Opinion
NO. PD-0590-17
10-18-2017
KARRA TRICHELE ALLEN, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS BURNET COUNTY
YEARY, J., filed a dissenting opinion. DISSENTING OPINION
At the conclusion of Appellant's murder trial, the trial court submitted an instruction regarding self-defense. Appellant did not ask for the related jury instruction on the presumption of reasonableness that is embodied in Section 9.32(b) of the Texas Penal Code, nor did the trial court submit such an instruction sua sponte. TEX. PENAL CODE § 9.32(b). On appeal, Appellant argued that the trial court erred to leave out the instruction of the presumption of reasonableness, and that she was egregiously harmed by its absence.
In an unpublished opinion, the Austin Court of Appeals affirmed Appellant's conviction. Allen v. State, No. 03-15-00420-CR, 2017 WL 1832456 (Tex. App.—Austin May 2, 2017) (not designated for publication). It held that the presumption-of-reasonableness instruction was essentially a defensive instruction, and that the failure to give such a defensive instruction in the absence of a request from the defendant is not error, and is therefore not subject to analysis for egregious harm under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (the omission of an unrequested defensive jury instruction is not "error" for Almanza purposes). This approach fails to take into account that, by operation of Section 2.05(b) of the Penal Code, whenever there is sufficient evidence to invoke a defensive presumption, a jury instruction with respect to that presumption is mandated, unless the trial court determines that "the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact[.]" We should consider whether, absent a finding that the presumption is "clearly precluded" by the evidence, the presumption essentially becomes "law of the case" for purposes of Articles 36.14 and 36.19 of the Texas Code of Criminal Procedure, from which the holding in Almanza derived. See TEX. PENAL CODE § 2.05(b) ("When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences: . . . if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury . . ."); TEX. CODE CRIM. PROC. arts. 36.14 & 36.19 (the trial court must submit "a written charge distinctly setting forth the law applicable to the case[,]" and any error in the course of doing so may be reversible if "it appears from the record that the defendant has not had a fair and impartial trial").
Here, there was at least some evidence from which a rational jury could have concluded that Appellant had reason to believe her husband was attempting to commit the offense of murder against her when she killed him. TEX. PENAL CODE § 9.32(b)(1)(c). That is enough to invoke the statutory presumption that deadly force was immediately necessary, and once it was invoked, absent a trial court finding that "the evidence as a whole clearly precludes" it, a substantial question exists whether Section 2.05(b)(1) required the trial court to submit "the issue of the existence of the presumed fact" for the jury's consideration. Moreover, we have held that, once the trial court chooses to submit a defensive issue to the jury—even sua sponte—then any error it may commit in that submission is subject to review under Almanza, including an analysis for egregious harm in the event that the defendant fails to call the error to the trial court's attention. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998).We should grant Appellant's petition for discretionary review to decide whether the court of appeals should have entertained Appellant's egregious harm argument on the merits.
It may well prove largely academic that the court of appeals declined to apply Almanza, since on the facts of this case the error may not have egregiously harmed Appellant in any event. I venture no opinion on that question. But this case presents a good opportunity to resolve an important legal issue, and any actual assessment of harm is best left to the court of appeals in the first instance. I would grant Appellant's petition for discretionary review for the sake of the jurisprudence. Because the Court will not, I respectfully dissent. FILED: October 18, 2017
DO NOT PUBLISH