Haynie v. State

DISSENTING OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge,

dissenting.

I, first of all, dissent to the remand. Second, I again call attention to the fact *880the error is charge error and not some other kind of error. The harm analysis should be made under Almanza v. State, 686 S.W.2d 157, 160 (Tex.Cr.App.1985) (Opinion on State’s Motion for Rehearing).

The rule-making authority of this Court as to appellate procedure is not absolute. See Acts 1985, 69th Leg., ch. 685, p. 2472 (H.B. 13). Section 9 of said House Bill 13 limits the authority of this Court to designate for repeal certain laws and to replace them with rules of appellate procedure. Articles 36.14 through 36.19, Y.A.C.C.P., are not among those laws. These statutes are still outstanding and authoritative. Article 36.14, supra, requires the trial judge to give to the jury a written charge “distinctly setting forth the applicable law.” The review of the charge on appeal is governed by Article 36.19, supra. In Alman-za, supra, this Court, in interpreting Article 36.19, supra, set forth the harm analysis to be used where there is error in the court’s charge. Thus, Almanza controls over any rule of appellate procedure adopted by this Court within its limited authority.