Huizar v. State

¶1dissenting.

¶2Until today, no court in this State had held that a trial court must instruct a jury on the burden of proof for extraneous offense evidence admitted during the punishment phase of a criminal trial regardless of whether such an instruction is requested; nor had any court held that the failure to give such an instruction constitutes automatic reversible error. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (holding trial court erred in refusing appellant’s request to instruct jury on burden of proof for extraneous offense evidence admitted during punishment phase and remanding to court of appeals to conduct harm analysis pursuant to Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op.on reh’g));1Tow v. State, 953 S.W.2d 546, 548 (Tex.App.—Fort Worth 1997, no pet. h.); Yates v. State, 917 S.W.2d 915, 922-23 (Tex.App.—Corpus Christi 1996, pet. ref'd) (assuming, without deciding, that failure to give instruction was error and applying Almanza“egregious harm” standard); Escovedo v. State, 902 S.W.2d 109, 113-114 (Tex.App.—Houston [1st Dist.] 1995, pet. refd) (holding trial court erred in refusing defendant’s requested instruction and applying Almanza“actual harm” standard); Smith v. State, 899 S.W.2d 31, 35 (Tex. App.—Austin 1995, pet. ref'd)(per cu-riam)(assuming, without deciding, that failure to give instruction was error and applying Almanza“egregious harm” standard); cf. Cormier v. State, 955 S.W.2d 161, 163-64 (Tex.App.—Austin 1997, no pet. h.)(applying Almanza“egregious harm” standard to fail*711ure to define “reasonable doubt” in instruction on burden of proof for extraneous offense evidence admitted during punishment phase); Splawn v. State, 949 S.W.2d 867, 874 (Tex.App.—Dallas 1997, no pet.)(although “mindful of ... Reyes,” court applies Alman-za “egregious harm” standard to failure to define “reasonable doubt” in punishment phase burden of proof instruction in reliance upon Mitchelland Matchett v. State, 941 S.W.2d 922, 928 (Tex.Crim.App. 1996), cert.denied, — U.S. -, 117 S.Ct. 2487, 138 L.Ed.2d 994 (1997), in which the court “held that although certain types of error, by their nature, resist meaningfiil harm analysis and thus are categorically precluded from a harm analysis review, courts should make a case by case determination of whether in fact a meaningful harm analysis is possible for any particular case”).

¶3In fact, the judges on the Texas Court of Criminal Appeals split as to whether such an instruction should be given even if it is requested. See Mitchell, 931 S.W.2d at 955-57 (Meyers, J., joined by Clinton and Maloney, JJ., concurring) (if some evidence of extraneous offense admitted, whether burden met is issue of fact for jury); 955 (Clinton, J., concurring) (same); 957 (McCormick, P.J., joined by Mansfield and Keller, JJ., dissenting) (whether burden met is question of preliminary admissibility and therefore issue for trial court to resolve). As a result, Mitchellis at best a plurality opinion and, therefore, of limited precedential value. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App. 1992).

¶4The other decision relied upon so heavily by the majority — Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App.1996) — is also a plurality opinion, and one that achieved plurality status only because Judge Meyers believed the result to be an unavoidable consequence of Geesa v. State, 820 S.W.2d 154, 155 (Tex. Crim.App.1991). Reyes, 938 S.W.2d at 721-22 (Meyers, J., concurring). Judge Meyers also recognized, however, that “[s]uch a result may ... compel a majority of this Court to reexamine Geesain the future,” and, he noted, (“were that to happen, [he] might very well join them in that endeavor.”); see also id. at 722 (Mansfield, J., dissenting), 724 (Keller, J., joined by McCormick, P.J., and White, J., dissenting).

¶5Against this backdrop, and in light of the considerations expressed in a multitude of opinions rejecting the doctrine of presumed harm, I would not reach out to consider whether the trial court must give this instruction — an issue that has not been briefed or argued — nor will I join the majority in being the first in Texas to extend Geesaand hold this unassigned “error” is not subject to a harm analysis under either Rule 44.2, Tex. R.App. P., or Almanza. To do so puts this court in conflict with the plurality opinion in Mitchell, every other Texas court of appeals considering the issue, and what I believe to be not just the legally correct path but the wise and prudent one as well, as suggested by Matchett ⅛ retreat and the concurring and dissenting opinions in Reyes.

¶6I would presume error, as the Austin and Corpus Christi Courts of Appeals did in Smithand Yates, and apply Almanza’s “egregious harm” standard as the Court of Criminal Appeals instructed the court of appeals to do in Mitchell. Ultimately, because I do not believe this record demonstrates either that Huizar suffered “egregious harm” because of the absence of a Mitchellinstruction or that he received ineffective assistance of counsel, I would affirm the trial court’s judgment

¶7Dissenting opinion joined by GREEN and ANGELINI, JJ.