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
How later courts described this case
- 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”
Written by the judges who cited it.
The opinion
MEYERS, J.,
filed a dissenting opinion.
I have always loved great theater and this case has all the makings of a Tony Award winner. On stage right we have Judge Keasler and the plurality sterilizing Charlie Baird’s plurality opinion in Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996), and in the process basically eliminating the possibility of ever getting relief under the egregious harm standard of Almanza v. State, 686 S.W.2d 157 (Tex.Crim. App.1985). Entering from stage left, we have Judge Price’s impassioned defense of Almanza . Lastly, our heroine Judge Cochran saves the day for the plurality by concluding “that the error in this jury charge did not cause appellant egregious harm because the jury instruction was just an indecipherable lump of legal gobbledy-. gook that no one (including the lawyers and the judge) either understood or paid attention to.” See Cochran, J., concurring opinion at 712-13. 1 But this case is a classic example of the Almanza tragedy.
Instead of going to impossible lengths to disavow Hutch , the plurality should take the time to look at the inequality of Almanza and overrule it instead. The conflicting decisions of the court of appeals and the plurality in this case exhibit the conundrum created by Almanza in trying to determine harm vs. egregious harm. Analysis under Almanza has resulted in uneven rulings because the factors used to distinguish between harm and egregious harm are difficult to decipher. In addition, the rational of Almanza having the egregious harm standard in cases where the defendant did not object belies the truth that no attorney would ignore his ethical duty to his client and consciously fail to object to an improper jury charge. I do not know of any lawyer who would risk having an ineffective assistance of counsel ruling against him on the slim possibility that a jury charge error may eventually result in the reversal of a guilty verdict.
Appellate courts have clearly had difficulty judging how to weigh the Almanza factors, but the worst feature of the Al-manza egregious harm standard is that it is so unfair to defendants, especially in light of how we treat the State in similar situations. The State does not have to show egregious harm, or even some harm — the State does not have to show harm at all because in Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), we bestowed the State with the hypothetically correct jury charge. In Malik , We overruled Benson and Boozer to relieve the State of the burden of objecting to jury charge error in sufficiency cases. 2 Malik *714 created the hypothetically correct jury charge so that the State does not suffer when there is an erroneous jury instruction, so why should the defendant be treated differently and be given the almost impossible task of showing egregious harm from the same-error?
Instead of going to these lengths to disavow Hutch , it would be more equitable to do away with the enigma of Almanza and treat all jury charge error under the same “some harm” standard. It seems obvious that the plurality’s intent all along was not to reexamine the court of appeals’s analysis in this case but to simply eliminate a defendant’s ability to ever obtain relief if his attorney failed to object to a defective charge. Therefore, I respectfully dissent.
. I kinda thought that this instruction would become the gold standard for egregious harm. It certainly has all the markings: 1. It was an indecipherable lump 2. It was legal gobbledygook and 3. It was not understood by (a) anyone (b) the lawyers or (c) the judge.
. See Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982) and Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984).