Warner v. State

• Decision Date: 13 February 2008
• Docket Number: No. PD-1681-05.,No. PD-1680-05.,PD-1680-05.,PD-1681-05.
• Parties: Craig Jonathan WARNER, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

245 S.W.3d 458

Craig Jonathan WARNER, Appellant v. The STATE of Texas.

No. PD-1680-05.

No. PD-1681-05.

Court of Criminal Appeals of Texas.

February 13, 2008.

Scott K. Stevens, Harker Heights, for Appellant.

Larry W. Allison, District Attorney, Lampasas, Jeffrey L. Van Horn, State's Atty., Austin, for State.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN JJ., joined.

A jury convicted the appellant of two offenses of aggravated sexual assault of a child. The appellant claimed on appeal that error in the jury charge permitted the jury to convict him on less than a unanimous verdict. The Third Court of Appeals affirmed, finding error but holding that the appellant had not been egregiously harmed.¹ On petition to this Court, the appellant challenges the Court of Appeals' harm analysis. We vacate and remand.

The appellant was indicted for acts against two girls (his stepdaughter and her cousin) occurring over the course of a weekend. The two indictments were identical, and each contained two counts. The State later abandoned the second count in each indictment. Count One charged the appellant with aggravated sexual assault² in three paragraphs, which alleged that on or about March 23, 2003, the appellant:

did then and there intentionally or knowingly cause the penetration of the female sexual organ of [victim], a child younger than 14 years of age who was not the spouse of said defendant by inserting defendant's finger,

Paragraph Two: did then and there intentionally or knowingly cause the sexual organ of [victim] a child younger than 14 years of age who was not the spouse of said defendant to contact the mouth of defendant,

Paragraph Three: did then and there intentionally or knowingly cause the anus of [victim], a child younger than 14 years of age who was not the spouse of said defendant to contact the sexual organ of the defendant.

The appellant pleaded not guilty to the two offenses, and the two causes were tried to a jury in a single trial. The jury charge set out the law, in pertinent part, as follows:

Our law provides that a person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes penetration of the female sexual organ by any means or causes the anus of a child under 14 years of age to contact the sexual organ of another person; or causes the sexual organ of a child under 14 years of age to contact the mouth of another person, including the actor and the child is not the spouse of the person committing the offense.

The jury charge also included the following application paragraph for the first victim:

Now if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of March, 2003 in Lampasas County, Texas the defendant, CRAIG JONATHAN WARNER, did then and there intentionally or knowingly cause the penetration of the female sexual organ of [victim 1], a child younger than 14 years of age, who was not the spouse of said defendant by inserting defendant's finger or cause the sexual organ of [victim 1] to contact the defendant's mouth, or did then and there intentionally or knowingly cause the anus of [victim 1] who was not the spouse of the defendant to contact the sexual organ of the defendant, then you will find the defendant guilty of aggravated sexual assault and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of aggravated sexual assault and say by your verdict "Not Guilty" of said offense.

The second application paragraph was identical, except for the name of the victim and the following language: "a child younger than 14 years of age, who was not the spouse of said defendant by the defendant's finger or cause the female sexual organ of [victim 2] to contact the defendant's mouth ..." (emphasis added). The appellant did not object to the charge. The jury found the appellant guilty of the two offenses.

On appeal, the appellant claimed that error in the jury charge precluded a unanimous jury verdict required by the Texas Constitution and state statutes. He argued that the instructions allowed the jury to return a general verdict of guilty without all twelve jurors unanimously agreeing that the appellant committed any one of the three offenses submitted in the disjunctive.

The Court of Appeals found error in the jury charge and set out the standard of harm, which is analyzed under Almanza v. State.³ The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.⁴ Because the appellant did not object to the charge, the error does not result in reversal "unless it was so egregious and created such harm that appellant was denied a fair trial."⁵ To determine "egregious harm," a reviewing court examines "the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole."⁶ The appellant must have suffered actual, rather than theoretical, harm.⁷ "Errors that result in egregious harm are those that affect `the very basis of the case,' `deprive the defendant of a valuable right,' or `vitally affect a defensive theory.'"⁸

After an examination of the record, the Court of Appeals concluded the appellant was not egregiously harmed by the error.⁹ The Court noted that the State introduced evidence to support all three paragraphs, and concluded: "Viewing the indictment, evidence, and charge in its entirety, it is evident that the jury simply did not believe the defense case."¹⁰

In this Court, the appellant presents two grounds for review: 1) The Court of Appeals incorrectly placed a burden on Appellant to show harm, and 2) The Court of Appeals failed to address the main assertions that supported Appellant's claim that the error in his case was egregious.

In his first ground, the appellant claims there is no burden on either party to show harm. We agree. The Court of Appeals, relying on Dickey v. State,¹¹ made the following statements:

It is the appellant's burden to prove that he suffered some actual, rather than merely theoretical, harm from the error.¹²

Examining these factors, we conclude that appellant has not carried his burden to prove that he suffered actual, rather than theoretical harm from the error.¹³

Based on the state of the record, appellant has not carried his burden to show that he suffered actual and not theoretical harm from any error.¹⁴

In Dickey, this Court said, "Since Dickey objected to the lack of the instruction at trial, he is entitled to a reversal if he can show some harm. It is Dickey's burden to prove that he suffered some actual, rather than merely theoretical, harm from the error."¹⁵ Although our remarks in Dickey may seem to indicate that an appellant has a burden to prove harm, this position is not supported by the weight of our jurisprudence.

Almanza itself, which set the standard to be used in such cases, places no burden on either party to show harm.¹⁶ Arline v. State analyzed jury charge error under Almanza, and likewise placed no burden on either party.¹⁷

Almanza and Arline are the sources for the language quoted above from Dickey and relied on by the Court of Appeals. Dickey cited Almanza in stating, "Since Dickey objected to the lack of the instruction at trial, he is entitled to a reversal if he can show some harm."¹⁸ But the language in Almanza to which Dickey referred said nothing of burdens, but rather,

If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of defendant," which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.¹⁹

Then Dickey, citing Arline, said, "It is Dickey's burden to prove that he suffered some actual, rather than merely theoretical, harm from the error."²⁰ In fact, the original statement in Arline reads, "a defendant must have suffered `some' actual, rather than theoretical, harm from the error."²¹

Prior to Dickey, a few opinions from this Court, beginning with LaPoint v. State,²² assigned the burden to the defendant. In LaPoint, we conducted a harm analysis under Almanza, and in dictum we said, "It is the defendant's burden under Art. 36.19 to persuade the reviewing court that he suffered some actual harm as a consequence of the charging error. If he is unable to do so, the error will not result in a reversal of his conviction."²³ The statement was later relied on by this Court in three cases analyzing jury charge error under Almanza: Belyeu v. State;²⁴ Abdnor v. State,²⁵ referring to a "burden of proof"; and Alvarado v. State,²⁶ referring to a "burden of persuasion."

Several years after Abdnor and only a few months after Dickey, in Ovalle v. State,²⁷ we seemed finally to have resolved the issue by expressly rejecting the concept of burdens of proof in an Almanza harm analysis. In her dissent, Judge Keller quoted Abdnor: "[T]he burden of proof lies with the defendant to persuade the reviewing court that he suffered some actual harm as a consequence of the charging error."²⁸ The Ovalle majority responded with the following statement:

We do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, as the dissent would have it. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove "actual" harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless-error decision.²⁹

Since Ovalle, a few courts of...