Jacobs v. State

¶1SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

¶2On motion for rehearing the State insists that this court erred in its original opinion by not applying the Almanza1 test.

¶3So that no doubt will exist in the State’s mind, the Court has elected to supplement its original opinion of May 27, 1987 to provide further explanation for our judgment. The original opinion is hereby ordered to be published along with this supplemental opinion.

¶4The Almanza test was not applied, because the Court of Criminal Appeals, in Stone v. State, 703 S.W.2d 652 (Tex.Crim.App.1986) (en banc), the case upon which this Court relies in its original decision, and a case decided after Almanza, in a similar fact situation, declined to apply the Alman-za test.

¶5Furthermore, it seems elementary that if Almanza were applied, the failure to submit the issue in question for jury determination, amounted to “some” harm, because if the jury had determined the issue favorably to the appellant, the stop would have been illegal, thus the appellant would have been acquitted. See Arline v. State, 721 S.W.2d 348 (Tex.Crim.App.1986) (in the Almanza analysis, “some” harm means any harm.)

¶6The State’s motion for rehearing is overruled.

¶7HECHT, J., files a concurring opinion.

¶9ON MOTION FOR REHEARING

¶10concurring.

¶11On motion for rehearing, the State urges us to consider whether the trial court’s erroneous refusal to instruct the jury as required by article 38.23, Texas Code of Criminal Procedure, was harmless under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on rehearing). The majority do not apply Almanzabecause the court of criminal appeals did not do so in Stone v. State, 703 S.W.2d 652 (Tex.Crim.App.1986) (en banc), a case very similar to ours decided after Almanza. I would hold that Almanzamust be applied.

¶12By both its language and its logic, Al-manza applies to an erroneous refusal to give an article 38.23 instruction. Why the court of criminal appeals did not apply Al-manza in StoneI do not know. Importantly, however, Stonedoes not hold Almanzainapplicable to the charging error considered there and which we now have before us. Almanzaspeaks. Stoneis silent. Almanzashould be heard.

¶13I agree with the majority that under Almanza, the error in this case is not harmless. The evidence as to whether Jacobs was intoxicated came from three sources. The arresting officer testified that she saw Jacobs’ pickup weaving down the highway, and that, based upon her observation of Jacobs and Jacobs’ failure of. *707several field sobriety tests, Jacobs was intoxicated. Jacobs testified that he had been drinking beer and eating from about 6:30 p.m. to 11:30 p.m., but denied that he was intoxicated or that he was weaving on the road. The breath test result of 0.11 percent showed Jacobs to be intoxicated.

¶14We have previously found the evidence to raise an issue as to whether the officer had reasonable suspicion to stop Jacobs. The jury might well have concluded she did-not. Had they been properly instructed, they would have been required to disregard all evidence illegally obtained, including the officer’s testimony of everything after the stop and the breath test result. The only remaining evidence of intoxication would have been the officer’s testimony that Jacobs’ was weaving on the road and Jacobs’ testimony that he had been drinking, evidence which well might not have been sufficient for conviction. Therefore, the failure to instruct the jury properly was calculated to and probably did injure Jacobs.