Doyle v. State

OPINION ON STATE’S MOTION FOR REHEARING ,

TEAGUE, Judge.

On original submission, a panel of the Court, with one judge dissenting with opinion, ruled that it was fundamental and reversible error for the trial court to have omitted from the application of the law to the facts paragraph of the charge to the jury the culpable mental state of either intentional or knowing.1

We granted the State’s Motion for Rehearing to reconsider the panel’s holding.

*735Although the definition of the offense of unlawful possession of a firearm by a felon,2 which was the offense the appellant was charged with committing, does not by its definition prescribe a culpable mental state, nevertheless, one is required by the provisions of V.T.C.A. Penal Code, Sec. 6.02.3 See also Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977).

The State in this cause, in its charging instrument, alleged not one but two culpable mental states; intentionally and knowingly. However, the trial court did not include in its application of the law to the facts paragraph of the jury charge either of the culpable mental states.

The State argues that this is without significance because when the trial court “perfectly” defined in the abstract the word “possession,” this eliminated the necessity of again setting forth a culpable mental state in the application of the law to the facts paragraph of the charge. It argues, as does the dissent, that this inference is mandated because of the general rule that the charge should be viewed as a whole. We disagree.4

It is axiomatic that when required elements of an offense are omitted from a charging instrument, such omissions will render a conviction fatally defective. See Tew v. State, supra; Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

We believe that it logically follows that when a trial court omits from the application paragraph of the charge required elements of an offense, this also will render a conviction fatally defective. To rule otherwise, we believe, would permit and allow our trial courts to state in a jury charge abstract definitions of legal terms and principles of law, without the necessity of applying those principles and terms to the very facts of the case. We further believe that to uphold such a rule of law could lead to the destruction of our jury system. We decline to take the first step which could lead to the jury system’s demise.

Abstract definitions of legal terms, words, and phrases in a jury charge are of extreme importance to a jury’s understanding of the law of the case. However, standing alone, abstract definitions are like words found in a dictionary. They are useless until correctly used in a sentence. Recently, in Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978), the Court stated:

The Court’s abstract instructions on the law — defining ‘unlawful control,’ ‘effective consent,’ ‘deception’ and ‘deprive’— are not sufficient to remedy the deficiency in that portion of the charge which applies the law to the facts of the case. The State also is incorrect in asserting that the charge is proper because it requires the jury to find that the appellant’s exercise of control over the proper*736ty was ‘as set forth in the indictment,’ and the indictment includes the element ‘without the effective consent of the owner.’ Were this the law, there would never be any need for a charge beyond requiring the jury to find that the defendant committed the offense as set forth in the indictment. See United States v. Bosch, 505 F.2d 78 (5th Cir. 1974); People v. Lewis, 112 Ill.App.2d 1, 250 N.E.2d 812 (1969). Id. at 652.

See also Mendoza v. State, 577 S.W.2d 240 (Tex.Cr.App.1978).

To understand our unique and historical system of trial by jury, it is crucial that one first understand that the trial judge and the jury each have certain independent responsibilities to perform. If the trial court fails to instruct a jury on the law, and on the law as applied to the facts, a jury cannot perform its function of being the exclusive judge of the facts. See Art. 36.-13, V.A.C.C.P.

We further believe that the Legislature of this State has commanded this Court, see Art. 36.19, V.A.C.C.P.,5 which Court is the final arbiter of criminal appeals in this State, see Art. 5, Sec. 5, Texas Constitution, to review in all appeals to this Court the charge to a jury. In each case appealed to this Court, the above statute implicitly requires that we are to make the determination whether or not there is error of omission or commission in a jury charge, and if we find there is, we must then make the determination whether or not the error was calculated to injure the rights of the defendant, and also determine, if such error exists, whether or not it prevented the defendant from receiving a fair and impartial trial. Just as it is the sole responsibility of a trial judge, and no other, to prepare a proper and correct charge for a jury, it is this Court’s legal duty not to let fundamental error in a charge go unnoticed. This has been the law in Texas for over 100 years.

See Smith v. State, 7 Tex.Ct.Rep. 382, 383 (1879).

As late as 1980, this Court stated in Ex parte Clark, 597 S.W.2d 760, 761 (Tex.Cr.App.1980).

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.. . We have held that the total failure of the court’s charge to apply the law to the facts infringes two areas of the state and federal constitutions. First, it ‘goes to the very basis of the cases’ and denies ‘the fair and impartial trial to which [defendants] are entitled under the federal and state Constitutions’; that is, under the due process provisions of the Fourteenth Amendment to the United States Constitution and the due course of law provision in Article 1, Section 19, of the Texas Constitution. Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975). Second, the failure of the charge to apply the law to the facts ‘impairs the right to trial by jury and, therefore, by definition, is “calculated to injure the rights of defendant,” [V.A.C.C.P., Article 36.19] to a trial by jury,’ which rights are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10, of the Texas Constitution. Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977).
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See also Johnson v. State, 99 Tex.Cr.R. 25, 267 S.W. 713 (1925).

When one considers the importance of a charge to a jury, it is oftentimes difficult to understand why our trial courts do not more carefully prepare it. E.g., Ex parte Kimberlin, 594 S.W.2d 438 (Tex.Cr.App.1980); Jones v. State, 611 S.W.2d 87 (Tex.Cr.App.1981). Especially is this true when one considers that a reviewing court will always review the correctness of the application paragraph of the charge. Grady v. *737State, 614 S.W.2d 830 (Tex.Cr.App.1981); Jones v. State, 576 S.W.2d 393 (Tex.Cr.App.1979); Grudzein v. State, 493 S.W.2d 827 (Tex.Cr.App.1973). In Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975), this Court held:

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It is also well established that the charge, rather than state mere abstract propositions of law and general statements of principles contained in the statutes, must clearly apply the law to the very facts in the case. ... Id. at 202.
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The reason for this rule of law is that a jury must depend upon a trial court for an unbiased instruction of the law, as it may be applied to the facts of the case. Williams v. State, supra. Jurors should not be required and expected, and they are not under our law, to put together pieces of what may appear to them to be a jigsaw puzzle to determine which elements must be proved in order to find that the defendant committed the offense which he was charged with committing.

Nor should jurors, and they are not under our law, be required to second-guess the trial court by assuming it inadvertently omitted a required element of the offense, just because an abstract definition in the charge includes the omitted element. Frequently, an abstract definition may include alternative elements of the offense, which may not be those alleged in a charging instrument. It would truly be fundamental error if this Court were to permit a conviction to stand, if the error was based on these alternative elements and the jury had not been instructed by the trial court of their application to the facts of the case. E.g., Gumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). The definitional or abstract portion of the charge is nothing more than a dictionary for the jury to use in defining legal words and terms. But, like words found in a dictionary, the true and correct meaning of legal words and terms is not shown until they are properly used in a sentence, i.e., until they are applied. Compare, Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980).

If, however, we were to allow a jury to look to the abstract, or the definitional portion of the charge, to seek out and possibly find completely omitted elements of the offense, as opposed to explanations by the trial court of the law, and the law as applied to the facts, jurors would be able to convict a citizen of this State on alternative elements which were not stated in the charging instrument, thus depriving a defendant of a fair and impartial trial by jury which our Constitutional law mandates he shall receive. See Sixth Amendment, United States Constitution; Art. I, Sec. 10, Texas Constitution.

We believe that if we did not recognize the legal division of responsibilities which presently exist between the trial court and the jury, this could eventually result in commingling of those responsibilities, and eventually result in the demise of the jury system as it presently exists. The present division of legal responsibilities between the trial judge and the jury is the backbone of our jury system. Over 400 years ago, it was written: “For the office of 12 men is no more than to enquire to Matters of Fact and not to adjudge what the law is, for that is the Office of the Court and not of the jury.” 1 Plowden 110a, 114a (K.B. 1554). We believe this is as it should be, but add to the statement the following: But in its instructions to the jury, the trial court must correctly apply the law to the facts of the case.

It is now axiomatic that an application of the law to the facts of the case, in the trial court’s charge to the jury, which omits the culpable mental state alleged in the charging instrument, will render that charge fundamentally defective, and require reversal of the conviction by this Court, or an intermediate appellate court of this State, should the cause be appealed. See Archie v. State, 615 S.W.2d 762 (Tex.Cr.App.1981); Ford v. State, 615 S.W.2d 727 (Tex.Cr.App.1981); Ferguson v. State, 610 S.W.2d 468 (Tex.Cr.App.1979); Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980); *738Porter v. State, 605 S.W.2d 553 (Tex.Cr.App.1979); North v. State, 598 S.W.2d 634 (Tex.Cr.App.1980); Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979); Banks v. State, 586 S.W.2d 518 (Tex.Cr.App.1979); Holloway v. State, 583 S.W.2d 376 (Tex.Cr.App.1979); Mendoza v. State, 577 S.W.2d 240 (Tex.Cr.App.1979); Thompson v. State, 574 S.W. 103 (Tex.Cr.App.1978); West v. State, 572 S.W.2d 712 (Tex.Cr.App.1978); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978). This is true even though the trial court’s charge to the jury properly includes therein the alleged culpable mental state in the abstract or definitional part of the charge. See Faulk, supra; Porter, supra.

Although the general rule is that a charge should be read as a whole, see Art. 36.19, supra, such general rule becomes applicable only when a reviewing court is judging the application of the law to the facts paragraph, and uses the charge as a whole to flesh out and explain the application paragraph. See Simmons v. State, 622 5.W.2d 111 (Tex.Cr.App.1981). The general rule is not applicable, however, when an entire element of the offense is omitted from the application paragraph. See Robinson v. State, supra.

Where there is a total or even a partial failure in the trial court’s charge, of applying the law of the offense to the facts of the case, this type error of omission infringes upon an accused’s federal and state constitutional rights to due process of law, due course of law, and the right of trial by jury. Ex parte Clark, supra. Such error has been held to be error calculated to injure the rights of a defendant because it prevents the defendant from receiving a fair and impartial trial by jury, to which he is entitled under our law. See Art. 36.19, supra; Ex parte Clark, supra; Williams v. State, supra; Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Harris v. State, supra; Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956); Rutherford v. State, 15 Tex.App. 236 (Tex.Ct.App.1883). It is error of such dimension that it has been held that it may be raised for the first time in a post-conviction habeas corpus proceeding. See Ex parte Clark, supra; Cf. Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1979).

Art. 36.14, V.A.C.C.P.,6 places the legal duty and responsibility on the trial judge to prepare for a jury a proper and correct charge on the law, and the law as may be applied to the facts adduced. This is a legal duty which must be performed by the trial judge. It may not be delegated to the attorneys for the respective parties, the court reporter of the court, or anyone else for that matter.

We believe that the charge to a jury represents the distilled and abstracted wisdom of many trials, appeals, and teachings of many great legal minds, both past and present, whose attention has been riveted on the subject of instructions to jury. The charge should resemble a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice system. If a jury is given fundamentally defective and tainted instructions, in the application of the law to the facts paragraph, it truly has received a flawed jewel. However:

A charge properly constructed will serve as an instrument to help the jurors cut through the confusing surface into the narrow area where the issues are clearly seen in their nakedness—their obscured simplicity. (Paraphrased, but taken from Closing Argument: The Art and the Law, Callaghan & Co., 1979 Edition).

*739We now return to this cause, and will attempt to explain how some of the above principles are applicable to the cause at Bar.

Although the statutory definition of the offense for which appellant was charged with committing does not contain a necessary culpable mental state, see V.T.C.A. Penal Code, Sec. 46.05, nevertheless, as the statutory definition does not plainly dispense with any mental element, one is required by law. V.T.C.A. Penal Code, Sec. 6.02.

The allegation in appellant’s indictment of the culpable mental states of intentionally and knowingly thus satisfied the fundamental principle of law that a charging instrument must allege all the essential elements of the offense sought to be charged.

However, it was still necessary, when the trial court instructed the jury in this cause, for the jury to be instructed in the terms of the charging instrument, i.e., of the law of the case as applied to the facts of the case. See Rider v. State, 567 S.W.2d 192 (Tex.Cr.App.1978); North v. State, 598 S.W.2d 634 (Tex.Cr.App.1980); Holloway v. State, 583 S.W.2d 376 (Tex.Cr.App.1979); West v. State, 572 S.W.2d 712 (Tex.Cr.App.1978); Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.1978); Mendoza v. State, 577 S.W.2d 240 (Tex.Cr.App.1970); Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978). See also Art. 36.14, V.A.C.C.P. E.g., Rider, supra; Perez, supra. The trial court in this cause did not do that.

We therefore conclude that the charge to the jury in this cause was fundamentally defective in two respects: The charge did not include therein either of the culpable mental states as were set out in the indictment. Furthermore, though the indictment alleged a culpable mental state, nowhere in the charge’s application paragraph is there a reference to a culpable mental state. The charge is therefore fundamentally defective, which causes us to sustain the decision rendered by a panel of the Court.

The State’s Motion for Rehearing is denied.7

ONION, P. J., and ROBERTS, DALLY and TOM G. DAVIS, JJ., concur in result.

. There are four culpable mental states in our law, and they are classified according to relative degrees, from highest to lowest, as follows: intentional, knowing, reckless, and criminal negligence. See V.T.C.A. Penal Code, Sec. 6.02(d).

. See V.T.C.A. Penal Code, Sec. 46.05.

. V.T.C.A. Penal Code, Sec. 6.02 provides in part:

(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
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.The word “Possession” was defined abstractly as follows: “Possession means actual care, custody, control or management. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.”

It would appear that by the definition of the word “possession,” it would not necessarily follow that any possession would constitute a knowing act. The definition merely states that only certain types of possession are voluntary acts. In any event, we do not believe that the definition includes a “conscious objective or desire” by the defendant when he committed the act. See Williams v. State, 630 S.W.2d 640 (Tex.Cr.App.1982, En Banc).

. Art. 36.19, V.A.C.C.P., provides:

Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, 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. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.

. Art. 36.14 provides in part as follows:

Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. (Emphasis added.)

. We find no need to discuss the dissenting opinion, for we observe that in several cases the author has explicitly made known his objections to the Court’s now well established doctrine of fundamental error in a jury charge. For other expressions by the author of the dissenting opinion in this cause, concerning his views as expressed in his dissenting opinion in this cause, see Wilson v. State, 625 S.W.2d 331, 336 (Tex.Cr.App.1981); and Mims v. State, 612 S.W.2d 933, 934 (Tex.Cr.App.1981).