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717 S.W.2d 608

Boozer v. State

Court of Criminal Appeals of Texas

Decided September 19, 1984

Court of Criminal Appeals of Texas · decided 1984-09-19

Key passage — most relied on by later courts

“Because a verdict of “guilty” necessarily means the jury found evidence of that on which it was authorized to convict, the sufficiency of the evidence is measured by the charge that was given. It follows that if evidence does not conform to the instruction given, it is insufficient as a matter of law to support the only verdict of “guilty” which was authorized, [footnote omitted]. [Emphasis in original]. Under the trial court’s charge in the instant case, the only verdict authorized in view of the evidence was “not guilty;” restated, had the jury followed the trial court’s instructions, appellant would have been acquitted.”

quoted by 2 later decisions, including Marras v. State, Warren v. State

“Before the court reads his charge to the jury, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury.”

quoted by 1 later decision, including Marras v. State

Relies on Benson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1984-09-19

How this case has been cited

Cited by 99 later decisions — most recently March 2013 · most notably Malik v. State (1997), Gollihar v. State (2001)

96 state decisions

6801984199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

TEAGUE, Judge,

¶1concurring to this court’s decision to deny the State leave to file its first motion for rehearing.

¶2On original submission, a majority of this Court, in ordering that an acquittal be en*615tered on appellant’s behalf, correctly held that “Under the trial court’s charge in the instant case, the only verdict authorized in view of the evidence was ‘not guilty;’ restated, had the jury followed the trial court’s instructions, appellant would have been acquitted.” I filed a concurring opinion, agreeing with what the majority had stated and held.

¶3Judge Campbell has filed a concurring opinion to this Court’s denying the State leave to file its first motion for rehearing. For reasons the majority stated on original submission, I agree with Judge Campbell that the majority correctly denies the State leave to file its first motion for rehearing.

¶4I write only because I am concerned with how much weight some prosecuting attorneys and trial judges might give Judge Campbell’s very logically sounding and appealing concurring opinion.

¶5Judge Campbell states in his concurring opinion, inter alia, without any supporting legal authority: “As I see it, the function of Art. 36.15, V.A.C.C.P., from the State’s standpoint is that it permits the State to notify the trial judge that the jury charge requires the State to prove more than is minimally necessary under the indictment and the evidence to obtain a conviction.” I pause to point out that I have yet to find any decision by this Court where this Court has ever, either expressly or implicity, made such a statement or holding, in the context of a written requested charge by the prosecuting attorney.

¶6With this statement as his starting point, Judge Campbell then writes a very logical opinion to reach the result that if the prosecutor uses Art. 36.15, supra, to complain about what he perceives to be error in the trial court’s final charge to the jury, then, if there is error as occurred in this cause, such error would only be trial error, and not what has now come to be known as “Burks-Greene error.” Someday what Judge Campbell has stated may become the law of this State. However, at this time, such is not the law of this State.

¶7A careful reading of Articles 36.14, 36.-15, and 36.16, V.A.C.C.P., which pertain to making objections to the court’s preliminary and final charge to the jury, and the submission of requested special charges, reveals that through Legislative omission, the State may not invoke the provisions of Articles 36.14 and 36.16, supra. It is only entitled to “present written instructions and ask that they be given to the jury,” pursuant to Art. 36.15, supra. Now, from the State’s standpoint, what does this provision mean?

¶8I have not yet found a decision by this Court which has, as applicable to a given case, construed the provisions of Art. 36.15, supra, from the State’s standpoint. Unfortunately, some judges of this Court, including myself, are guilty of having loosely stated that the prosecuting attorney did not “object” to the final jury charge. However, whenever this has occurred, such was done only to emphasize the point that a given record on appeal was bare of any complaint by the prosecution to the trial court’s final jury charge. See, for example, Benson v. State, 661 S.W.2d 708, 712 (Tex.Cr.App.1982) (Opinion on State’s First Motion for Rehearing).

¶9In this instance, because the State did not submit any type of written requested instruction, anything stated regarding the prosecution submitting written requested instructions is obiter dictum. For me to add to what Judge Campbell has written would only make matters worse and would, of course, aggravate the obiter dictum that is in his concurring opinion.

¶10Therefore, I will close with these words of caution: Until this Court is given the opportunity to write on and discuss the meaning of the provisions of Art. 36.15, supra, as they might relate to a written requested instruction by the prosecution, if I were a prosecutor or a trial judge, I would view with caution what Judge Campbell has written, and suggested in his concurring opinion.

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