Almanza v. State

• Decision Date: 08 February 1984
• Docket Number: No. 242-83,242-83
• Citation: 686 S.W.2d 157
• Parties: Cipriano Ramon ALMANZA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 157

686 S.W.2d 157

Cipriano Ramon ALMANZA, Jr., Appellant, v.The STATE of Texas, Appellee.

No. 242-83.

Court of Criminal Appeals of Texas En Banc.

Feb. 8, 1984.

On Rehearing Feb. 27, 1985.

Lee Ann Dauphinot, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, Lee A. Joyner, Jr., Betty McCutchan and James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The Fort Worth Court of Appeals stated the following in Almanza v. State, 645 S.W.2d 885(Tex.App.--Ft. Worth1983):

Although many recent opinions have off-handedly dismissed the changing of 'and' in the indictment to 'or' in the court's charge, such approach is dangerous and usually fatal in matters where aggravation or jurisdiction is involved.In the instant cause of aggravated rape the indictment joined the allegation of threats of death to the standard form allegation of rape by the word and.In the court's charge, [however], the aggravation feature was disjoined from rape by the word or.Such constitutes fundamental error.Messenger v. State, 638 S.W.2d 883(Tex.Cr.App.1982).

The cause is reversed and remanded to the trial court for further proceedings under this indictment.

The State has filed a petition for discretionary review with this Court, asking us to make the determination whether the above decision of the Court of Appeals is correct.We have concluded, after the respective parties favored this Court with well written supplemental briefs, as well as making outstanding oral arguments, that the decision of the Court of Appeals is in all things correct.

The State's petition for discretionary review was improvidently granted.It is therefore ordered dismissed.

MILLER, Judge, concurring.

Although there is merit in the dissenting opinion of Judge Clinton, I concur with the decision of the majority to dismiss the State's petition in this case as improvidently granted because the issue of the relationship between fundamental error in the court's charge and error in the court's charge as contemplated by Article 36.19, V.A.C.C.P., has not been thoroughly briefed or argued by either the State or the defense.Historically the advocacy system has served the judiciary well in charting the course of criminal jurisprudence in this state.If we are going to redefine fundamental error vis-a-vis the court's charge to the jury, as perhaps we should, then let us do so when the issue is properly joined, either on motion for rehearing in this case or in a future case before the court.Because the dissent would raise and address the issue sua sponte in this case, I concur in dismissing the State's petition.

CLINTON, Judge, dissenting.

One reason for granting the petition in this cause was to examine seriously a claim of "harmless fundamental error" in the charge of the court to the jury, and we ought to pursue that examination to a just end.

Beginning with Old Code Articles 594-603 and decisions construing them, ¹ I have tracked developments in the law of fundamental error in a court's charge through legislative amendments of 1897² and 1913³ and judicial opinions thereafter--more thoroughly than before.⁴ That research and conclusions drawn from it are contained in an opinion which has been circulated to all other members of this Court and presented in conference.However, it is much too long for publication as usual.Accordingly that opinion is being handed down as an appendix to this one, but will not be published.

Several lessons are taught by those historical developments that have been chronicled in my unpublished opinion concerning error in a charge of a trial court to a jury.One is that an alleged error not properly raised and preserved according to Articles 36.14, 36.15 or 36.16, V.A.C.C.P. will not be considered on appeal unless it presents "fundamental error."Another is that when claimed error has been properly raised, preserved and brought up on appeal, the judgment shall not be reversed unless the error "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,"Article 36.19, id.A third is that utilizing the tests of Article 36.19 to find "fundamental error" when an objection was not made before the charge was read to the jury, as is now so often done on appeal, may not be sound.

Accordingly, I do not agree that we improvidently granted the State's petition for discretionary review.Still, a majority will not redefine the fundamental error doctrine as it applies to a charge of a trial court to a jury.

Therefore, I dissent.

W.C. DAVIS, McCORMICK and CAMPBELL, JJ., join.

OPINION ON STATE'S MOTION FOR REHEARING

CLINTON, Judge.

Article 36.19,V.A.C.C.P. ¹ provides:

"Review of charge on appeal

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."

Our current statute is the lineal descendant of an act of the 33rd Legislature in 1913, ch. 138, p. 278, which amended what was then art. 743:

"Whenever it appears by the record in any criminal action upon appeal of the defendant that any of the requirements of the nine preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial, and all objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial."

I.

There has been disagreement over how these provisions relate to various types of error in the court's charge to the jury.Two schools of thought are identified in the appendix to the dissenting opinion filed on original submission of this cause.As espoused in Dowden v. State, 537 S.W.2d 5, 6 n. 1(Tex.Cr.App.1976), and purportedly applied since, one theory is that the "disregarded" requirements refer only to the requirement that counsel object to the charge prior to jury argument.Thus prior art. 743 and current Article 36.19 come into play only if there has been no objection to the charge at trial.Under this theory the current statute addresses only fundamental error in the charge; it sets no standard for what we shall call "ordinary reversible error."

The second theory proceeds on the supposition that the "calculated to injure" and "fair and impartial trial" phraseology describes the test which the Court, at least prior to the 1913amendment, used for fundamental error.However, under this second theory those phrases now come into play only if there has been an objection at trial to the jury charge, and therefore set up a "harmless error" standard.SeeDowden, supra(Douglas, J., dissenting).Further, as this second theory would have it, there is no separate statutory test for fundamental error where no objection has been made to the charge at trial, and indeed the Legislature in 1913 intended to end the doctrine of fundamental error.The second theory thus holds that, if the Legislature in 1913 had its way, there would never be a reversal for unobjected to error in the jury charge.

A third theory may appear in Judge Vollers' dissent in Brewer v. State, 572 S.W.2d 940, 941-944(Tex.Cr.App.1978).Judge Vollers seemed to accept the idea that the Court had used the "calculated to injure" and "fair and impartial trial" language as a test for fundamental error.But it was his view that Article 36.19 and art. 743 were originally meant as harmless error rules which came into play where an objection had been made at trial.Thus he argued that Article 36.19 applies to ordinary reversible error and has relevance to fundamental error only to the extent that a court should not reverse for fundamental error if in fact the error is harmless.The apparent contradiction in terms of "harmless fundamental error" is part of what has finally convinced us our recent course may be unsound; to the end of reexamining it we now proceed.

It is critical that we acknowledge from the outset the simple fact that no conceivable theory can reconcile the cases written on the subject over the last 130 years.Imprecise language, both statutory and decisional, has destroyed any hope of harmonizing all authoritative statements in any literal sense.But upon close scrutiny and reflection a pattern of concern emerges--a pattern, we believe, is also most consistent with and encouraging of the fair administration of justice.

A.

In the Old Code art. 594 mandated in a felony case that the judge of a trial court, after argument to the jury had been concluded, deliver to it a written charge "in which he shall distinctly set forth the law applicable to the case," without expressing any opinion as to weight of evidence or summing up testimony.The next six articles also imposed certain duties and responsibilities on the trial court in given circumstances, and the seventh allowed the jury to request and receive a copy of "the charges given."Then came art. 602, requiring reversal in prescribed circumstances, viz:

"Art. 602.Whenever it appears by the record in any criminal action taken to the Supreme Court upon appeal by defendant, that the instructions given to the Jury were verbal (except where so given by consent in a case of misdemeanor,) or that the District Judge has departed from any of the requirements of the eight preceding Articles, the judgment shall be...