Dougherty, Douglas Albert

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 2006
• Docket: PD-1411-05
• Status: Published

Opinion

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1411-05 DOUGLAS ALBERT DOUGHERTY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

BRAZORIA COUNTY

Per curiam.

O P I N I O N

Appellant was convicted of recklessly, or with criminal negligence, causing bodily injury to an elderly individual. The trial court assessed punishment at four years' confinement.

On appeal, appellant claimed the trial court erred in failing to sua sponte limit the definitions of culpable mental states in the jury charge to the result of appellant's conduct. The Court of Appeals agreed with appellant that the trial court erred by failing to limit the jury charge definitions to the culpable mental state. Dougherty v. State, No. 01-03-01064-CR slip op. at 11 (Tex. App.-Houston [1^st Dist.] March 10, 2005). The court further held, however, that the failure to limit the culpable mental state definitions did not result in egregious harm because the definitions were properly limited in the application paragraph. Id. at 11-13. Appellant has filed a petition for discretionary review in which he contends that the Court of Appeals failed to consider all of the factors required under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)(op. on reh'g). Specifically, he contends that the Court of Appeals failed to consider the prosecutor's jury argument and the contested issue of intent when evaluating egregious harm.

When assessing harm arising from jury charge error, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. Although the Court of Appeals correctly set forth this standard for assessing harm, its conclusion that there was no egregious harm was based solely upon the jury charge. The Court of Appeals failed to consider the other factors required by Almanza. See, e.g., Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002)(remanding to court of appeals to reconsider error under proper application of Almanza factors); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986)("[b]y focusing exclusively upon the charge, the Court of Appeals failed to consider the harmfulness of the charging error in the context of the entire record").

Therefore, we grant appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for reconsideration of the harm arising from the jury charge error in light of all of the factors set forth in Almanza.

DELIVERED March 1, 2006

DO NOT PUBLISH