¶1dissenting.
¶2I dissent. The majority affirms the judgment of conviction even though the charge instructed the jury on the opposite of what the law is. The jury charge in this case is not a little off, slightly wrong, ambiguous, or misleading; it is 180 degrees opposite of what it should be. It cannot be harmless error to instruct the jury that the law is the opposite of what it actually is. If we affirm this judgment, we admit that the court’s instructions play no role in how the jury reaches its decision on guilt or innocence.
¶3When the defendant does not object to error in the charge, we will reverse only if the error was so egregious that it denied the defendant a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); Tex.Code CRiM.P. art. 36.19. The factors we consider in making the decision whether to reverse for charge error are: (1) the charge itself; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) the arguments of counsel; and (4) any other information contained in the record. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993).
¶4The issue whether the appellant was wearing his seat belt was a hotly contested issue. That issue was submitted to the jury erroneously — instead of telling the jury to find that the stop was illegal if the appellant was wearing his seat belt, the charge told the jury to find the stop was illegal if the appellant was not wearing his seat belt. The jury verdict rendered in this ease could reflect that the jury believed the appellant and disbelieved the police officers.
¶5The majority states that nothing in the record indicates that the jury misunderstood the law.
¶6I would hold that the erroneous instruction denied the appellant of a fair trial. I would sustain the appellant’s point of error one, and reverse for a new trial.
¶7I would also sustain the appellant’s point of error two — that his trial counsel did not provide him effective legal assistance when he failed to object to the error in the charge. Trial counsel should have noticed the error and should have objected to it.
¶8. The majority states that nothing in the record indicates the judge, the prosecutor, or the defense lawyer misunderstood the applicable law. Maj. op. at 94. The majority also states that all parties clearly understood the law. Maj. op. at 94. That does not bolster, the majority’s case that the jury understood the law. Instead of focusing on what the judge, the lawyers, or the parties "clearly” understood, the majority should focus on the instructions to the jury. The jury received the law from the judge, and we presume that it followed the court's instructions. Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987); Will v. State, 794 S.W.2d 948, 951 (Tex.App.—Houston [1st Dist.] 1990, pet. ref'd). The presumption is rebuttable, but nothing in this record rebuts it. That the judge and the lawyers actually knew what the law is is not relevant to whether the jury was misled by the improper instruction.