State v. Toney

¶1concurring.

¶2I agree with the majority opinion that the “egregious harm” standard applies to the error before us. However, instead of relying upon a plurality opinion to harmonize Reyes v. State, 938 S.W.2d 718 (Tex.CiTm.App.1996) with other caselaw, I would take this opportunity to overrule Reyes.

¶3Precedent should not be overruled lightly: often it is better to be consistent than light. Awadelkariem v. State, 974 S.W.2d 721, 725 (Tex.Crim.App.1998). But there are times when precedent must be overruled because the precedent creates inconsistency, conti’ary to the interests embodied by the rule of stare decisis, and/or because the interests of justice outweigh the benefits of consistency. Id. at 724-25; see also Malik v. State, 953 S.W.2d 234, 236-240 (Tex.Crim.App.1997). And, the interests underlying stare decisis are less weighty for judicially-made rales than for interpretations of statutory enactments. Awadelkariem, at 726. Some factors militating in favor of overruling precedent are: (1) when the original decision was flawed from the outset, due to flawed reasoning, lack of authority, or misplaced reliance upon cited authorities, (2) when the precedent flowing from the decision conflicts with other, newer precedent, (3) when the justifications proffered for the rale established by the decision have been undercut with the passage of time, (4) when the rale produces inconsistency and confusion in the law, (5) when the rale consistently creates unjust results or places unnecessary constraints or *646burdens upon the system, and (6) when the rule creates differences between criminal and civil practice when no principled reason exists for the disparity. Awadelkariem, 724-25 and 726; see also Malik, 953 S.W.2d at 236-240. I find that the first, second, fourth, and fifth factors are present in the case at bar and are weighty enough to compel overruling Reyes.

¶41. Reyeswas a flawed decision.

¶5In Reyes, this Court held the instruction mandated by Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991) to be an “absolute systemic requirement that cannot be waived or forfeited.” 938 S.W.2d at 721. The Court concluded that “[s]uch requirements are not subject to a harm analysis.” Id.In support of that conclusion the Court cited Sodipo v. State, 815 S.W.2d 551 (Tex.Crim.App.1990), Powell v. State, 897 S.W.2d 307 (Tex.Crim. App.1994), and Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.l995)(plurality opinion), and the Court pointed out that it did not engage in a harm analysis in Gees a. Reyes, 938 S.W.2d at 721. Reyeswas a bare 5-4 majority opinion with only half-hearted support from the fifth vote — Judge Meyers. Although he characterized the holding as “troubling,” he felt compelled to join the majority opinion. 938 S.W.2d at 722 (Meyers, J. concurring). Judge Mansfield dissented from the Court’s conclusion that the failure to include a Geesainstruction is per se reversible error. Id. at 722 (Mansfield, J. dissenting). This writer also dissented, complaining that the majority had erroneously equated non-waivable error with automatic reversible error and that the two were not synonymous. Id. at 724.

¶6I remain firmly convinced that Reyeserroneously equated two different concepts: preservation of error and harm. That a particular kind of error may be non-waivable does not mean that the error is necessarily harmful. The Court gave no reason in Reyesfor equating the two, except for its citation to Sodipo, Powell, and Stineand its remark that no harm analysis was performed in Gee-sa. Hence, an examination of those cases is in order.

¶7In Sodipo, the State moved to amend the indictment on the date of trial before trial began. 815 S.W.2d at 555 (opinion on rehearing). Defense counsel objected to the amendment and requested ten days to pre-paré. Id.On original submission, we held that the ten day preparation requirement found in Article 28.10(a)1 was not subject to a harm analysis “because the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error.” Id. at 554. We cautioned, however, that “[w]e do not decide today whether all ‘mandatory’ statutes are immune to a harmless error analysis.” Id.2On rehearing, we held that our analysis of the ten day preparation requirement was “improvident” and proceeded instead to analyze whether there was a violation of Article 28.10(b). Id. at 555. We found that amendments on the date of trial violated subsection (b), and we held that the error was not subject to a harm analysis. Id. at 556. We found that a harm analysis should not be conducted because conducting such an analysis would prevent giving effect to the full meaning and intent of an unambiguous statute. Id.

¶8But Sodipocannot support Reyes’ holding that absolute, systemic requirements are immune from harm analyses because Sodipodid not involve an absolute, systemic requirement. The statute at issue in Sodipoestablished forfeitable rights: a defendant was entitled to ten days preparation only upon request and an indictment could not be amended on the date of trial in the face of a defendant’s objection. 815 S.W.2d at 553 and 556. Neither the opinion on original submis*647sion nor the opinion on rehearing contains any language that exempts an error from a harm analysis on the ground that the error is an “absolute, systemic requirement.”

¶9Reyesdid not utilize either of the rationales actually contained in Sodipo. Any attempt to do so, however, would have been misguided. The “concrete data” approach taken in the opinion on original submission does not automatically render Geesaerror immune from a harm analysis. Even where a Geesainstruction is wholly omitted, the record in a case may contain “concrete data” from which a meaningful harm analysis could be conducted. Geesaoffered defendants a quid pro quo: instead of requiring the reasonable hypothesis charge for circumstantial evidence eases, this Court formulated a definition of reasonable doubt to be uniformly administered. 820 S.W.2d at 161 and 165. Hence, defendants whose convictions are supported by direct evidence would not be harmed by a failure to obtain a Geesainstruction. Reyes, 938 S.W.2d at 724 (Keller, J. dissenting). Moreover, other developments during trial may provide concrete data from which to determine whether the absence of a Geesainstruction was harmful. For instance, in Reyes, the prosecutor, during argument to the jury, defined reasonable doubt in a manner closely tracking the definition mandated by Geesa. Reyes, 938 S.W.2d at 724 (Mansfield, J. dissenting). The record contained concrete evidence that the defendant was not harmed because the jury was in fact given correct information concerning the definition of reasonable doubt.

¶10The “clear language of a mandatory statute” reasoning found in Sodipo’s opinion on rehearing also does not justify holding a harm analysis to be inapplicable to Geesaerrors. The Geesainstruction is not a statute at all. There is no Legislative intent that we must attempt to effectuate. Nor is there any constitutional imperative requiring the instruction. See Geesa, 820 S.W.2d at 163 (The rules are not of constitutional dimension per se; rather, the rules serve to implement the constitutional requirement that a criminal conviction cannot stand “except upon proof beyond a reasonable doubt”); Reyes, 938 S.W.2d at 723 n. 1 (Mansfield, J. dissenting)(eiting Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239,127 L.Ed.2d 583 (1994)). The Geesadefinition is simply a court-made rule, and there is no indication in the language of Sodipothat the opinion was ever meant to apply to such rules.

¶11Further, even if one engaged in the strained analogy that a mandatory court-made rule should be treated in the same fashion as a mandatory statute, the “clear, mandatory statute” rationale in Sodipowas shaky ground for immunizing a court-made instruction from a harm analysis. Before Reyeswas decided, we had explained that the applicability of a harm analysis was not contingent upon whether the statute was mandatory, but whether the record will contain concrete data to enable conducting a harm analysis. Warmowski 853 S.W.2d at 577. In other words, we indicated that Sodi-po ’s opinion on original submission, not the opinion on rehearing, contained the correct test for determining when a harm analysis should be conducted. We had further explained that determining whether a harm analysis should apply to a violation of a mandatory statute should be a ease-by-case inquiry. Adanandus v. State, 866 S.W.2d 210, 219 (Tex.Crim.App.1993). By categorically holding that Geesaerror is not subject to a harm analysis, Reyesconflicted with that case-by-case approach.

¶12In Powell, we held that a party could not waive the “deliberateness” special issue, required under the death penalty scheme applicable to the defendant. 897 S.W.2d at 315-319. However, Powelldid not hold that all systemic requirements were immune from a harm analysis. At most, Powellheld that the particular systemic requirement at issue was immune because “the verdict [was] incomplete” and an affirmative answer to the issue was required to authorize the death penalty. Id. at 317-318 (plurality opinion); id at 318 (Clinton, J. concurring). Further, another interpretation of Powell’s holding is equally viable: because the verdict was incomplete, the error was necessarily harmful. Rather than being immune from a harm analysis, the error in Powellsimply failed the harm analysis. See id. at 318 (“The sentence of death is likewise tainted ” (emphasis added)). Of *648course, given the nature of the specific kind of error in Powell, that error will probably always be harmful. That is different, however, from saying that the error is immune from harm analysis.

¶13In Stine, a portion of the trial proceedings had occurred outside the county seat. 908 S.W.2d at 430. This Court held that no harm analysis need be done because the Texas constitutional provision at issue was “clear and unambiguous,” “mandatory,” and “non-waivable.” Id. at 431. In support of this proposition, the Court cited Sodipo. Stine, 908 S.W.2d at 431. But, as discussed above, that a provision is clear and mandatory did not necessarily render violations immune from a harm analysis under Sodipo. And, as also discussed above, Sodipodid not hold “non-waivable” errors immune from a review for harm. Stine’s reliance upon Sodipowas misplaced.

¶14Finally, Reyes’s reliance upon Geesa’s reversal and remand is misplaced. Geesawas apparently a circumstantial evidence case, and the Court of Appeals in that case found the evidence to be insufficient under the “reasonable hypothesis” construct. Geesa, 820 S.W.2d at 162-163. Hence, the error was harmful because the ease implicated the quid pro quo that the Geesaopinion set up. The defendant would have prevailed under the old sufficiency standard, so the Court was required to give him the benefit of the new jury instruction. As the above discussion shows, none of the authority cited by Reyessupports its holding.

¶152. Reyesconflicts with more recent precedent (Cain).

¶16In Cain v. State, 947 S.W.2d 262 (Tex. Crim.App.1997), this Court held:

Except for certain federal constitutional errors labeled by the Supreme Court as “structural,” no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.

¶17Id. at 264 (footnote omitted). Cain’s plain language shows that the Court intended to make a broad, sweeping change in harm analysis jurisprudence by including within the reach of a harm analysis all errors which we had the power to so include. The phrase “Except for certain federal constitutional errors labeled by the Supreme Court as structural” is followed by a footnote, which notes that the Supreme Court has mandated that certain types of federal constitutional errors are immune from a harm analysis. See 947 S.W.2d at 264 n. 5. The phrase and footnote is a recognition that we are bound by the pronouncements of the Supreme Court concerning federal constitutional errors. But the opinion unambiguously holds that, except where the Supreme Court has held otherwise, all errors are subject to a harm analysis. See also Atkins v. State, 951 S.W.2d 787, 797 (Tex.Crim.App.l997)(eiting Cain). Given Cain’s language, Reyeswas effectively overruled by Cain. Geesa error is not federal constitutional error, much less error labeled by the Supreme Court as “structural.” So, under the clear language of Cain, Geesa error is subject to a harm analysis, period.

¶18The majority, however, contends that Cainonly indirectly limits Reyesbecause Cainfocused upon former Tex.R.App. P. 81(b)(2) instead of the harm analysis utilized for jury charge error under Article 36.19 and Alman-za v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). A harm analysis for jury charge error does differ from the harm analyses for other errors in two respects: (1) the former flows from statute while the latter are court-made rules, and (2) the defendant has the burden to show harm while the harm analyses for other errors require a showing of harmlessness. Compare Almanza with Tex.RApp. P. 44.2(a)(formerly Rule 81(b)(2)) and 44.2(b). These differences, however, are not material to the issue at hand. Jury charge error that rises to the level of a state or federal constitutional violation is analyzed under Rule 44.2(a)(former Rule 81(b)(2)). Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). The majority cannot deny that Cain, given its sweeping language, at least applies to all errors subject to Rule 44.2(a). It would be highly anomalous to hold Cainapplicable to jury charge error that rises to the level of a constitutional violation but hold the case inapplicable to errors that do not rise to that level.

¶19*649Moreover, Cain’s holding and reasoning undermine the foundations upon which Reyeswas built. As discussed above, Reyesrelied upon the notion that absolute, systemic errors were automatically immune from a harm analysis. But, in announcing our holding in Cain, subjecting virtually all errors to a harm analysis, we explicitly included at least one example of an absolute, systemic requirement: jurisdiction. And the statute in question in Cain, Article 26.13, is also an absolute, systemic requirement. See Matchett v. State, 941 S.W.2d 922, 928 n. 6 (Tex.Crim.App.l996)(plurality opinion); see also Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996).

¶20Moreover, Caindemolishes the authority upon which Reyesrelied. In announcing our holding in Cainwe stated: “To the extent that Marin, Morales, Whitten, and any other decision conflicts with the present opinion, they are overruled.”3Cain, 947 S.W.2d at 264. Marin expressly relied upon Sodipoin holding that certain errors are not subject to harmless error review. Marin, 851 S.W.2d at 281. In overruling Marin, then, we necessarily overruled Sodipo, and by implication, Stineas well. Moreover, the reasoning in Cainis clearly at odds with the reasoning in Sodipo. While Sodipoheld that an error is immune from a harmless error analysis if concrete data from which to conduct such an analysis is absent, Cainheld that a harmless error test must nevertheless be conducted, and the absence of data is simply taken into account in determining whether the harmless error test is passed or failed. Cain, 947 S.W.2d at 264 (“where ... the data is insufficient to conduct a meaningful harmless error analysis, then the error will not be proven harmless ... under Rule 81(b)(2)” (ellipses inserted)).

¶213. Retaining Reyeswould promote inconsistency in the law.

¶22Having subjected all errors to a harm analysis in Cain, except where the Supreme Court has dictated otherwise, this Court will create confusion by upholding Reyes. If the total failure to give a Geesainstruction is not subject to a harm analysis, then Cain’s language becomes inaccurate, and an exception is made to the sweeping nature of Cain’s holding. Courts of appeals will be left wondering whether there might be other exceptions to the literal language in Cain. Those courts will be left wondering whether a given error falls under the rubric of Cain’s sweeping language or constitutes an exception, like Reyes. And finding one exception here may encourage this Court to find other exceptions later. Language in the majority opinion reinforces this confusion by relying upon the idea that an error is immune from a harm review if it “defies meaningful analysis”— even though that very reasoning was rejected in Cain.

¶234. Immunizing errors from a harm analysis will produce unjust results.

¶24Permitting reversal without regard to harm where a Geesainstruction is omitted is likely to lead to unjust results. Reyesitself is a perfect illustration. Neither party requested a Geesainstruction or objected to its absence, but the proper definition of reasonable doubt was presented during argument to the jury. The case contained direct evidence, which would have made the evidence sufficient to support the conviction even before GeesaThe quid pro quo that motivated our imposing the instruction in Geesawas not present, the jury was at least told the proper definition, and there was no reason to believe the jury failed to utilize the proper standard of proof that the term “reasonable doubt” embodies. The State’s conviction should not have been overturned in that case.

¶25But, the unjust results are not limited to the Geesacontext, but will likely occur in any context which immunizes error from a review for harm. The unjustness of immunizing errors from a harm analysis was also illustrated by the scenario found in Cain: even though a trial judge is absolutely required to inform a person of the immigration consequences of a plea, a person who is in fact a *650United States citizen suffers no adverse consequences if he is not so informed. See Cain, 947 S.W.2d at 264. The idea that conducting a harm analysis is a waste of judicial resources was “exposed ... as plainly wrong.” Matchett, 941 S.W.2d at 928 (ellipsis inserted).

¶26■ Stinepresents another illustration of the unjustness of precluding a harm analysis. In that case, the complaining witness was unable to appear in court because he had been hospitalized as a result of the charged assault. 908 S.W.2d at 430, 908 S.W.2d at 434 (McCormick, P.J. dissenting). With the consent of both parties, the trial court reconvened court at the hospital to take the witness’ testimony, apparently in hopes that, in case the victim died, the trial would be over before the defendant could be charged with murder. Id.All other proceedings in the trial took place at the courthouse. Id. at 430-431. This Court held that error occurred because the hospital where the testimony was taken was located outside the county seat. Id. at 431. The State argued that the error was harmless, but this Court declined to conduct a harm analysis. Id.Because a mere portion of a trial was conducted in an unauthorized location, we held the entire trial void. We could have simply held that portion to be void and then considered whether the unauthorized testimony contributed to the conviction or punishment. But finding a systemic error, the Stinecourt blindly reversed without even considering whether that error affected the outcome of the proceedings, most of which were conducted in the proper forum.

¶27For the reasons articulated above, Reyesshould not be upheld in any form. We should recognize that Caineffectively overruled Reyes, and we should erase all doubt about Reyes’ status by expressly overruling it now. Because the majority holds otherwise, I can only concur in the result.

¶28McCORMICK, P.J., and HOLLAND, J., join.