dissenting.
Like Janus, the Court today sets its face in opposite directions at once. In this case the Court holds that we must review the charge as a whole, not limiting our view to the part that applies the law to the facts. In Plunkett v. State, 591 S.W.2d 907 (Tex.Cr.App. No. 55,078), also decided this date, the Court ignores errors in the charge as a whole, limiting its review to the part that applies the law to the facts. I can synthesize only one rule that reconciles these cases: In the face of plain error in a charge, the Court will adopt whichever approach leads to the result it desires.
I cannot understand why the Court takes comfort from reading the Jackson charge as a whole, for the more paragraphs one reads, the more errors he will find. The crucial paragraph 5 omits the aggravation element. Not to worry, says the Court, for that element can be found in paragraphs 1 ard 4. Of course, paragraph 4 itself contains an erroneous charge on “same criminal episode.” 1 But these errors are somehow cured in the context of paragraph 6, which gets both the “same criminal episode” element and the aggravation element wrong.2
The Court’s theory of juries, then, must be that they read all the paragraphs of the *826charge, picking a bit from this paragraph and a bit from that, to assemble the law. (Never mind that the Court assumes that the jury can distinguish right bits from wrong.) But if that is how a jury acts, then Plunkett must be wrongly decided, for it operates on a theory that juries read only one paragraph of a charge, ignoring the charge as a whole.
Plunkett is essentially the obverse of Jackson ; it had a correct application of the law to the facts, but defective abstract instructions and a defective defensive charge. Plunkett was indicted for intentionally and knowingly causing a death; V.T.C.A., Penal Code, Section 19.02(a)(1). The definition of murder was erroneously expanded to include causing death by committing an act clearly dangerous to human life with the intent to cause serious bodily injury; V.T. C.A., Penal Code, Section 19.02(a)(2). The jury was instructed that a person could be found guilty on either theory. The error was compounded by the prosecutor’s argument that the erroneous theory “applies in this case.” The theory of defense was, no intent to murder. The error was plainly “calculated to injure the rights of defendant”; V.A.C.C.P., Article 36.19. Only by refusing to read the charge as a whole could the jury have remained free from this error. But we know from Jackson that juries read the charge as a whole.
The Court necessarily is holding that a jury of laymen will know when a charge has no correct paragraphs (as in Jackson) so that it can assemble a correct instruction piecemeal, and that it will know when a charge has only one correct paragraph (as in Plunkett) among several incorrect ones. And it will read the charge as a whole in the former case, and ignore the charge as a whole in the latter case. If a jury could do these things there would be no need for charges on the law and we would not have to invent inconsistent reasons for affirming cases. But they cannot do the former and we should not do the latter. I dissent.
ODOM, .PHILLIPS and CLINTON, JJ., join in this opinion.. The element of “same criminal episode” appears in V.T.C.A., Penal Code, Sec. 21.03(a)(1), not in Sec. 21.03(a)(2) which was involved in this case.
. Paragraph 6 repeated the immaterial language about “same criminal, episode” and failed to require a finding that the threat was of harm “to be imminently inflicted."