# Gelinas, James Henry

> Court of Criminal Appeals of Texas · May 15, 2013 · 398 S.W.3d 703

URL: https://www.frixlaw.com/law-library/cases/9812231

## Case

- **Full name:** James Henry GELINAS, Appellant v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 15, 2013
- **Citations:** 398 S.W.3d 703; 2013 Tex. Crim. App. LEXIS 756; 2013 WL 2157240
- **Precedential status:** Published
- **Opinion:** Concurrence by Keller
- **Judges:** Keasler, Keller, Hervey, Alcala, Cochran, Meyers, Price, Johnson, Womack
- **Cited by:** 236 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812231

## How later opinions describe it (automated extraction)

- concluding that the third factor of the Almanza analysis weighed in favor of finding no harm because even though the State’s closing argument contained a few misstatements of law, the State ultimately set out the correct law to the jury in its closing argument
- stating that the jury was not likely to be misled by error in the jury charge due to the obviousness of the error, the common sense of the jurors, the correct portion of the jury charge, and the correct statements of law in both parties’ closing arguments.
- holding that charge misstating law in application paragraph was erroneous but considering abstract part’s correct statement of law in assessing whether defendant was egregiously harmed by erroneous misstatement of law
- recognizing that inquiry relative to the egregious-harm test may involve discerning whether jury was misled 7 and considering whether “the very clarity of the error . . . may have mitigated any resulting harm”
- finding no egregious harm from improper statement of law in jury charge where common sense, the correct portion of the charge, and closing arguments of both prosecutor and defense attorney likely alerted the jury to the error and allowed it to properly apply the law

## Opinion text

KELLER, P.J.,
filed a concurring opinion.
I join the Court’s opinion. To its cogent refutation of the reasoning in Hutch, 1 I would add the point raised in my dissent in that case: the error in the application part of the jury instructions was to the defendant’s benefit. The application portion of the instructions 2 in Hutch essentially told the jury (incorrectly and to Hutch’s benefit) to disregard legally obtained evidence. It did not tell the jury what to do if the evidence was illegally obtained. 3 But the abstract portion of the instructions did. It told the jury that illegally obtained evidence was inadmissible, explained to the jury that a police officer could stop someone only if criminal activity was rationally suspected, and set forth the failure to wear seatbelts as the suspected crime that would be the basis of the stop. 4 Considered as a whole, the instructions essentially told the jury that it had to disregard the evidence if it was obtained illegally or if it was obtained legally. “[T]he only way the jury could have convicted was by disregarding the erroneous [application] instruction and acting in accord with the rest of the jury charge and the jury arguments.” 5
Similarly, the application portion of the instructions in the present case told the jury (incorrectly and to appellant’s benefit) to disregard the evidence if the jury determined that it was obtained legally. The application portion of the instructions did not tell the jury what to do if it was illegally obtained. But the abstract portion of the instructions told the jury that illegally obtained evidence was inadmissible, explained to the jury that a police officer could stop someone only if criminal activity was rationally suspected, and set *711 forth a violation of the Transportation Code as the suspected crime that would be the basis of the stop. As in Hutch, the application portion of the instructions essentially told the jury that the evidence could not be considered if it was legally obtained, and the abstract portion of the instructions told the jury that the evidence could not be considered if it was illegally obtained. The instructions never told the jury that it should consider illegally obtained evidence. The only rational view of the situation is that the jury, in convicting appellant, disregarded the erroneous application portion of the instructions.
. Hutch v. State, 922 S.W.2d 166 (Tex.Crim. App.1996).
. See Tex Code Crim. Proc. art. 38.23(a) (second paragraph).
. Hutch, 922 S.W.2d at 174-75 (Keller, J., dissenting).
. See id. at 169 (Court’s op.).
. See id. at 174-75 (Keller, J., dissenting).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812231. Public record. Not legal advice.