IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE TENTH COURT OF APPEALS
FALLS COUNTY
O P I N I O N
Appellant claims that the court of appeals erred by using an incorrect legal analysis in holding that he did not suffer egregious harm by the trial court's failure to define "serious bodily injury" in the jury charge. The State acknowledges that the court of appeals erred, and we agree. We reverse the judgment of the court of appeals (1) and remand the case to that court for further consideration.
Appellant was indicted for aggravated assault. At trial, the State's evidence showed that appellant shot Calvin Penny without provocation as appellant drove by Mr. Penny's home in his truck. However, appellant testified that he shot Mr. Penny in self-defense when he drove to Mr. Penny's mailbox to deliver a misdirected letter to his former wife who was, by then, married to Mr. Penny. According to appellant, he saw Mr. Penny coming toward him with a gun, and it was only after Mr. Penny shot at him that he returned fire.
The trial judge, sua sponte, included a jury instruction on self-defense, but he omitted a definition of the term "serious bodily injury." Appellant did not object to this omission. The jury convicted appellant of aggravated assault and sentenced him to seven years' imprisonment.
Appellant appealed, claiming that the omission of a definition of "serious bodily injury" in the jury charge on self-defense was error and it caused him egregious harm under Almanza. (2) The court of appeals rejected this complaint, concluding that "Almanza
does not govern unobjected-to omissions from the charge-only 'errors' actually in the charge. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)." (3)
The court of appeals was mistaken in relying on Posey because the trial court did not omit an instruction altogether. Instead, it failed to include the statutory definition of "serious bodily injury," a term that was included as part of the self-defense instruction. As we reasoned in State v. Barrera, (4)
A trial court has no duty to sua sponte charge the jury on unrequested defensive issues raised by the evidence. 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. . . . (5)
The same is true in the present case.
Thus, the court of appeals erred in holding that the error in the jury charge was "waived." We reverse the judgment of the court of appeals and remand this case to that court to conduct a harm analysis under Almanza.
Delivered: November 23, 2005
Do Not Publish
1. 2. 3. 4. 982 S.W.2d 415 (Tex. Crim. App. 1998).
5.