From Casetext: Smarter Legal Research

Rodriguez v. State

Court of Criminal Appeals of Texas, En Banc
Oct 19, 1988
758 S.W.2d 787 (Tex. Crim. App. 1988)

Summary

holding that failure to object to an unconstitutional jury charge does not waive error

Summary of this case from Johnson v. State

Opinion

No. 513-88.

October 19, 1988.

Appeal from 263rd Judicial District Court, Harris County, H.G. Andrews, Jr., J.

Berta Alicia Mejia, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Roe Morris and Loraine Parker, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


Appellant was convicted by a jury of aggravated sexual assault. The jury also assessed punishment at seventeen (17) years confinement. The fourteenth Court of Appeals affirmed in a Rodriguez v. State, 750 S.W.2d 267 (Tex.App. 1988).

In affirming the trial court's judgment, the Court of Appeals found that there was no objection on the constitutional issues raised by appellant on appeal. The Court of Appeals then applied a harm analysis consistent with that set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984), and found that appellant had not suffered egregious harm which deprived him of a fair and impartial trial.

After the Court of Appeals decided the instant appeal, this Court delivered its opinion on the Court's own motion for rehearing in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1988). On rehearing, this Court held that Rule 81(b)(2), Tex.R.App.Pro., and not the tests set out in Almanza, supra, govern in deciding whether this kind of charge error was harmless to the defendant. This Court further held that failure to object to the unconstitutional jury charge did not waive error. Since an objection was not required, it is of no consequence in the instant case that appellant's point of error on appeal was not raised at trial.

Accordingly, this cause is remanded to the Court of Appeals so that it may analyze the error pursuant to Rule 81(b)(2), supra. See also Haynie v. State 751 S.W.2d 878 (Tex.Cr.App. 1988).

The judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.

ONION, P.J., dissents and also dissents to the remand.

TEAGUE, J., dissents to the remand.


Summaries of

Rodriguez v. State

Court of Criminal Appeals of Texas, En Banc
Oct 19, 1988
758 S.W.2d 787 (Tex. Crim. App. 1988)

holding that failure to object to an unconstitutional jury charge does not waive error

Summary of this case from Johnson v. State
Case details for

Rodriguez v. State

Case Details

Full title:Carlos RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Oct 19, 1988

Citations

758 S.W.2d 787 (Tex. Crim. App. 1988)

Citing Cases

Verhoef v. State

If error was properly preserved by objection, reversal will be necessary if the error is not harmless.…

McKenney v. State

, overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Conversely, if…