Cane v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of the offense of aggravated kidnapping on his plea of guilty to a jury. The jury assessed punishment at confinement in the Texas Department of Corrections for a term of twenty (20) years. The Beaumont Court of Appeals reversed the conviction in a published opinion. Cane v. State, 698 S.W.2d 366 (Tex.App.—Beaumont, 1984). We granted the State’s petition for discretionary review to determine whether the court of appeals erred in reversing the trial court on the basis of the trial court’s charge to the jury on the objectives of the Penal Code contained in V.T.C.A. Penal Code, § 1.02. Having found that the court of appeals erred, we reverse.

The trial court, in its charge to the jury on punishment, included, inter alia, the following language:

“OBJECTIVES OF LAW:
“In arriving at your verdict, you should consider the following objectives of our criminal law:
“(1) To insure the public safety through:
“(A) The deterrent influence of the penalties provided:
“(B) The rehabilitation of those convicted, and;
*139“(C) Punishment as may be necessary to prevent likely reoccurrence of criminal behavior.
“(2) To give fair warning of what is prohibited and of the consequences of violation.
“(3) To prescribe penalties that are proportionate to the seriousness of the offense and that permits recognition of differences in rehabilitation possibilities among individual offenders.”

For reasons not discernible from the briefs, the petition for discretionary review, or the record, the trial judge did not include within this portion of the charge, subsections (4), (5), and (6) of § 1.02, supra.1

The court of appeals found that the appellant properly objected to the inclusion of this language from § 1.02, supra, in the charge,2 and the court below reversed appellant’s conviction pursuant to what it perceived this Court’s holding to be in Hart v. State, 634 S.W.2d 714 (Tex.Cr.App.1982).

In Hart, supra, the defendant complained that the trial court erred in refusing to charge the jury on the objectives contained in § 1.02, supra. In response, this Court observed:

“It has been generally held that a charge on the objectives of the penal code is improper. White v. State, 165 Tex.Cr.R. 339, 306 S.W.2d 903 (Tex.Cr.App.1965); Crain v. State, 394 S.W.2d 165 (Tex.Cr.App.1965); in any event the refusal to submit such an instruction was not an abuse of discretion.” Hart, supra, at 716-717.

In examining the holding in Hart, supra, we find that its genesis lies in White, supra. In White, as was the case in Hart, the defendant objected to the trial court’s failure3 to include a jury charge on the objectives of the Penal Code. Commissioner Belcher, writing for this Court, concluded that:

“The nature of the facts in evidence in this case in support of the offense charged and the penalty authorized to be assessed would make any instruction thereon a comment on the weight of the evidence and tend to convey the opinion of the court to the jury as to the disposition that should be made of the case— hence, would be improper.” White, supra.

This Court cited White in Crain, finding no error in the trial court’s refusal to in*140struct the jury on the objectives of the Penal Code because such an instruction “would constitute a comment on the weight of the evidence.” Crain, supra, at 169.

In Hart, White, and Crain, the trial judge refused to allow an instruction on the objectives of the Penal Code. There does not appear to be any case decided by this Court dealing with on the propriety of a trial judge submitting such an instruction. We now hold that, contrary to the inferential dicta in Hart, White, and Crain, an instruction on the objectives of the penal code is proper.

Texas law requires that the trial judge charge the jury with the “law applicable to the case.” Art. 36.14, Y.A.C.C.P. A trial judge, therefore, must assay the case before it can ascertain what law is applicable to the case. Some law is required to be submitted. Zuckerman v. State, 591 S.W.2d 495 (Tex.Cr.App.1979) (essential elements of offense must be submitted for conviction on offense),, while other law is submitted at the discretion of the trial judge, York v. State, 566 S.W.2d 936 (Tex.Cr.App.1978) (admonitory instructions given at discretion of trial court). We find that a charge on the objectives of the Penal Code as listed in § 1.02, supra, to be discretionary. Hart, supra at 716-717 (“[T]he refusal to submit such an instruction was not an abuse of discretion.”). To the extent that Hart and its progeny conflict with this holding, they are overruled.4

The objectives of the Penal Code embodied in § 1.02, supra, are the clear statements of the legislature as to its objectives in formulating a set of laws governing criminal conduct. As such, those objectives arguably could be considered relevant to the disposition of any criminal case. An instruction on those objectives, much like an admonitory instruction, would be discretionary because it does not involve the law applicable to the facts of the case. The instruction is simply informational that the judge may, in his discretion, find to be helpful to the jury. We find no logic in the proposition that such an instruction would constitute a comment on the weight of the evidence or invite the jury to speculate on matters outside of the evidence. A trial judge, therefore, does not abuse his discretion in submitting a charge which includes § 1.02 of the Penal Code.

Appellant further argues that the trial court in the instant case failed to submit an instruction which included all of § 1.02. It is clear that a charge must include an accurate statement of the law. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.1978). In charging the jury as to the objectives of the Penal Code, the trial judge failed to include subsections (4), (5), and (6) of § 1.02. The charge as given, therefore, was an inaccurate statement of all of the objectives of the Penal Code and constituted an erroneous charge. We quote with approval the language used by the Beaumont Court of Appeals in dealing with a charge using an identically incomplete instruction on § 1.02:

“We note that the ‘Objectives of Code’ should also be to safeguard conduct that is without guilt from condemnation as criminal; and to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses. ‘Objectives of Code’ are also to define the scope of the state interest in law enforcement against specific offenses and to systemize the exercise of state criminal jurisdiction. These crucial objectives were omitted. The inclusion of the last three paragraphs of Section 1.02 would make the charge more balanced. We believe the better practice would be that, if the trial judge is going to charge on the ‘Objectives of Code,’ he charge on all of them and not just part of them.” [emphasis in original] Wilson, supra, at 542.

Having found error in the charge, we now must determine what standard of review is required. Almanza v. State, 686 *141S.W.2d 157 (Tex.Cr.App.1985). Appellant failed to object at trial to the exclusion of subsections (4), (5), and (6) of § 1.02. Appellant’s objection only complained of any submission of § 1.02. We have dispensed with that objection and see no remaining objection that notifies the trial court of an inaccurate charge. Under Almanza, if the accused failed to object at trial, then reversal will result “only if the error is egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short, ‘egregious harm.’ ” Almanza, supra, at 171.

Having found charging error which was not objected to at trial, we reverse the court of appeals and remand this case for consideration of whether the trial court’s charging error resulted in the denial of a fair and impartial trial under the standard enunciated in Almanza, supra, and for consideration of the remaining grounds of error raised by appellant.

McCORMICK, MILLER and WHITE, JJ., concur. TOM G. DAVIS, J., not participating.

. Nor is there a clue in the transcript or the statement of facts as to why this charge was given. The appellant, in his response to the State’s petition, avers that this particular charge is only utilized in Jefferson County. There is nothing in the record to substantiate such an averment. However, see Wilson v. State, 680 S.W.2d 539 (Tex.App. — Beaumont 1984), where this same Jefferson County trial court submitted an identical charge on the objectives of the Penal Code.

. “MR. LAINE: Your Honor, the defendant objects to that portion of the Court’s charge entitled "Objections of Law,” and ask that it be removed.

"THE COURT: Objection is overruled. Do you have any other objections?

"MR. LAINE: No, your Honor, but I would like an opportunity to dictate the full objection.

"THE COURT: Yes, I thought you were through. Go ahead.

"MR. LAINE: I’m sorry. 'Comes now the defendant, in the above entitled and numbered cause, and files this Objection to the Court’s Charge, at the Punishment phase of the proceedings, and, in particular, the defendant objects to that portion of the Court’s Charge entitled "Objectives of Law,” for the reasons that said instructions, as propounded to the jurors, requires them to take into account facts and/or circumstances now [sic] necessarily within the common field of knowledge of the jurors, or the jury as a whole, and thereby causes them to speculate and to take into consideration others matters wholly out of evidence. As such, this instruction amounts to — amounts, in the least, to a comment on the weight of the evidence, and, in the most, to an unbridled attempt to permit the jurors to base their punishment verdict on guidelines for which they have not been properly counseled, or have not received, and are not in evidence.’

"THE COURT: Yes, Sir. Your objection is overruled. Again, the particular charge is in compliance with 1.02 of the Penal Code of Texas. Anything further?

"MR. LAINE: No, Your Honor.” [S/F 137-38].

.All emphasis is supplied by the author of this opinion unless otherwise indicated.

. We note that White and Crain were cases involving the death penalty. We have no reason to believe that any distinction arises in those premises.