Hutch v. State

• Decision Date: 03 April 1996
• Docket Number: No. 1231-94,1231-94
• Parties: J.C. HUTCH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 166

922 S.W.2d 166

J.C. HUTCH, Appellant, v. The STATE of Texas, Appellee.

No. 1231-94.

Court of Criminal Appeals of Texas,

En Banc.

April 3, 1996.

Frances M. Northcutt, Houston, for appellant.

Alan Curry, Assist. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

A jury convicted appellant of possession of cocaine and the trial judge assessed punishment at forty years confinement. The Court of Appeals affirmed. Hutch v. State, 881 S.W.2d 92 (Tex.App.--Houston [1st] 1994). We granted review to consider whether the Court of Appeals correctly applied the test for determining whether an erroneous jury charge caused egregious harm. We will reverse.

I.

A. The Trial Court

According to the State's testimony, Houston police officers stopped a vehicle, in which appellant was a front-seat passenger, because neither appellant nor the driver were wearing seat belts. As the officers approached the vehicle, appellant leaned forward and dropped an object on the floor of the car. This object was later determined to be cocaine. However, appellant testified he and the driver were wearing their seat belts at the time of the stop.

Because appellant's testimony contradicted that of the officers, the legality of the stop was called into question. Accordingly, the trial judge instructed the jury as required by Tex.Code Crim.Proc.Ann. art. 38.23 that illegally obtained evidence was not admissible:

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

The trial judge then charged the jury as follows:

An officer is permitted, to make a temporary investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to crime or a criminal offense. Now bearing in mind these instructions, if you find from the evidence that on the occasion in question the driver and front seat passenger were not wearing seat belts immediately preceding the stop and detention by the police officer, 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 the testimony of the officer 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. ¹

Near its end, the jury charge stated:

You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony, but the law you shall receive in these written instructions, and you must be governed thereby. ²

Appellant did not object to the jury charge. Id.

B. The Court of Appeals

On appeal, appellant contended the charge was not a correct statement of the law. The Court of Appeals agreed:

Appellant accurately points out that the court misstated the law. The police could lawfully detain if appellant were not wearing a seatbelt, and the police could not lawfully detain if appellant were wearing a seatbelt. The statement that a detention was illegal if appellant were not wearing a seatbelt is unquestionably wrong. (Citation omitted.)

Hutch, 881 S.W.2d at 94.

Because there was no objection to the erroneous jury charge, the Court of Appeals purported to conduct the harm analysis prescribed by Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App.1993), and Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). The Court concluded no egregious harm was shown because the jury was correctly instructed elsewhere in the jury charge, and further, because the prosecutor and defense attorney correctly argued the law. Hutch, 881 S.W.2d at 94-95. The Court reasoned the correct general instruction, coupled with the arguments of the attorneys, cured any error resulting from the incorrect application of the law to the facts:

... It was clear to the jurors that they were not to consider the evidence seized if they found that appellant and the driver were wearing seat belts, or if they had a reasonable doubt about that fact.

Id., 881 S.W.2d at 95 (emphasis in original).

Justice O'Connor dissented, arguing the misstatement of the law constituted egregious harm and deprived appellant of a fair trial. Id., 881 S.W.2d at 96. Justice O'Connor found nothing in the record to demonstrate the jury correctly understood or applied the law, and argued: "It cannot be harmless error to instruct the jury that the law is the opposite of what it actually is." Ibid. Appellant petitioned this Court for review of the Court of Appeals' decision. The State did not file a cross-petition.

II.

The Almanza

Standard of Harm

The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case:

It is not the function of the charge merely to avoid misleading or confusing the jury; it is the function of the charge to lead and to prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues.

Williams v. State, 547 S.W.2d 18, 20 (Tex.Cr.App.1977). The jury charge must allow the jury to determine the defendant's guilt in light of the evidence and the law. Benson v. State, 661 S.W.2d 708, 715 (Tex.Cr.App.1982). And, absent evidence to the contrary, we presume the jury followed the law provided by the charge. See, Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App.1987) (op'n on reh'g); and, Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Cr.App.1983).

A.

In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (op'n on reh'g), the defendant raised for the first time on appeal a variance between the jury charge and his indictment. Id., 686 S.W.2d at 159. The Court of Appeals found error in the charge and reversed. However, we reviewed that decision and, in the process, dispensed with the practice of automatically reversing upon a finding of jury charge error.

In Almanza, we held that Tex.Code Crim.Proc.Ann. art. 36.19 prescribed the manner in which jury charge error is reviewed on appeal. Almanza, 686 S.W.2d at 171. First, an appellate court must determine whether error exists in the jury charge. Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App.1986). The degree of harm necessary for reversal depends upon whether the error was preserved. Ibid. Error properly preserved by an objection to the charge will require reversal "as long as the error is not harmless." Almanza, 686 S.W.2d at 171. We have interpreted this to mean any harm, regardless of degree, is sufficient to require reversal. Arline, 721 S.W.2d at 351. However, when the charging error is not preserved a greater degree of harm is required. This standard of harm is described as "egregious harm." Almanza, 686 S.W.2d at 171. We explained that errors which result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Id., 686 S.W.2d at 172 (citations omitted). Moreover, we do not require direct evidence of harm to establish egregious harm. Castillo-Fuentes v. State, 707 S.W.2d 559, 563, n. 2 (Tex.Cr.App.1986).

In either event, when conducting a harm analysis the reviewing court may consider the following four factors: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App.1993) (citing Almanza).

B.

Because appellant did not preserve the jury charge error, resolution of the instant case requires an egregious harm analysis. Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis. We have undertaken that task on several occasions to determine whether the courts of appeals correctly applied the analysis required by Almanza.

For example, in Ruiz v. State, 753 S.W.2d 681, 686 (Tex.Cr.App.1988), the Court focused on the charge itself to determine egregious harm. Ruiz was charged with murder but the record contained some evidence that Ruiz may be guilty only of the lesser included offense of voluntary manslaughter. However, the trial judge failed to instruct the jury on the State's burden to prove that Ruiz's actions were not the result of sudden passion arising from an adequate cause in the murder application paragraph. We held Ruiz suffered egregious harm because a possibility existed that the jury was confused and misled into ending their deliberations under the incorrect instruction on the law. The charge lowered the State's burden of proof, creating the possibility Ruiz was convicted on less than all the elements of murder. Id., 753 S.W.2d at 684.

In Manning v. State, 730 S.W.2d 744 (Tex.Cr.App.1987), a jury trial was held to determine the competency of the defendant. Id., 730 S.W.2d at 745. Although proof of a prior, unvacated finding of incompetency was produced, the trial judge instructed the jury that the State had the burden of proving the defendant competent to stand trial by a preponderance of the evidence. We held the charge incorrectly instructed the jury on the State's burden of proof and found egregious harm:

In light of the existing adjudication of incompetency ... we cannot say that appellant was not harmed by the jury's consideration of the...