Opinion issued September 28, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01–05–00141–CR
CODY LEE OURSBOURN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 969321
DISSENTING OPINION
Because the majority, in its discussion of appellant’s second issue, fails to follow the well-established precedent of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), and erroneously concludes that there is “no error in the charge” in this case, I respectfully dissent.
In his second issue, appellant, Cody Lee Oursbourn, contends that “egregious harm resulted when the trial court failed to provide jury instructions sua sponte pursuant to article 38.22, section 6, and article 38.23 [of the Texas Code of Criminal Procedure] , where a factual dispute existed regarding the voluntariness of appellant’s statement.” See Tex. Code Crim. Proc. Ann. arts. 38.22, § 6; 38.23(a) (Vernon 2005). In his motion to suppress his statement, appellant argued that he was not “competent to understand” his legal rights and “knowingly and voluntarily waive” those rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2. As noted by the majority, the record does in fact reveal that “there was evidence presented before the jury that appellant was in pain, was lied to about the evidence against him, and displayed characteristics of being in a vulnerable mental state due to his bipolar disorder.”
Standard of Review
The Texas Code of Criminal Procedure provides that in each felony case, the trial court “shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005). It also provides that whenever a trial court disregards the code’s jury charge requirements, “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981).
The Texas Court of Criminal Appeals has stated that article 36.19’s clause, “or unless it appears from the record that the defendant has not had a fair and impartial trial,” is a “legislative recognition and acceptance of the fundamental error doctrine.” Almanza, 686 S.W.2d at 172. In Almanza, the Court explained,
Construed this way, the statute says that one reason to reverse for error in the charge arises if the error, having been properly objected to at trial is harmful and therefore “calculated to injure the rights of the defendant.” An independent basis for reversal arises if the error, even though not timely objected to, is so egregious and creates such harm that it deprives the accused of a “fair and impartial trial.”
Id. As recently noted by the Court of Criminal Appeals,
Our case law is clear that when there is jury-charge error, whether objected to or not objected to, the standard for assessing harm is controlled by Almanza.
Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
Thus, in analyzing a jury charge issue, an appellate court’s first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error exists, the court then analyzes that error for harm. Id. The degree of harm necessary for reversal depends upon whether the defendant preserved the error by objection. Id. Reversal is required for a jury charge error when the defendant has properly objected to the charge and the appellate court finds “some harm” to his rights. Almanza, 686 S.W.2d at 171. However, where, as here, a defendant fails to object to or states that he has no objection to the charge, the court will not reverse unless the error was so egregious and created such harm that the defendant did not have a fair trial. Bluitt, 137 S.W.3d at 53; Almanza, 686 S.W.2d at 171. Thus, appellate courts review alleged charge error by considering (1) whether error existed in the charge and (2) whether sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998).
Article 38.22 and 38.23 Jury Instructions
In regard to appellant’s complaint about the voluntariness of his statement, section 3 of article 38.22 provides that an accused’s oral statements “made as a result of custodial interrogation” are inadmissible against the accused in a criminal proceeding unless “an electronic recording . . . is made of the statement” and, “prior to the statement but during the recording, the accused is given the legal warnings in Subsection (a) of section 2 [of article 38.22]” and “the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.” Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1), (2).
When a question is raised as to the voluntariness of an accused’s statement, section 6 of article 38.22 requires the trial court to “make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions.” Tex. Code Crim. Proc. Ann. art. 38.22, § 6. If the trial court finds that the statement has been voluntarily made and holds it admissible as a matter of law, “the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based.” Id. If the trial court finds as a matter of law and fact that the statement was voluntarily made, “evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof.” Id. Moreover, article 38.23 provides that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code Crim. Proc. Ann. art. 38.23(a). It also provides that “where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Id. art. 38.23(b).
Here, in his motion to suppress his statement, appellant expressly argued that he was not “competent to understand” his legal rights and “knowingly and voluntarily waive” those rights. After a hearing on the motion, the trial court concluded otherwise and denied appellant’s motion, but failed to make the appropriate findings of fact and conclusions of law required by section 6 of article 38.22. Subsequently, as acknowledged by the majority, the evidence presented to the jury at trial raised factual issues as to appellant’s mental capacity to voluntarily make a statement and whether he in fact waived his legal rights.
Thus, as the trial court clearly erred in failing to enter the appropriate findings of fact and conclusions of law required by section 6 of article 38.22, I would hold that it further erred in failing to instruct the jury that unless it “believed beyond a reasonable doubt” that appellant’s statement was “voluntarily made,” it could “not consider such statement for any purpose nor any evidence obtained as a result thereof.” See Tex. Code Crim. Proc. Ann. art. 38.22, § 6. Likewise, I would hold that it erred in failing to provide the jury with an instruction as required by article 38.23. As recently noted by the Court of Criminal Appeals,
Based upon our holding in Almanza, . . . that unobjected-to jury-charge error warrants reversal only when the error results in egregious harm, we have held that the question of whether the defendant has preserved jury-charge error is relevant only if there is a determination that error actually occurred. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986). Thomas also acknowledged that Article 38.23 provides in mandatory terms “that a jury is to be instructed to resolve factual disputes over whether evidence was illegally obtained and, therefore, inadmissible.” Id. We have more recently reiterated that “an Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). Thus, if a defendant raises a factual dispute about whether evidence was illegally obtained, an Article 38.23 instruction must be included in the jury charge.
Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).
Egregious Harm
As noted above, where, as here, a defendant fails to object to or states that he has no objection to the charge, an appellate court will not reverse unless the error was so egregious and created such harm that the defendant did not have a fair trial. Bluitt, 137 S.W.3d at 53; Almanza, 686 S.W.2d at 171.
Under the well-settled Almanza egregious harm standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error. 686 S.W.2d at 174. Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). To determine whether a defendant has sustained egregious harm from a non-objected-to instruction, appellate courts consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Although appellant argues that without the article 38.22 and article 38.23 instructions, “there was no mechanism for the jury to disregard appellants statement should they [have] found it involuntary,” the State, in its briefing to this Court, does not address the issue of harm.
Here, the crucial fact is that the only evidence directly connecting appellant to the offense of aggravated robbery was his incriminating statement. Neither the complainant nor any of the witnesses to the offense could identify appellant, in either a photographic array or a live line-up, as the man who actually took the complainant’s car from her at gunpoint. Moreover, given the factual dispute as to the voluntariness of appellant’s statement, the State was actually relieved of its burden of proving beyond a reasonable doubt that appellant voluntarily made his statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6. Likewise, given the fact issues, it was relieved of its burden of proving beyond a reasonable doubt that the statement was legally obtained. See Tex. Code Crim. Proc. Ann. art. 38.23.
The trial court’s errors in failing to provide the jury with the appropriate article 38.22 and article 38.23 instructions did affect the very basis of the case against appellant and made the case for conviction clearly and significantly more persuasive.
Accordingly, I would hold that appellant suffered egregious harm from the trial court’s errors and sustain appellant’s second issue. Conclusion
The trial court erred in failing to instruct the jury, pursuant to article 38.22, that unless it “believed beyond a reasonable doubt” that appellant’s statement was “voluntarily made,” it could “not consider such statement for any purpose nor any evidence obtained as a result thereof.” It also erred in failing to further provide the jury with an instruction as required by article 38.23. Because the trial court’s errors resulted in egregious harm to appellant, I would reverse the judgment of the trial court and remand the case back to the trial court for a new trial.
Terry Jennings
Justice
Panel consists of Justices Jennings, Hanks, and Higley.
Justice Jennings, dissenting.
Publish. See Tex. R. App. P. 47.2(b).