Joseph Anthony Smith v. State

Affirmed in Part, Reversed and Remanded in Part, and Opinion on Remand
filed November 17, 2020.

In The

Fourteenth Court of Appeals

NO. 14-15-00502-CR

JOSEPH ANTHONY SMITH, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1336966

OPINION ON REMAND
On remand from the Court of Criminal Appeals, we must determine whether
appellant Joseph Anthony Smith preserved error in the trial court as to the
punishment-phase-jury-charge error the high court identified in its opinion, and we
must conduct a harm analysis. We conclude that appellant preserved error and that
under the Court of Criminal Appeals’s opinion, the error met Almanza’s “some
harm” standard.1 We affirm appellant’s conviction, reverse the trial court’s
judgment as to punishment, and remand for a new punishment hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant was backing his car out of the driveway heading towards the
street at around 5:00 a.m. when a man approached him wielding a gun. The man
tapped the driver’s-side window with the gun. Believing he was being robbed, the
complainant handed the man his wallet and keys, saying, “Please take my wallet and
keys. Please don’t hurt me.” The assailant asked the complainant if anyone else
was home, and although both of the complainant’s parents were at home, the
complainant replied that no one was at home because he did not want the assailant
to think anyone was in the house. The assailant told the complainant to get back in
the car, but the complainant refused. At that moment, a car drove down the street,
distracting both the assailant and the complainant enough that the assailant moved
the gun away from the complainant’s face. The complainant grabbed the assailant’s
hand and began screaming for help while fighting with him for the gun. The two
struggled, with the assailant attempting to muffle the complainant’s screams.

The car driving down the street did not stop to help the complainant, but the
complainant’s neighbor heard his screams and came outside with a firearm. The
neighbor ordered the assailant to drop the gun. The assailant released the gun and
ran away.

The neighbor pursued the assailant, telling him to get on the ground. The
assailant did not comply, but a second neighbor came out of his home with a weapon
and pursued the assailant, who eventually stopped running. The second neighbor
brought the assailant back down the street and forced him to wait until police arrived.

1
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

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The complainant brought the assailant’s gun into the complainant’s house and
eventually turned the gun over to responding police officers.

Appellant was charged with aggravated assault with a deadly weapon. He
pleaded “not guilty.”

Guilt/Innocence Phase

During their testimony in the guilt/innocence phase, the complainant and the
first neighbor described what happened. The trial court admitted into evidence
recordings of several phone calls appellant placed while he was incarcerated. In
these phone calls, appellant repeatedly discussed the incident, characterizing it as a
robbery, and explaining that his motivation for the act was his lack of money.

Appellant asked the trial court to charge the jury on the lesser-included offense
of aggravated assault. The trial court denied appellant’s request. The jury found
appellant guilty as charged.

Punishment Phase

During the punishment phase of the trial, the State presented evidence of other
bad acts the State alleged appellant had committed, including an assault and a capital
murder. Appellant introduced evidence that he had used the drug Xanax from his
youth up to the point of appellant’s incarceration. Appellant also presented an expert
witness who testified about the effects of Xanax use. In the punishment-phase jury
charge, the trial court instructed the jury as follows:

You may consider evidence of an extraneous crime or bad act in
assessing punishment even if the defendant has not yet been charged
with or finally convicted of the crime or act. However, you may
consider such evidence only if the extraneous crime or bad act has been
shown by the State beyond a reasonable doubt to have been committed
by the defendant or is one for which the defendant could be held
criminally responsible.

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 The prosecution does not have to prove an extraneous crime or
bad act beyond all possible doubt. The prosecution’s proof must
exclude all reasonable doubt concerning the extraneous crime or bad
act.
Therefore, if you find and believe beyond a reasonable doubt that
the defendant committed an extraneous crime or bad act or could be
held criminally responsible for an extraneous crime or bad act, then you
may consider such evidence in assessing the defendant’s punishment.
However, if you have a reasonable doubt that the defendant committed
an extraneous crime or bad act or could be held criminally responsible
for an extraneous crime or bad act, then you may not consider such
evidence in assessing punishment.
Over appellant’s objection, the trial court included in the punishment-phase jury
charge the following instruction:

Voluntary intoxication does not constitute a defense to the commission
of a crime. “Intoxication” means disturbance of mental or physical
capacity resulting from the introduction of any substance into the body.2

(“Voluntary Intoxication Instruction”).

During the State’s closing argument in the punishment phase, the prosecutor
referred to appellant’s reaction to testimony from the sister of the man appellant
allegedly killed in the capital murder. Appellant objected, and the trial court
overruled the objection.

The jury assessed punishment at confinement for life.

This Court’s Affirmance

On appeal in this court appellant asserted in three issues that (1) the trial court
erred in failing to charge the jury on a lesser-included offense during the
guilt/innocence phase of the trial, (2) the trial court erred, during the punishment

2
The first sentence of this instruction tracks the language of section 8.04(a) of the Texas Penal
Code, and the second sentence tracks the language of section 8.04(d). See Tex. Penal Code § 8.04
(West, Westlaw through 2015 R.S.).

4
phase of trial, in instructing the jury that voluntary intoxication is not a defense to
the commission of a crime, and (3) the trial court reversibly erred in overruling
appellant’s objection to the prosecutor’s closing argument during the punishment
phase. See Smith v. State, 522 S.W.3d 628, 632 (Tex. App.—Houston [14th Dist.]
2017) (plurality op.), rev’d, 577 S.W.3d 548 (Tex. Crim. App. 2019). A majority of
the court agreed that the appellant’s first and third issues should be overruled and
also agreed on the analysis of these issues. See id. at 631. The panel divided three
ways on the second issue. See id. at 632. In reversing this court, the Court of
Criminal Appeals did not adopt any of the three analyses.

In this court’s original disposition, the author of the lead opinion found no
error in the trial court’s Voluntary Intoxication Instruction, relying on a part of the
punishment-phase jury charge in which the trial court instructed the jury that in
fixing appellant’s punishment the jury could take into consideration all the facts
shown by the evidence admitted in the case, and concluding that the trial court did
not instruct the jury in the charge that it could not consider the voluntary-intoxication
evidence in mitigation of appellant’s punishment. See id. at 632–34. Justice Jewell
authored a concurring opinion in which he concluded that the trial court erred in
giving the challenged instruction, appellant preserved error on his second issue, and
the erroneous instruction did not cause appellant actual harm under the
circumstances of this case. See id. at 640–47 (Jewell, J., concurring). In his harm
analysis, Justice Jewell relied partly on the part of the punishment-phase jury charge
in which the trial court instructed the jury that in fixing appellant’s punishment the
jury could take into consideration all the facts shown by the evidence admitted in the
case. See id. at 642–44. Justice Christopher authored a dissenting opinion in which
she concluded that the challenged instruction was error, appellant preserved error on
his second issue, and the erroneous instruction caused appellant “some harm.” See

5
id. at 647–52 (Christopher, J., dissenting).

Review by the Court of Criminal Appeals

Appellant sought discretionary review in the Court of Criminal Appeals,
asserting various grounds. See Smith v. State, 577 S.W.3d 548, 550, 555 (Tex. Crim.
App. 2019). The high court granted review but addressed only appellant’s argument
that the trial court erred in giving the Voluntary Intoxication Instruction because it
violated article 36.14 of the Texas Code of Criminal Procedure. See id. at 550. The
Court of Criminal Appeals concluded that this instruction did not comply with article
36.14 and that the trial court erred in giving it. See id. at 550, 554–55. The high
court reversed this court’s judgment and remanded the case to this court to determine
whether appellant preserved error in the trial court as to this charge error and to
determine if this charge error was harmful.

II. ISSUES AND ANALYSIS ON REMAND

The first question in analyzing a jury-charge issue is whether the charge
contains error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If the charge
contains error, then we analyze that error for harm. See Ngo, 175 S.W.3d at 743.
Preservation of charge error does not become an issue unless and until we assess
harm. See id. The degree of harm necessary for reversal depends on whether the
appellant preserved the error by objection. See id. Jury charge error requires
reversal when the defendant properly objected to the charge and we find “some
harm” to appellant’s rights. See id. When the defendant fails to object or states that
he has no objection to the charge, we will not reverse unless the record shows
“egregious harm” to the defendant. See id. at 743–44.

The Court of Criminal Appeals already has answered the first question by

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determining that charge contains error. See Smith, 577 S.W.3d at 550–55. On
remand, we must determine whether appellant preserved error in the trial court as to
the charge error the Court of Criminal Appeals identified and then consider whether
this error caused harm. See id. at 554–55; Ngo, 175 S.W.3d at 743–44. We begin
by examining the error the high court identified, and then we address preservation
of error and the harm analysis.

A. What error did the Court of Criminal Appeals find?

In its review of this court’s judgment, the Court of Criminal Appeals began
by noting that under article 37.07, section 3(a)(1) of the Code of Criminal Procedure,
the State may offer “evidence of an extraneous crime or bad act that is shown beyond
a reasonable doubt . . . to have been committed by the defendant or for which he
could be held criminally responsible.” Tex. Code Crim. Proc. art. 37.07, § 3(a)(1).
The high court concluded that this language contemplates four possibilities: (1) the
State may present evidence that the defendant personally committed an extraneous
crime; (2) the State may present evidence that the defendant is “criminally
responsible” for an extraneous crime committed by someone else; (3) the State may
present evidence that the defendant personally committed an extraneous bad act; and
perhaps (4) the State may present evidence that the defendant is “criminally
responsible” for an extraneous bad act committed by someone else. See Smith, 577
S.W.3d at 550.

The Court of Criminal Appeals then addressed its opinion in Haley v. State,
in which the high court determined that the court of appeals had erred in holding the
trial court erred in admitting evidence in the punishment phase of appellant’s
involvement in an extraneous murder committed by her boyfriend because the
evidence did not show beyond a reasonable doubt that the defendant was guilty of
murder as a party to that offense. See 173 S.W.3d 510, 512–15 (Tex. Crim. App.

7
2005). In its analysis, the Haley court stated that under article 37.07, section 3(a),
“it is irrelevant whether the conduct the offering party is attempting to prove is, or
can be characterized, as an offense under the Texas Penal Code.” Id. at 514–15. The
Haley court also stated that “the statutorily imposed burden of proof beyond a
reasonable doubt does not require the offering party to necessarily prove that the act
was a criminal act or that the defendant committed a crime.” Id. at 515. The Haley
court interpreted article 37.07, section 3(a) as requiring proof beyond a reasonable
doubt of a defendant’s involvement in the act itself, rather than the elements of a
crime necessary for a finding of guilt. Id.

The Court of Criminal Appeals, in Smith, acknowledged that its opinion in
Haley plausibly could be understood to mean that whether a defendant’s extraneous
conduct meets the legal definition of a criminal offense is never a relevant
consideration in the punishment phase of trial. See Smith, 577 S.W.3d at 551. The
high court clarified that when it said in Haley that “it is irrelevant whether the
conduct the offering party is attempting to prove is . . . an offense,” the court did not
use the word “irrelevant” in an evidentiary or Rule of Evidence 401 sense. See id.
Rather, according to the Smith court, the Haley court “used the word ‘irrelevant’ in
a more general, rhetorical sense—to make the point that, even if a particular act is
not unlawful, and therefore not a ‘crime,’ it may still be admissible in the punishment
phase as a bad act.” Id. According to the high court, it did not say in Haley that the
State is forbidden from pointing out to the jury that the defendant’s extraneous
conduct was, not just “bad” in a normative sense, but also unlawful. Id. The Court
of Criminal Appeals stated that though the Haley court clarified that the offering
party need not “necessarily” establish that the extraneous act was criminal, the Haley
court did not say that the offering party is prohibited from doing so. Id.

In Smith, the high court proclaimed that though the trial court’s charge should

8
not suggest to the jury that the jury should give more weight in assessing punishment
to extraneous conduct if the jury finds the conduct to be criminal rather than just a
“bad act,” the State should not be prohibited from arguing to the jury that the
extraneous conduct is unlawful, provided that the trial court deems the unlawfulness
of the conduct relevant to sentencing. See id. at 552. Based on this proposition and
the trial court’s duty under article 36.14 to “deliver to the jury . . . a written charge
distinctly setting forth the law applicable to the case,” the high court concluded that
a trial court would not err by informing the jury of the circumstances under which it
could permissibly find that the defendant had previously “committed . . . [a] crime.”
Tex. Code Crim. Proc. art. 36.14; id. art. 37.07, § 3(a)(1); Smith, 577 S.W.3d at 552.
The Court of Criminal Appeals noted that it was dealing with a situation in which
the trial court granted a request for a clarifying instruction, rather than a situation in
which the trial court denied a request. Smith, 577 S.W.3d at 552. The high court
emphasized that it was not saying that a trial court must provide the jury with Penal
Code definitions for the extraneous offenses the State seeks to prove in the
punishment phase. See id. The high court stated that the only issue it was addressing
was whether the trial court erred by agreeing to give a section 8.04(a) instruction on
voluntary intoxication in the punishment-phase jury charge.

The Court of Criminal Appeals turned to Penal Code section 8.04(a), in which
the Legislature provides that “[v]oluntary intoxication does not constitute a defense
to the commission of crime.” Tex. Penal Code § 8.04(a); see Smith, 577 S.W.3d at
552. The high court concluded that because section 8.04(a) and article 37.07, section
3(a)(1) both refer to the “commission of a crime,” so long as the facts support it, the
trial court has discretion to give an appropriately limited instruction on voluntary
intoxication during the punishment phase of trial. See Smith, 577 S.W.3d at 552–
53. The Court of Criminal Appeals concluded that if there is punishment-phase

9
evidence that might lead the jury to conclude that the defendant’s intoxication
somehow turned the defendant’s otherwise-unlawful bad acts into lawful ones, the
trial court has discretion to give a voluntary-intoxication instruction. See id. at 553.

The high court then addressed how the trial court should formulate a
voluntary-intoxication instruction for the punishment phase. The Court of Criminal
Appeals concluded that so long as the trial court deems evidence of the defendant’s
intoxication “relevant to sentencing,” the jury properly may treat that evidence as
mitigating the defendant’s punishment. See id. at 554. The high court stated that
the only permissible use of a voluntary-intoxication instruction during the
punishment phase is to prevent the jury from treating otherwise-unlawful conduct as
lawful on account of the defendant’s intoxication. See id. at 554. Thus, a trial court
may not use a voluntary-intoxication instruction during the punishment phase to
instruct the jury that it may not treat the defendant’s intoxication as mitigating the
punishment for the charged offense. See id. at 553–54. The high court stated that
“insofar as the indicted conduct is concerned, the jury could only understand [an
instruction that tracked section 8.04(a)’s language] to mean that, even if the
defendant was intoxicated during the commission of the offense, his intoxication ‘is
no defense’ in the sense that it has no mitigating value.” Id. at 553. According to
the high court, to avoid misleading the jury in this way, the trial court carefully and
expressly must limit any punishment-phase voluntary-intoxication instruction so
that it applies only to the jury’s consideration of extraneous-conduct evidence. See
id. at 554. The Court of Criminal Appeals concluded that a trial court may not
simply track the language of section 8.04(a). See id. at 553.

The high court concluded that because the Voluntary Intoxication Instruction
simply tracked section 8.04(a)’s language, it violated article 36.14 and the trial court
erred in giving it. See id. at 550, 554–55. Having unpacked the issue in these terms

10
and having found error in the charge, the high court reversed this court’s judgment
and remanded the case for us to determine whether appellant preserved this
identified error and whether this error was harmful. See id. at 554–55. The State
did not argue on original submission in this court that appellant did not preserve
error on his second issue, and the State argued on original submission that the “some
harm” legal standard applied to the harm analysis on the second issue. In its opinion,
the Court of Criminal Appeals stated that an argument could be made that appellant
did not preserve error, but the court did not determine this issue. See id.

B. Did appellant preserve error in the trial court?

At the State’s request the trial court instructed the jury during the punishment
phase that “voluntary intoxication does not constitute a defense to the commission
of a crime.” The attorney for the State asserted during the charge conference that
the State requested this instruction because documentary evidence showed that
appellant was under the influence of Xanax and because of Dr. Terry Rustin’s
testimony. The State said that it requested this instruction so that the jury would not
“excuse the defendant’s behavior on the aggravated robbery.” The State said that
appellant was allowed to offer Dr. Rustin’s testimony as mitigation of punishment,
but the State said that the instruction would tell the jury that appellant’s intoxication
did not excuse appellant’s behavior in committing the aggravated robbery. The State
did not say that it requested the instruction because there was punishment-phase
evidence that might lead the jury to conclude that the defendant’s intoxication
somehow turned the defendant’s otherwise-unlawful bad acts into lawful ones.

Appellant timely objected to the Voluntary Intoxication Instruction, asserting
that it was not appropriate in the punishment phase of the trial. Appellant did not
object on the ground that no voluntary-intoxication instruction is ever appropriate in
the punishment phase of the trial. Instead, appellant objected that this instruction

11
was not appropriate in the punishment phase, an assertion that the Court of Criminal
Appeals sustained in its review of this case. See id. at 554–55. Appellant also
asserted that the instruction completely “takes away” Dr. Rustin’s testimony by
telling the jury to ignore it. Appellant also stated that it was appropriate for appellant
to submit evidence in mitigation of punishment and that this instruction would “take
that away from [appellant].” The high court made a similar point in reviewing this
case. See id. at 553.

The trial court stated that it would allow appellant to argue the mitigation
aspect of this evidence but that the court would leave the Voluntary Intoxication
Instruction in the charge, thus implicitly overruling appellant’s objection. See Tex.
R. App. P. 33.1(a)(2). The trial court stated that it was leaving the instruction in the
charge because the court did not want the jury to think that because appellant was
using Xanax, there should be no punishment for the aggravated robbery. The trial
court did not state that it was submitting this instruction to address the evidence as
to appellant’s extraneous offenses.

On remand, the State asserts that appellant’s objection was not specific
enough to alert the trial court to the charge error the Court of Criminal Appeals
identified. Appellant timely objected that the Voluntary Intoxication Instruction was
not appropriate in the punishment phase — an assertion the high court sustained.
See id. at 554–55. Appellant asserted that the instruction completely “takes away”
Dr. Rustin’s testimony by telling the jury to ignore it. Appellant also stated that it
was appropriate for appellant to submit evidence in mitigation of punishment and
that this instruction would “take that away from [appellant].” We conclude that
appellant’s objection sufficed to make the trial court aware of the error the Court of
Criminal Appeals identified in this case. See Marks v. State, 525 S.W.3d 403, 409–
10 (Tex. App.—Houston [14th Dist.] 2017), aff’d, 560 S.W.3d 169 (Tex. Crim. App.

12
2018).

The State also argues that appellant did not preserve error because he did not
object that the trial court failed to limit the instruction so that it applied only to his
extraneous conduct. The State did not say that it was seeking the Involuntary
Intoxication Instruction to apply to appellant’s extraneous conduct. In addition, the
State cites no case in which a court holds that a party objecting to an erroneous jury
instruction requested by the opposing party must point out an alternative way for the
trial court to draft the instruction that would be proper.

On this record, we conclude that appellant preserved error in the trial court as
to the charge error the Court of Criminal Appeals identified. See Jordan v. State,
593 S.W.3d 340, 346–47 (Tex. Crim. App. 2020); Ngo, 175 S.W.3d at 743–44;
Marks, 525 S.W.3d at 409–10.

C. Did the error in the charge cause “some harm”?

Because appellant preserved error, we will reverse if the error caused
appellant “some harm.” Jordan, 593 S.W.3d at 346. “Some harm” means actual
harm and not merely a theoretical complaint. Id. at 347. If we conclude the error
was calculated to injure the defendant’s rights, we must reverse. See Tex. Code
Crim. Proc. art. 36.19; Jordan, 593 S.W.3d at 347. To assess harm, we must evaluate
the whole record, including the jury charge, contested issues, weight of the probative
evidence, arguments of counsel, and other relevant information. Jordan, 593
S.W.3d at 347. We examine each of these factors in turn.
The Entire Jury Charge. The trial court’s punishment-phase charge contains
eleven pages of instructions. The first five pages address the punishment range, the
availability of community supervision, and the law regarding credits for good time
and parole. All of these subjects flow necessarily from the conviction for the charged
offense, not from the admission of the extraneous-offense evidence.
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 The challenged instruction appears on the sixth page. Reserved entirely for
the Voluntary Intoxication Instruction, the page contains no text signaling that the
instruction is limited to any extraneous offenses. Immediately following it is an
instruction to the jury that “the mere presence of the defendant at the scene of the
offense is not sufficient to conclude the accused committed the offense beyond a
reasonable doubt.” Following that instruction, the trial court directed the jury that
it could consider evidence of an extraneous crime or bad act in assessing punishment
even if the defendant had not yet been charged with or finally convicted of the crime
or act only if the State had shown beyond a reasonable doubt that the defendant
committed the extraneous crime or bad act or that it is one for which the defendant
could be held criminally responsible. Towards the end of the charge, the trial court
instructed the jury that “in fixing the defendant’s punishment . . . you may take into
consideration all the facts shown by the evidence admitted before you in the full trial
of this case.” Though one might argue that this later instruction—that the jury should
consider all of the evidence—would cure or eliminate any confusion the challenged
instruction created, the Court of Criminal Appeals implicitly rejected this argument
by rejecting the plurality opinion’s error analysis, which relied heavily on this
language. See Smith, 577 S.W.3d at 550–55; Smith, 522 S.W.3d at 632–34. The
high court stated that “insofar as the indicted conduct is concerned, the jury could
only understand [an instruction that tracked section 8.04(a)’s language] to mean that,
even if the defendant was intoxicated during the commission of the offense, his
intoxication ‘is no defense’ in the sense that it has no mitigating value.” Id. at 553.
Thus, the high court concluded that the trial court effectively instructed the jury that
evidence of intoxication should not be treated as mitigating evidence. See id.
The Evidence. During the punishment phase of trial, the State introduced
evidence that appellant had committed an extraneous offense, capital murder, the
day before the aggravated robbery. The record contains evidence that appellant was
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addicted to Xanax, and intoxicated by Xanax, at the time of the charged aggravated-
robbery offense and at the time of the alleged capital murder. Appellant’s sole
punishment witness, Dr. Rustin, testified that Xanax can cause aggressive or
criminal behavior that an individual otherwise would not exhibit because the drug
reduces inhibitions and causes users not to worry about the consequences of their
actions. Appellant did not offer Dr. Rustin’s testimony in an effort to excuse
appellant’s behavior (i.e., to eliminate appellant’s criminal responsibility) or to show
that appellant was temporarily insane because he had been under the influence of
Xanax. Rather, counsel offered this testimony to provide context and an explanation
for appellant’s behavior, in a permissible attempt to provide the jury with a basis for
mitigating appellant’s punishment. See Smith, 577 S.W.3d at 554; see also Ex parte
Smith, 309 S.W.3d 53, 63 (Tex. Crim. App. 2010) (stating that “[h]is evidence of
drug addiction, poverty, and a crime-ridden neighborhood was at the heart of his
mitigation theory.”).

Appellant needed some evidence in mitigation because the evidence portrayed
him in a very poor light. The State produced evidence that appellant killed a man
for his wallet; that appellant assaulted his own friend because he perceived that the
friend was encroaching on a girlfriend; and that he beat an inmate to the point of
rendering the inmate unconscious, just to get a private jail cell. And these are just
the extraneous bad acts. When the charged offense is also considered, the State’s
evidence depicted appellant as violent, depraved, and heartless.

Appellant’s problem with addiction stood as the only evidence offered to
counter this very negative depiction. But the Court of Criminal Appeals has
determined that the trial court effectively instructed the jury that evidence of Xanax
intoxication should not be treated as mitigating evidence. See Smith, 577 S.W.3d at
553. Although not by itself dispositive, the erroneous instruction’s negation of

15
appellant’s sole defensive theory weighs in favor of concluding the error caused
some harm. See Reeves v. State, 420 S.W.3d 812, 820–21 (Tex. Crim. App. 2013)
The Arguments of Counsel. Defense counsel tried to contain the effect of the
Voluntary Intoxication Instruction. During closing arguments, counsel repeatedly
argued that appellant’s Xanax addiction was not an “excuse” for his behavior.
Counsel also encouraged the jury to consider appellant’s addiction as “mitigation.”
Perhaps unsurprisingly, the prosecutor treated the Voluntary Intoxication
Instruction as a guilt-phase instruction, emphasizing the voluntary component of
appellant’s addiction:

There is no—I repeat—no mitigation for his activity. He’s the one that
chose to put that Xanax in his mouth. He didn’t have a prescription for
it. He chose to take it. He now must face the consequences of those
actions.
Because the prosecutor opted to close last, these words formed the final impression
imparted to the jury—a view based on an erroneous instruction.
Other Relevant Information. During the charge conference, the trial court
gave a legally flawed justification for the Voluntary Intoxication Instruction:

I’m going to allow y’all to argue the mitigation aspect of this, but I’m
going to leave this charge in there, because I don’t want the jury, as the
prosecutor just stated, to become confused to think that because he was
on some drug, and it might have messed his mind up, that the
punishment should be diminished to the point to where there could be
no punishment. So I’m going to leave it in.

Contrary to the trial court’s fears, the jury could not return a verdict of “no
punishment” because that sentence would fall outside the statutory range, rendering
the judgment void. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)
(“A sentence that is outside the maximum or minimum range of punishment is

16
unauthorized by law and therefore illegal.”); see also Tex. Penal Code § 12.32(a)
(the minimum sentence for a first-degree felony is five years’ imprisonment).

The trial court’s comment is also startling. The trial court essentially
explained that it was giving the instruction because it was concerned that the jury
might look at the evidence of addiction and intoxication, regard that evidence as
having reduced appellant’s blameworthiness, and then assess a lenient sentence. Of
course, the very purpose of mitigating evidence is to persuade the jury in that exact
manner—to show that the defendant is deserving of leniency. It is hard to imagine
an error more clearly “calculated to injure the rights of [the] defendant” than an
instruction so explicitly designed to negate the mitigating potential of the
defendant’s own properly admitted evidence. See Smith, 577 S.W.3d at 553.
In addition, the jury assessed appellant’s punishment at life imprisonment, the
maximum sentence permitted by law. Though this assessment by itself is not
dispositive of the harm analysis, a jury’s giving the maximum punishment weighs
in favor concluding that the error caused some harm. See Erazo v. State, 167 S.W.3d
889, 891 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that the
erroneous admission of evidence during the punishment phase of trial was not
harmless in a case in which the defendant was assessed the maximum punishment).

Having considered the record under the applicable standard of review, we
conclude that the erroneous Voluntary Intoxication Instruction was calculated to
injure appellant’s rights and thus caused appellant “some harm.” See Smith, 577
S.W.3d at 552–54; Jordan, 593 S.W.3d at 346–47; Reeves, 420 S.W.3d at 820–21;
Erazo, 167 S.W.3d at 891. We sustain appellant’s second issue.

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 III. CONCLUSION

Appellant preserved error in the trial court as to the punishment-phase jury-
charge error the Court of Criminal Appeals identified in its review. Because that
error was calculated to injure appellant’s rights, it caused appellant “some harm.”
Therefore, we affirm appellant’s conviction, reverse the trial court’s judgment as to
punishment, and remand to the trial court for a new punishment hearing.

/s/ Kem Thompson Frost
Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jewell.

Publish — TEX. R. APP. P. 47.2(b).

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