Ex Parte Clark

597 S.W.2d 760

Opinions

OPINION

ROBERTS, Judge.

This applicant was convicted of burglary of a vehicle, and we affirmed in an unpublished opinion. In this application for habe-as corpus relief he for the first time draws attention to the fact that the court’s charge to the jury completely failed to apply the law to the facts. The charge contains only abstract statements of law.

The failure of the charge to apply the law to the facts is a fundamental error that is not waived by the failure to object at trial. Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). But not every fundamental error may be raised for the first time in habeas corpus proceedings. Ex parte Coleman, 574 S.W.2d 164 (Tex.Cr.App.1978), rehearing denied, 599 S.W.2d 305 (1979). It was held in Ex parte Coleman, supra, that errors of less than constitutional dimension in the court’s charge could not be the basis of a collateral attack by way of habeas corpus. (The error in question was a jury charge that authorized conviction on more theories of robbery than were alleged in the indictment.)

The difference between Ex parte Coleman, supra, and this case is precisely the matter of constitutional dimension. We have held that the total failure of the court’s charge to apply the law to the facts infringes two areas of the state and federal constitutions. First, it “goes to the very basis of the cases” and denies “the fair and impartial trial to which [defendants] are entitled under the federal and state Constitutions”; that is, under the due process provisions of the Fourteenth Amendment to the United States Constitution and the due course of law provision in Article 1, Section 19, of the Texas Constitution. Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975). Second, the failure of the charge to apply the law to the facts “impairs the right to trial by jury and, therefore, by definition, is ‘calculated to injure the rights of defendant,’ [V.A.C.C.P., Article 36.19] to a trial by jury,” which rights are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10, of the Texas Constitution. Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977). Because these constitutional rights were violated by the trial court’s total failure to apply the law to the facts in its charge to the jury, we hold that this error may be the basis of a habeas corpus attack, and that the conviction must be set aside.

Accordingly, the conviction in Cause F— 76-2942 PN in the 195th Judicial District Court is set aside and the applicant is released from any restraint imposed by the judgment or sentence in that cause. By virtue of the indictment that is pending in that cause, the applicant is remanded to the custody of the Sheriff of Dallas County.