COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-271-CR
SEAN KRESSE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In six points, Appellant Sean Kresse complains that the trial court erred by
admitting inadmissible hearsay testimony and by including an erroneous instruction
on voluntary intoxication in its punishment charge to the jury. W e reverse and
remand to the trial court for a new punishment trial.
II. Factual and Procedural History
1
See Tex. R. App. P. 47.4.
In September 2007, Kresse and Lorena Sandoval were dating and living
together. After work on September 14, Kresse drank a few beers at his place of
employment and then walked to a friend’s house, where he drank some more.
Kresse then went home and strangled Lorena to death. On May 12, 2009, Kresse
pleaded guilty to Lorena’s murder and requested that a jury assess punishment.
The jury assessed punishment at fifty years’ confinement, and the trial court
sentenced Kresse accordingly. This appeal followed.
III. Voluntary Intoxication Instruction
In Kresse’s third and fourth points, he asserts that the trial court erred by
including a voluntary intoxication instruction in the jury charge and that this error
resulted in some harm to him. Over Kresse’s objection, the trial court sua sponte
instructed the jury that “[v]oluntary intoxication does not constitute a defense to the
commission of a crime,” and it included penal code section 8.04’s definition of
intoxication in its punishment charge to the jury. 2 Immediately following the voluntary
intoxication instruction and the definition of “intoxication,” the jury charge read: “It
now becomes your duty under the law to determine the punishment which should be
assessed against this defendant.” In his fifth and sixth points, Kresse argues that this
instruction constituted an impermissible comment on the weight of the evidence and
that this resulted in harm to his right to a fair trial.
2
Section 8.04 defines intoxication as a “disturbance of mental or physical
capacity resulting from the introduction of any substance into the body.” Tex. Penal
Code Ann. § 8.04(d) (Vernon 2003).
2
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process. Abdnor
v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287
S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error
occurred. If so, we must then evaluate whether sufficient harm resulted from the
error to require reversal. Abdnor, 871 S.W .2d at 731–32. Error in the charge, if
timely objected to in the trial court, requires reversal if the error was “calculated to
injure the rights of [the] defendant,” which means no more than that there must be
some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19
(Vernon 2006); Abdnor, 871 S.W .2d at 731–32; Almanza v. State, 686 S.W .2d 157,
171 (Tex. Crim. App. 1985) (op. on reh’g); see also Barrios v. State, 283 S.W .3d
348, 350 (Tex. Crim. App. 2009) (“A claim of jury-charge error is reviewed using the
procedure set out in Almanza.”). In other words, a properly preserved error will
require reversal as long as the error is not harmless. Almanza, 686 S.W .2d at 171.
In making this determination, “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.” Id.; see also Ovalle v.
State, 13 S.W .3d 774, 786 (Tex. Crim. App. 2000).
B. Analysis
3
The State concedes that the inclusion of the voluntary intoxication instruction
during the punishment stage of the trial was erroneous because, if applicable, it is
to be given during the guilt-innocence stage of trial, not punishment. See Taylor v.
State, 885 S.W .2d 154, 156 (Tex. Crim. App. 1994); see also Sakil, 287 S.W .3d at
26 n.6. However, it argues that no harm occurred because
the jury would not have relied on the instruction. The instruction, by its
clear language, applies to a defense rather than a mitigating factor in
punishment. Since [Kresse] pleaded guilty and judicially confessed to
the offense, the instruction had no bearing on the jury’s function to
assess punishment. Further, neither the State nor [Kresse] argued in
closing that [Kresse’s] voluntary intoxication should play any role
whatsoever in assessing punishment. The result of the erroneous
instruction here was no different than the result of an erroneous Section
8.04 instruction in the guilt/innocence phase of trial. . . . [T]he Section
8.04 instruction in this case was superfluous, innocuous, and resulted
in no harm to [Kresse].
The State attempts to bolster its argument by referring us to Olivarez v. State,
Nos. 05-04-00862-CR, 05-04-00863-CR, 2005 W L 1163973 (Tex. App.—Dallas May
18, 2005, pet. ref’d) (not designated for publication), and Ross v. State, 133 S.W .3d
618 (Tex. Crim. App. 2004). However, both are distinguishable: 3 Olivarez
concerned an unobjected-to voluntary intoxication instruction given during the guilt-
innocence stage of trial, not during the punishment phase. See 2005 W L 1163973,
at *3. And Ross involved an erroneous instruction on parole, which the court noted
was corrected by Ross’s counsel during closing argument. See 133 S.W .3d at
3
Neither the State nor Kresse directs us to a case concerning an erroneous
inclusion of an 8.04(a) instruction at punishment, and this court has not found one.
4
623–24 (concluding that there was not a reasonable likelihood that the good conduct
time language in the parole charge misled the jury into believing that a life-sentenced
appellant would be released from prison in less than forty years).
Kresse responds that the testimony during his trial was replete with evidence
of the history of his intoxication, its effect on his actions, and his intoxication at the
time of the murder, and that the State emphasized his inebriation in both its opening
statement and its closing argument. Specifically, he points out that the State opened
by stating that “[t]he recurring theme you’re going to hear is that Lorena did not like
it when Sean drank because he became a different person. He became angry. He
became combative,” and closed with accusing Kresse of being an “alcohol-fueled
ticking time bomb” who “gets angry [and] wants to fight.” Therefore, Kresse argues
that the inclusion of the voluntary intoxication instruction in the punishment charge
drew attention to one area of evidence and enhanced the State’s argument for
punishment.
Turning to the Almanza factors, we first observe that the negative reference
to intoxication in the charge is the only factual evidentiary matter in the entire charge.
Thus, the intoxication instruction, in its proximate location to the trial court’s
instruction to the jury to determine punishment, was likely to draw the jury’s attention
to Kresse’s history of drinking prior to the murder. Further, Kresse’s history of
drinking was introduced repeatedly throughout the trial and emphasized by the State
during its opening statement and closing argument. Bearing in mind that we are
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required to reverse if we determine the presence of “any harm, regardless of degree,
which results from a preserved charging error,” we hold that the instruction
incorrectly emphasized a portion of the State’s case and drew particular attention to
one aspect of it. See Arline v. State, 721 S.W .2d 348, 351 (Tex. Crim. App. 1986)
(“Cases involving preserved charging error will be affirmed only if no harm has
occurred.”). Accordingly, we sustain Kresse’s third and fourth points. 4
IV. Hearsay
In Kresse’s first two points, he complains that the trial court abused its
discretion by admitting Lorena’s friend Ruth Zavala’s testimony containing
inadmissible hearsay in violation of rule of evidence 802 and that this decision
adversely affected his right to a fair trial. Although Kresse’s third and fourth issues
are dispositive, we address Kresse’s complaint here in the interest of judicial
economy because this is a challenge likely to be raised in Kresse’s new punishment
trial. See Davis v. State, 144 S.W .3d 192, 201 (Tex. App.—Fort W orth 2004, pet.
ref’d).
During the punishment trial, Kresse objected that portions of Ruth Zavala’s
testimony constituted hearsay, and the trial court held a hearing outside the jury’s
4
Because we sustain Kresse’s third and fourth points, we need not address
his fifth and sixth points with regard to whether the trial court improperly commented
on the weight of the evidence by including the voluntary intoxication instruction in the
punishment charge. See Tex. R. App. P. 47.1.
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presence to determine the testimony’s admissibility. 5 The trial court overruled
Kresse’s objection and allowed Zavala to testify about events Lorena had told her
about.
“Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Tex. R. Evid. 801(d). W e observe that the State’s argument at trial that
Zavala’s testimony falls under the hearsay exception found in rule 804(a)(4)—that
is, that the declarant is unavailable—is misguided. Rule 804(a)(4) states that a
declarant is “unavailable” if she is unable to be present or to testify at the hearing
because of death. Tex. R. Evid. 804(a)(4). This is not a hearsay exception. Rule
804(a) only provides guidance as to who is an “unavailable witness.” Id. It is Rule
804(b) that sets out the exceptions applicable to testimony by a declarant who is
unavailable as a witness—these exceptions are: (1) former testimony, (2) dying
declarations, and (3) statements of personal or family history. See Tex. R. Evid.
804(b)(1)–(3). None of these exceptions apply here. 6 Thus, the statements are not
admissible under rule 804.
V. Conclusion
5
Kresse also objected to Zavala’s testimony based on the Confrontation
Clause, but he does not raise that as a point in this appeal.
6
Because of our disposition of this case, and because the State relied
primarily on rule 804(a)(4) and did not fully articulate any other bases for
admissibility at trial, we will not address whether these statements are admissible
under any other exceptions. See Tex. R. App. P. 47.1.
7
Having sustained Kresse’s dispositive issues, we reverse the trial court’s
judgment, and we remand this case for a new trial on punishment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 22, 2010
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