Barnett v. State

¶1concurring.

¶2While I agree with the outcome, I write separately because the improper Allen1 charge should have been addressed under the Almanza2 standard. Appellant complains that the trial court gave an improper oral instruction that was coercive. The majority discusses his complaint in terms of constitutional error and forfeiture. As the Texas Court of Criminal Appeals affirmed recently, it is settled law in Texas that jury charge error is to be reviewed under the Almanza standard, not Texas Rule of Appellate Procedure 44.2.3 Under Almanza, forfeiture does not occur.4 Instead, properly preserved error requires reversal as long as the defendant suffers some harm; error that is not properly preserved requires reversal only if the defendant suffered egregious harm.5

¶3Although Appellant argues that he objected to the erroneous charge, the objection did not clearly inform the trial court that he was complaining of the erroneous jury instruction. It was couched in terms *137of fearing “those two jurors may compromise their verdict in order to achieve a liken result.” As to the procedure of discussing their verdicts, at trial, Appellant’s counsel stated, “I certainly don’t have any complaint about the Court even going over it with them in detail like you did here a second time.” Appellant did not object to the charge being given orally. If Appellant lodged a timely objection to the supplemental jury charge, it was too subtle for me to discern. Consequently, I would analyze the trial court’s error under the egregious harm standard of Almanza.6

¶4As harm, Appellant points out that the jury assessed twenty years’ penitentiary time on count two, the problematic verdict, but then granted community supervision on counts three and four. Note that had the verdict remained deadlocked, Appellant would have received a mistrial on count two, not a conviction.7 The jury assessed a prison sentence only on count two. In the context of the entire case against Appellant, the trial court’s error in orally singling out the hold-out jurors and asking if they could change their votes caused Appellant egregious harm. I would sustain Appellant’s first point and reverse and remand on this ground.

¶5Because the majority improperly addresses Appellant’s jury charge complaint under Texas Rule of Appellate Procedure 44.2 and forfeiture, rather than Almanza, I can concur only in the result.