Shanks v. State

710 S.W.2d 585, 1986 Tex. Crim. App. LEXIS 741

• Court: Court of Criminal Appeals of Texas
• Decided: May 28, 1986
• Docket: 091-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

The record of appeal reflects that a jury convicted Rex Bradley Shanks, hereinafter referred to as the appellant, of murder and assessed his punishment at 99 years’ confinement in the Department of Corrections.

On September 15, 1982, the El Paso Court of Appeals affirmed the appellant’s conviction. On December 15,1982, without written opinion or comment, that court also denied the appellant’s motion for rehearing. See Shanks v. State, 643 S.W.2d 150 (Tex.App.—El Paso 1982).

The appellant, in his motion for rehearing, asserted for the first time on appeal that the trial court’s jury charge was fundamentally defective because it failed to properly place the burden of proof on the State, rather than the appellant, to disprove the element of sudden passion beyond a reasonable doubt. As noted, the court of appeals denied the motion for rehearing without opinion or comment.

We granted the appellant’s petition for discretionary review to consider the issue.

In Jenkins v. State (Tex.Cr.App., No. 64,004, February 16, 1983) (Pending on State’s Motion for Rehearing), which was decided less than a month after Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984), was decided, this Court held that an instruction on the offense of murder was fundamentally defective if, in applying the law to the facts of the case, it failed to properly place the burden of proof on the State to disprove the element of sudden passion. Cobarrubio, supra, had held that such an instruction was subject to an objection. As noted, Jenkins, supra, held that such did not even require an objection. Both Jenkins and Cobarrubio, supra, were decided after the court of appeals overruled the appellant’s motion for rehearing.

However, since Jenkins and Cobarrubio, supra, were decided, this Court decided Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (Opinion on rehearing), in which the tests to be used when there was either objected to error or unobjected to error in the court’s charge to the jury were set out. Also see Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex.Cr.App., 1986); Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985); Moore v. State, 694 S.W.2d 528 (Tex.Cr.App.1985).

Because the court of appeals did not have the benefit of any of the above decisions when it denied the appellant’s motion for rehearing, we will remand this cause to that court for it to only consider the appellant’s above contention concerning the alleged unobjected to error in the court’s charge to the jury, which was presented in his motion for rehearing as grounds of error numbered IV and V.

It is so Ordered.

ONION, P.J., and MILLER, J., dissent.