Lang v. State

¶1concurring.

¶2My dissenting Brother Teague is so determined to fulminate against the opinion of this Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), that he blinks reality in at least one major and in a couple of relatively minor respects.1

¶3A major reality of the “egregious harm” formulation developed in Almanzais that it is reactionary in the salutary sense that there is ample precedent to guide appellate courts in applying the test. Indeed, the opinion takes great pains to examine interpretations and constructions of former code of criminal procedure article 743 by judges of the Court soon after it became law in order to demonstrate that in truth and fact “egregious harm” of Almanzais substantially and in essence “fundamental error” as then perceived by judges who as state *693senators had sponsored and supported the legislative enactment in 1913. See Almanza, Part I, subpart B, at 167-171.

¶4Now as then the judge of a trial court bears the ultimate responsibility to prepare and submit to the jury a correct charge on the law, or suffer appellate revision if error is properly presented or claimed, and nothing in Almanzawill excuse a failure to discharge that responsibility. What Almanzareally undertakes to change is pointedly identified, viz:

“The modern trend of the Court first to label certain errors ‘fundamental’ then automatically reverse convictions without regard to the nature and harm of the error in the case, [which] with Robinson [v. State, 553 S.W.2d 371 (Tex.Cr.App.1977) ] ... became almost suddenly firmly entrenched as a policy of the Court.” Id., at 172-173.2

¶5Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), had catalogued kinds of “fundamental error” in charges of the trial court that were generally perceived to call for reversal. Accordingly, Almanzaoverruled Cumbie“[t]o the extent it holds any charge error requires ‘automatic’ reversal,” as well as “all other opinions inconsistent herewith.” Almanza, at 174.3

¶6As to whether “egregious harm” is, as Judge Teague insists, “a test on appeal that no convicted person can ever pass,” the reality is that one need only examine past opinions that are not inconsistent with Almanza. Several are cited in Almanza at 172; a noteworthy one is Ross v. State, 487 S.W.2d 744 (Tex.Cr.App.1972), in which charge error was found to be “fundamental and calculated to injure the rights of the appellant to the extent he has not had a fair trial,” in that it authorized conviction “under a theory not charged in the indictment” and the evidence was “insufficient to support a conviction ... under the allegations in the indictment.” Compare Jefferson v. State, 487 S.W.2d 331 (Tex.Cr.App.1972).

¶7Turning to the admixture of ethics and advocacy broached by Judge Teague, suffice to say that an advocate will “represent his client strenuously and faithfully as required by the Canons of Ethics [read Code of Professional Responsibility]” by pointing out defects in a charge to a jury when it is to his client’s benefit to do so, rather than risk an appellate determination that what counsel believed to be “a fundamentally defective jury charge” is not that at all. The instant case illustrates the reality of how alert and effective advocacy in the trial court might well have saved the day for appellant qua accused.

¶8The indictment alleged ingredients of theft by appropriation and particularized that “such appropriation was without effective consent since no assent in fact was given by the owner ...” The facts of the matter are, according to the court of appeals, that while Cathy Moorehead, the complainant, and friends were seated in a restaurant, appellant joined and engaged them in conversation. Noticing that Moorehead was wearing a gold ring with a small diamond, appellant requested to see the ring; she took it off her finger and handed it to him, subjectively expecting him to look at it and return it to her. Soon displeased with aspects of his conversation, “to escape” appellant Moorehead and friends left the restaurant, forgetting momentarily that appellant still had her ring. Appellant and a companion followed them out, and appellant grabbed a purse from one of her friends and fled. He was seen several days later and arrested.

¶9Before the court of appeals the State acknowledged that “the evidence shows that appellant had the owner’s permission when he originally acquired possession [of *694the ring].” Lang v. State, supra, at 69. However, its theory was that “the material time of appellant’s intent is when he actually appropriated it without her consent.” Ibid. Thus the charge did not require the jury to find, as alleged in the indictment, that “appropriation was without effective consent since no assent in fact was given by the owner." Rather, it instructed the jury that “it is necessary that the State establish by the evidence beyond a reasonable doubt that at the time of the appropriation of the property, if any, the defendant appropriated the same by means of deception ..., and it authorized the jury to find appellant guilty if it believed that appellant did appropriate the ring “without the effective consent of the owner,” Moorehead.

¶10Putting aside propriety of the charge under the circumstances, for that is for the court of appeals to decide on remand, I suggest that had counsel strenuously objected to the instruction and the application paragraph and persuaded the court to substitute therefor instructions that comported with allegations of the indictment, he would have been in a better position to convince the jury that contrary to the allegation “no assent in fact was given by the owner,” she did indeed give her permission for appellant to take the ring. Failing that, however, the error would have been preserved, and under the other feature of Almanza“reversal is required if the error is ‘calculated to injure the rights of appellant,’ which means no more than there must be some harm to the accused from the error,” id., at 171 (emphasis in original).

¶11As it was though counsel found himself having to argue against a theory of “deception” so esoteric that a jury, knowing full well that his client made off with the ring, was not likely to devote a great deal of time and effort trying to sort it all out.

¶12It may not be unethical for a lawyer who spots what he believes (hopes?) will turn out to be “a fundamentally defective jury charge,” to remain silent about it, but surely it is not effective advocacy to remain silent about failure of a charge to instruct the jury in line with a crucial allegation in the indictment when the evidence is such as to amount to a defense to the accusation.

¶13In my judgment Almanzatends to encourage the ethical advocate for an accused “to represent his client strenuously and faithfully” in the matter of efficacy of the charge in protecting rights of his client. That is, after all, a responsibility which “rests on the shoulders of defense counsel.” Moses, Criminal Defense Source-book, § 13.20, p. 438. One who shirks that responsibility risks an appellate finding that the trial judge adequately discharged the statutory duty and function imposed by Article 36.14. It will then be too late to say that by remaining silent defense counsel was carrying out his role of advocate rather than being pressed into service as “an adjunct, unpaid briefing attorney for the trial judge.”

¶14With those observations I join the opinion and judgment of the Court.