudden passion,” and “trial courts, on request, are now generally well advised to give both instructions.”
- concerned with sufficiency of a Jury's finding on the defensive issue of self-def^ese and determining that the jury's verdict did not rely upon the disputed and rejected fact
Written by the judges who cited it.
The opinion
ERIC ANDELL,
Justice, dissenting.
I respectfully dissent. Although I join in the en banc majority’s opinion in all respects regarding whether the trial court committed errors, I do not agree with the majority’s conclusion in point of error five that the failure to instruct the jury on voluntary manslaughter was harmless. In addition, I express no opinion on point of error four regarding the factual sufficiency of the evidence on self-defense.
Because Code of Criminal Procedure article 36.19 provides for a harmless-error analysis for charge error, we do not apply Texas Rule of Appellate Procedure 44.2(b). Tex.Code CRiM. P. ANN. art. 36.19 (Vernon 1981). Article 36.19 states:
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.
Tex.Code Crim. P. Ann. art. 36.19 (Vernon 1981).
The Court of Criminal Appeals’ major interpretations of article 36.19 are found in Arline v. State and Almanza v. State. Arline, 721 S.W.2d 348 (Tex.Crim.App.1986); Almanza, 686 S.W.2d 157 (Tex.Crim.App.1984 & 1985). In Almanza, the Court of Criminal Appeals observed that if the trial court’s charge error was subject to a timely objection at trial, “then reversal is required if the error is ‘calculated to injure the rights of the defendant’ which means no more than that there must be some harm to the accused from the error.” Al-manza, 686 S.W.2d at 171 . Essentially, this pronouncement means that under the “some harm” analysis, “[a]n error which has been properly preserved by objection will call for reversal as long as the error is not harmless.” Id.
In Arline, the Court of Criminal Appeals explained the “some harm” analysis in Almanza. The Court said that the defendant must have suffered “ ‘some’ actual, rather than theoretical, harm from the error.” Arline, 721 S.W.2d at 351 . “[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.” Id. We determine the actual degree of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the ar *533 gument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171 .
From this record, it is obvious appellant sustained some harm from the trial court’s refusal to submit a charge on voluntary manslaughter since the jury could have convicted him on that lesser included offense. Accordingly, I would sustain point of error five and not reach point of error four.