Barrera v. State

982 S.W.2d 415, 1998 Tex. Crim. App. LEXIS 128, 1998 WL 692484
CourtCourt of Criminal Appeals of Texas
DecidedOctober 7, 1998
Docket1069-97
StatusPublished
Cited by117 cases

This text of 982 S.W.2d 415 (Barrera v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrera v. State, 982 S.W.2d 415, 1998 Tex. Crim. App. LEXIS 128, 1998 WL 692484 (Tex. 1998).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court

in which McCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

A Cameron County grand jury returned a single indictment charging appellant, Omar Barrera, with attempted murder and aggra[416]*416vated assault for the shooting of Oscar Za-rate. Appellant pleaded not guilty before a jury to both charges. The jury found appellant guilty of attempted murder and the trial court sentenced him to fifteen years in prison. After a motion for new trial, the trial court reduced appellant’s sentence to ten years. On appeal, appellant claimed, inter alia, that the trial court erred in failing to apply the law of self-defense to the facts of the case and in failing to instruct the jury that a reasonable doubt on the issue of self-defense required acquittal. See Tex. Penal Code Ann. § 2.03(d) (Vernon 1994). The court of appeals agreed that the trial court erred, and then analyzed that error under the federal harmless error rule because “we do not apply Almanza ... if the error implicates rights flowing from the United States Constitution.” Barrera v. State, 951 S.W.2d 153, 157 (Tex.App.— Corpus Christi 1997). Finding the error harmful under this standard, the court of appeals reversed appellant’s conviction and remanded for a new trial.

The State petitioned this Court for review, taking issue with the court of appeals’ holding that the omission in the jury charge was fundamental error. The State asks us to consider whether Almanza is the proper standard for review. We granted review to determine the proper standard for review when, in the absence of an objection, a jury charge includes the definition of self-defense but fails to contain self-defense in the application paragraph.

I.

Because appellant failed to either request a self-defense instruction or object to the instruction given, this case implicates our recent decision in Posey v. State, 966 S.W.2d 57 (Tex.Crim.App.1998). Posey claimed that the trial court erred in omitting a jury instruction on mistake of fact, even though he had neither requested the charge nor objected to its omission. The court of appeals agreed and remanded the case after determining that Posey had been egregiously harmed under the standard set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). See Posey, 966 S.W.2d at 59. On the State’s petition for discretionary review, this court reversed the court of appeals, holding that the omission of an unobjected-to (or unrequested) defensive instruction is not “error” under Almanza. Id. at 62.

This case presents a different issue from that in Posey, however. Rather than omitting an instruction altogether, the trial court in this case failed to apply an abstract instruction to the facts of the case. That is to say, even without a request, the trial court included the law of self-defense in the charge to the jury. A trial court has no duty to sua sponte charge the jury on unrequested defensive issues raised by the evidence. See Posey, 966 S.W.2d at 62. However, having undertaken on its own to charge the jury on this issue, the trial court in this case signaled that self-defense was “the law applicable to the case.” Therefore, any flaw in the charge on self-defense amounts to an error in the charge, even under the reasoning of Posey. The court of appeals properly concluded that the failure to apply the law of self-defense to the facts of the case and to instruct the jury to acquit if they held a reasonable doubt on self-defense was error.

II.

Having found the above-mentioned error, the court of appeals erroneously concluded that it was a federal constitutional error and applied the harm analysis appropriate to such errors. In reaching their conclusion, the court of appeals cited to a series of pre-Almanza charge error cases. In Doyle v. State, 631 S.W.2d 732 (Tex.Crim.App.1980), without support from federal caselaw, this Court held that the failure of a charge to apply the law to the facts of a case violated the federal constitution in two regards:

First, it ‘goes to the very basis of the cases’ and denies ‘the fair and impartial trial to which (defendants) are entitled under the ... due process provision! ] of the Fourteenth Amendment to the United States Constitution ... Second, the failure of the charge to apply the law to the facts ‘impairs the right to trial by jury ...,’ which [is] guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution....

[417]*417Id. at 736 (citing Ex parte Clark, 597 S.W.2d 760, 761 (Tex.Crim.App.1980)) (citations omitted).

However, our recent decisions have questioned this understanding of the importance of a procedurally perfect jury charge. In Malik v. State, we overruled the line of Texas cases that had held that the jury charge absolutely controls an appellate court’s assessment of evidentiary sufficiency (the so-called Benson/Boozer doctrine). Malik v. State, 958 S.W.2d 234 (Tex.Crim.App.1997). We instead concluded that the proper measure of sufficient evidence was the “hypothetically correct jury charge”:

Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.

Id. at 240. We pointed to authorities which had signaled the decline of the importance of the application paragraph of a charge, as well; for example, we acknowledged our recent observation that “it may well be that application paragraphs are an anachronism, and that jurors could perform just as well without them.” Id. at 238 (quoting Plata v. State, 926 S.W.2d 300, 304 (Tex.Crim.App.1996)).

Moreover, we pointed out in Malik that the Benson/Boozer doctrine found no real support in federal caselaw. Malik, 953 S.W.2d at 239. The same caselaw that led us to our conclusion in Malik supports the conclusion that the failure to apply the law of a case to its facts does not amount to a federal constitutional error, but is merely “a technical violation of [a] state-law rule.” Brown v. Collins, 937 F.2d 175, 182 (5th Cir.), rehearing en banc denied, 945 F.2d 403 (1991). This conclusion naturally follows from federal decisions which have concluded that “[n]or-mally ...

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Bluebook (online)
982 S.W.2d 415, 1998 Tex. Crim. App. LEXIS 128, 1998 WL 692484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrera-v-state-texcrimapp-1998.