Posey v. State

• Decision Date: 25 March 1998
• Docket Number: No. 427-96,427-96
• Citation: 966 S.W.2d 57
• Parties: Phillip Anthony POSEY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 57

966 S.W.2d 57

Phillip Anthony POSEY, Appellant, v. The STATE of Texas.

No. 427-96.

Court of Criminal Appeals of Texas En Banc.

March 25, 1998.

Velda R. Faulkner, Houston, for appellant.

Sandra J. Pomerantz, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge, delivered the opinion of the Court joined by MANSFIELD, KELLER, PRICE and HOLLAND, Judges.

A jury convicted appellant of unauthorized use of a motor vehicle. See V.T.C.A., Penal Code, Section 31.07. After finding the indictment's two enhancement paragraphs "true," the trial court sentenced appellant to thirty-five (35) years' confinement.

The State's evidence shows Wanda Thomas owned a black 1988 Jaguar that usually was driven by her friend, "Chuck" Williams. On November 4, 1993, Williams parked the Jaguar at Hobby Airport in Houston from where Williams caught a flight to Corpus Christi. When Williams left the Jaguar at the airport, the car was locked, undamaged and in good condition with its alarm system activated. A spare key to the Jaguar was in the console.

On November 7, 1993, Deputy Ervin saw appellant driving the Jaguar. Ervin stopped appellant because the registration sticker on the Jaguar was expired. A key was in the Jaguar's ignition. Appellant could not produce a driver's license or proof of insurance. After Ervin checked the Jaguar's registration and found out it belonged to Thomas, appellant told Ervin that someone he had just met named "Chuck," whose last name and address appellant did not know, gave appellant permission to drive the Jaguar. Inside the glove compartment of the Jaguar were some repair bills with the name "Chuck" written on them. Ervin noticed the inside door panel on the driver's side of the Jaguar was pulled back and the wires to its alarm system were cut. Ervin arrested appellant. Thomas and Williams testified they never gave appellant permission to drive the Jaguar.

Appellant did not testify at trial. However, he presented the testimony of two witnesses--Larry Harris and Kenneth Posey, who was appellant's cousin. These witnesses testified they saw a man named Charles Yates give appellant the keys to the Jaguar on November 7, 1993. ¹ Neither of these witnesses claimed "Chuck" Williams and Charles Yates were the same person. Both of appellant's witnesses were convicted felons. As far as we can tell from the record, Charles Yates was never located, and no one named Charles Yates testified at appellant's trial that he gave appellant permission to drive the Jaguar.

In addition, on cross-examination, Harris testified Charles Yates lived with him for about a week in early November 1993 even though he had met Yates only about a week or two prior to this time. Harris also testified he saw Yates give appellant the keys to the Jaguar about twenty minutes after Harris introduced appellant to Yates. Harris also testified he did not know what Yates did for a living and he did not know where Yates was at the time of trial.

On cross-examination, appellant's other witness, his cousin Posey, testified he did not personally know Charles Yates; he knew "of him." Posey also testified he was in the Jaguar with appellant when Ervin stopped it, and he observed no damage to the Jaguar including anything that could be interpreted as damage consistent with an auto theft which was contrary to what Ervin observed after he stopped the Jaguar. Posey also testified the thought crossed his mind that it was a "bit unusual" for appellant to be driving a Jaguar.

"Q. You didn't think it was the least bit unusual that [appellant] would be driving a 1988 black Jaguar?"

"A. Well, it ran across my mind."

During closing arguments, appellant argued the jury should acquit him because appellant had permission to drive the car from Charles Yates whom appellant thought had rightful possession of the car. The prosecutor argued, among other things, that appellant's witnesses and the story they told were unworthy of belief.

"We talked about on voir dire when is the last time you loaned your car to somebody you didn't know their last name? When is the last time you borrowed a car from somebody you didn't know their last name?

* * *

"[Appellant] is driving a car, a black '88 Jag from a guy he just met, supposedly, with the door bent back and the alarm cut, from a friend he didn't know the last name of and had only known for a couple of days."

The application paragraph of the jury charge instructed the jury to convict appellant if it found appellant operated the Jaguar without the effective consent of Thomas. The jury convicted appellant.

On direct appeal to the Court of Appeals, appellant complained for the first time that the trial court reversibly erred by not sua sponte instructing the jury on the defense of mistake of fact. See V.T.C.A., Penal Code, Section 8.02(a). ² It is undisputed that at trial appellant did not request this instruction and he did not object to the absence of this instruction in the jury charge.

Applying this Court's opinion in Almanza v. State, 686 S.W.2d 157, 160-74 (Tex.Cr.App.1984) (op. on reh'g), the Court of Appeals reversed appellant's conviction and remanded the cause for a new trial upon determining appellant was "egregiously harmed" by the absence of a mistake of fact instruction in the jury charge. See Posey v. State, 916 S.W.2d 88 (Tex.App.--Houston [1st Dist.] 1996) (not yet reported). Citing this Court's opinion in Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Cr.App.1992), the Court of Appeals concluded appellant was "egregiously harmed" because the jury was precluded from considering appellant's only defense. ³

We granted the State's petition for discretionary review to decide whether Almanza applies to the omission in the jury charge of defensive issues that have not been properly preserved by a defendant's request or objection. We hold Almanza does not apply in these circumstances.

The State argues Almanza applies only to an "error" in the jury charge and it cannot be said a trial court errs in failing to charge the jury on a defensive issue that was never requested or otherwise brought to the trial court's attention. The State claims any other holding would distort "the entire nature of our adversarial system" by interfering with strategic decisions that should be left to the discretion of the defendant and his lawyer. The State also claims any other holding would effectively impose a duty on trial courts to sua sponte instruct the jury on defensive issues. ⁴

In Almanza, this Court set out the "basic framework for analysis" on appeal to preserved and unpreserved "errors" in the jury charge. See Almanza, 686 S.W.2d at 171-74. This framework is not a court-made rule; it is based on this Court's interpretation of Article 36.19, V.A.C.C.P., and its statutory predecessors which this Court construed as separately containing the "harm" standards for both "fundamental error and ordinary reversible error" in jury charges. See Almanza, 686 S.W.2d at 171. Almanza also disapproved of this Court's cases which suggested jury charge error requires an "automatic" reversal. See Almanza, 686 S.W.2d at 172-74; but see Reyes v. State, 938 S.W.2d 718 (Tex.Cr.App.1996) (trial court's failure to submit "reasonable doubt" jury instruction requires "automatic" reversal).

Neither "harm" standard set out in Article 36.19 as construed by Almanza applies unless an appellate court first finds "error" in the jury charge. See Almanza, 686 S.W.2d at 174 (finding error in the court's charge to the jury begins--not ends--the inquiry). Neither Article 36.19 nor Almanza have any application in determining whether there is "error" in the jury charge. This is because neither "harm" standard to jury charge "error" set out in Article 36.19 as construed by Almanza applies unless the record first shows that any requirement of various statutory provisions referenced in Article 36.19 "has been disregarded." ⁵ This defines the "error" for purposes of Almanza. The primary statutory provision referenced in Article 36.19 that could apply or be "disregarded" in cases like this is Article 36.14, V.A.C.C.P.

Therefore, the question boils down to whether Article 36.14 imposes a duty on trial courts to sua sponte instruct the jury on defensive issues, ⁶ or whether Article 36.14 permits a defendant to complain for the first time on appeal about the omission of unrequested defensive issues in the charge. In other words, pursuant to the "plain" language of Article 36.19, the issue in this case is whether "any requirement" of Article 36.14 "has been disregarded." This presents a question of legislative intent.

Consistent with general rules of procedural default, ⁷ the "plain" language of Article 36.14 mandates that a defendant must object in writing to claimed "errors" of commission and omission in the charge. The "plain" language of Article 36.14 further provides that this "is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof." (Emphasis Supplied). The "plain" language of Article 36.14 makes clear that a defendant must object to the charge before he may be heard to complain on appeal about "errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts." ⁸

Therefore, under this portion of Article 36.14, there generally is no "error" in the charge unless the defendant objects in writing to claimed "errors" of commission and omission in the charge. ⁹ When, under general rules of procedural default, an appellate court holds a defendant has procedurally defaulted a particular claim by not timely raising it in the trial court, the appellate court does not concede that "error" has occurred. In these situations, all ...