Gelinas v. State

• Decision Date: 15 May 2013
• Docket Number: No. PD–1522–11.,PD–1522–11.
• Parties: James Henry GELINAS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

398 S.W.3d 703

James Henry GELINAS, Appellant

v.The STATE of Texas.

No. PD–1522–11.

Court of Criminal Appeals of Texas.

May 15, 2013.

Douglas K. Fletcher, Asst. Dist. Atty., El Paso, for Appellant.

Mario A. Gonzalez, El Paso, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

KEASLER, J., announced the judgment of the Court and delivered an opinion, in which KELLER, P.J., HERVEY, and ALCALA, JJ., joined.

The State asks us to overrule Hutch v. State¹ upon which the lower court relied in finding that Gelinas suffered egregious harm from an erroneous jury instruction. Upon review, we believe Hutch was flawed and produces unjust results, and we hereby disavow it. We find the contested jury instruction in the instant case was erroneous, but egregious harm did not result. Accordingly, we reverse the court of appeals' judgment.

I. Background

A. Trial

Gelinas was charged with the offense of driving while intoxicated following a roadside stop conducted by Department of Public Safety Trooper Diego Marquez. At trial, Trooper Marquez testified that he stopped Gelinas because he believed Gelinas failed to signal out of a private parking lot and that the light illuminating Gelinas's license plate was not white, as required by law. Marquez conceded, however, that the former ground for the stop proved insupportable because the Transportation Code does not require drivers to signal when turning out of private lots. As a result, the sole ground for the stop became Gelinas's alleged non-compliance with Transportation Code section 547.322(f), mandating that lights illuminating license plates be white. ² Trooper Marquez testified that the light illuminating the license plate was not white, though he had difficulty recalling the actual color of the light. The State also offered video from Trooper Marquez's in-car police camera, though the testimony at trial suggests that the video fails to conclusively establish the color of the license plate light. According to Marquez, Gelinas exhibited a number of signs of intoxication after being pulled over and performed poorly on the standardized field sobriety tests. Based on his observations, Trooper Marquez concluded that Gelinas was intoxicated.

In addition to arguing that he was not intoxicated, Gelinas argued at trial that the light illuminating his license plate was, in fact, white. In support of his position, Gelinas referred to Trooper Marquez's in-car camera video as proof that the light was white. Additionally, Gelinas offered the testimony of his wife, who stated that the light was white and that the car had passed numerous state inspections. A photograph of the license plate taken by Gelinas's wife sometime after the incident was also offered at trial, though, like as with the video, it appears from the testimony at trial that the photograph was somewhat inconclusive as to the color of the license plate light.

Because the issue regarding the color of the light was contested, the trial judge included an instruction pursuant to Texas Code of Criminal Procedure article 38.23(a)³ in the jury charge, which stated:

You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity. Now, bearing in mind this instruction, if you find from the evidence that on the occasion in question the Defendant, James Henry Gelinas, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle's license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever.

The instruction was clearly erroneous in that it stated the exact opposite of what the law provides. In truth, if the jury found that Gelinas was driving on a public road and failed to comply with the law requiring a white light, the stop would have been legal, not illegal, and thus the jury could have properly considered the testimony and conclusions of Trooper Marquez.

Gelinas was found guilty of driving while intoxicated and was sentenced to 180 days confinement probated for fifteen months and fined $1000.

B. Appeal

On appeal, Gelinas asserted, among other things, that he suffered egregious harm as a result of the charge error.⁴ Because Gelinas did not object to the erroneous jury instructions at trial, the court of appeals conducted an Almanza⁵ harm analysis to determine whether the error resulted in egregious harm.⁶ Under Almanza, courts evaluate harm by taking into account (1) the entire jury charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information containedin the record as a whole.⁷ In its analysis, the court of appeals noted the similarities between the facts of the instant case and those in our Hutch v. State plurality opinion, which essentially stands for the proposition that when a defendant fails to object to a misstatement of the law relevant to a contested issue in a jury charge's application paragraph, the fact that jury arguments properly explained the law cannot render the resulting error harmless. The court of appeals opted to follow our reasoning in Hutch, offering little more than an account of our analysis in Hutch and a blanket conclusion of egregious harm.⁸ That court reversed and remanded the case accordingly.⁹ Upon review, we conclude that Hutch lacks the persuasive value to which the court of appeals attributed it.

II. Analysis

A. Hutch

In Hutch, there was a similarly erroneous article 38.23(a) jury instruction containing a misstatement of the law.¹⁰ Hutch's arrest was based on the discovery of drugs in a car which was allegedly pulled over because the driver and the passenger, Hutch, were not wearing seatbelts. ¹¹ Hutch claimed that he and the driver had been wearing their seatbelts and thus the stop was illegal and all subsequently obtained evidence inadmissible.¹² Because the issue was contested, the trial judge included an article 38.23 instruction.¹³ The instruction, however, erroneously stated the exact opposite of what the law provided. It instructed the jury that if they found that the driver of the car and Hutch had not been wearing their seatbelts, the stop was illegal, and they should disregard the officer's testimony and conclusions.¹⁴ In fact, in this scenario, the stop would have been legal and the jury could have considered the testimony and conclusions of the officer.¹⁵

In Hutch, we concluded that, with regard to the first Almanza factor addressing the entire charge, the error was “unquestionably wrong” and “was 180 degrees opposite of what it should have been.” ¹⁶ We held this factor weighed in favor of finding egregious harm because the error occurred in the application paragraph of the jury charge—the portion which authorizes the jury to act—and also on the appellate presumption that the jury understood and followed the jury charge absent evidence to the contrary.¹⁷

Hutch continued its analysis by addressing the second Almanza factor, calling for consideration of the state of the evidence. We held that the issue was a contested one, and noted that no instruction would have been required otherwise.¹⁸

As for the third Almanza factor—arguments of counsel—we originally concluded that the arguments of counsel, though correct, were insufficient to cure the resulting error.¹⁹ We based this conclusion, in part, on the fact that it has long been said that “jury arguments are not evidence and the jury may not consider them as such” and on the Supreme Court's holding that “arguments of counsel cannot substitute for instructions by the court” in addition to language from one of our own prior opinions stating that “jury argument is not a substitute for a proper jury charge.” ²⁰ In addition, we cited case law suggesting that a jury argument alone is never controlling in an analysis under Almanza.²¹

Finally, our Hutch opinion made no mention of any other relevant considerations that might fit within the broad “catch-all” category that constitutes the fourth Almanza factor.

Because it is flawed and produces unjust results, we decline to apply Hutch's reasoning to a jury charge error like that presented in this case. First, Hutch'sAlmanza analysis did not attribute the appropriate weight to the various factors in light of the facts. As for its analysis of the first Almanza factor—the jury charge in general—we do not agree with the great weight the Hutch plurality placed on this factor, weighing in favor of finding egregious harm, simply because of the error's location in the application paragraph. Just as Presiding Judge Onion stated in his concurring and dissenting opinion in Almanza, we, too, question the wisdom of reversing upon “finding a single defect in the exalted ‘application paragraph’ ... without consideration of the charge as a whole, or considering whether the jury was in any way misled.” ²²

Further, the plurality overlooked the possibility that it is the very clarity of the error that may have mitigated any resulting harm. The erroneous instruction in the application paragraph in Hutch immediately followed a correct statement of the law in the...