Cedillo v. State

¶1dissenting and concurring on rehearing.

¶2On reflection, I believe the majority opinion is incorrect in holding that jury instruction error is waived when defense counsel states he or she has “no objection” *369to the charge. Almanza1 requires a defendant to climb the high hurdle of “egregious harm” in such cases, but the error itself is not considered waived. The court of criminal appeals has continued to use the Al-manza test for unobjected-to error without ever stating that waiver by affirmative approval of the jury charge negates the need for egregious harm analysis on appeal. See, e.g., Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (“Because appellant did not preserve the jury charge error, resolution of the instant case requires an egregious harm analysis”). The purpose of the egregious harm test for unob-jected-to error is to ensure review of jury instruction errors not caught by defense counsel or the trial court at the time of trial. As a near-universal rule, the trial court always inquires whether the defense has any objections to the charge. Alman-za’s egregious harm test is used in those instances where counsel did not recognize the error and therefore failed to make an appropriate objection.

¶3If the majority opinion stands, it is likely there will never again be a case decided in the Court of Appeals for the Second District of Texas in which Almanza’s test for unobjected-to error is applied. Instead, those cases will simply be disposed of on grounds that “nothing is presented for review” because defense counsel either: (1) acquiesced to the error by responding “no objection” to the proposed instructions; or (2) lodged an objection to an unrelated portion of the instruction and then responded “no other objections.” In essence, the Almanza test for unobjected-to error will be completely swallowed up by the rule announced in the majority decision.

¶4To be clear, I do not disagree with the result the majority reaches — appellant’s conviction and sentence, in my view, should be affirmed. I merely believe that we are required to consider the merits of appellant’s claim of jury charge error under the simple and straight-forward standard set forth in Almanza. I therefore dissent to the majority’s denial of appellant’s motion for rehearing.