Nevertheless, the presence of a correct instruction does not cure the error of giving another inconsistent one. Lowry v. State, 671 S.W.2d 601, 603 (Tex.App. — Dallas 1984), rev'd on other grounds, 692 S.W.2d 86 (Tex.Crim.App. 1985). Each instruction must be judged in the context of the entire charge.
Chacon clearly applied the rule which was followed in Robinson v. State, 739 S.W.2d 795, (Tex.Crim.App. 1987), that an unconstitutional statute is void from its inception and cannot provide a basis for any right or relief. See Lowry v. State, 671 S.W.2d 601 (Tex.App. — Dallas 1984), aff'd in part rev'd in part, 692 S.W.2d 86 (Tex.Crim.App. 1985) (en banc). Under this rule, the unconstitutional statutes can provide no support for invocation of the doctrines of res judicata and collateral estoppel.
Newson v. Starkey, 572 S.W.2d 29 (Tex.Civ.App. — Dallas 1978), held that generally a void law is no law and confers no rights, bestows no power on anyone and justifies no act performed under it citing Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938). See also Lowry v. State, 671 S.W.2d 601 (Tex.App. — Dallas 1984), affirmed in part, reversed in part 692 S.W.2d 86 (an unconstitutional statute is void from its inception); Fite v. King, 718 S.W.2d 345 (Tex.App. — Dallas 1986) ref. n.r.e. (unconstitutional act confers no right, imposes no duty, and affords no protection). It has also been said that an unconstitutional statute in the criminal area is to be considered no statute at all.
The appellate court reversed the conviction and remanded the case back to the trial court for trial under the former penal code provisions. Lowry v. State, 671 S.W.2d 601 (Tex.App. — Dallas 1984). We granted the State's petition for discretionary review to determine whether the court of appeals erred by holding that V.T.C.A. Penal Code, § 25.05 was unconstitutional in its entirety.
Based upon Alcoser and Torres, we conclude that on this record the conflicting instructions in the jury charge as to self-defense are egregious as they "vitally affect a defensive theory." See Alcoser, 663 S.W.3d at 169; Torres, 2014 WL 4639401, at *5; see also Lowry v. State, 671 S.W.2d 601, 603 (Tex. App.- Dallas 1984) (concluding that error in giving conflicting instructions was not harmless because "[b]oth the State and appellant cannot carry the burden of proving a single issue" and "[t]he presence of a correct instruction does not cure the error of giving another inconsistent one"), rev'd in part on other grounds, 692 S.W.2d 86 (Tex. Crim. App. 1985).
Given that the jury could not find both knowing non-residence and reasonable belief of residence, including both standards in the charge with different burdens would, at the very least, have confused the jury. SeeLowry v. State, 671 S.W.2d 601, 603 (Tex.App.–Dallas 1984) (“[W]hen the affirmative defense requires a negation of an element of the crime, there seems to be an insoluble conflict for the jury due to the existence of simultaneous burdens of proof. In other words, the jury may become confused by the different burdens of proof and inadvertently fail to accord due consideration to evidential matters relating to the affirmative defense.”) (citing Comment, Affirmative Defenses Under the New York New Penal Law, 19 Syracuse L.Rev. 44, 47 (1967)), aff'd in relevant part,692 S.W.2d 86 (Tex.Crim.App.1985).
Given that the jury could not find both knowing non-residence and reasonable belief of residence, including both standards in the charge with different burdens would, at the very least, have confused the jury. SeeLowry v. State, 671 S.W.2d 601, 603 (Tex.App.–Dallas 1984) (“[W]hen the affirmative defense requires a negation of an element of the crime, there seems to be an insoluble conflict for the jury due to the existence of simultaneous burdens of proof. In other words, the jury may become confused by the different burdens of proof and inadvertently fail to accord due consideration to evidential matters relating to the affirmative defense.”) (citing Comment, Affirmative Defenses Under the New York New Penal Law, 19 Syracuse L.Rev. 44, 47 (1967)), aff'd in relevant part, 692 S.W.2d 86 (Tex.Crim.App.1985).
Given that the jury could not find both knowing non-residence and reasonable belief of residence, including both standards in the charge with different burdens would, at the very least, have confused the jury. See Lowry v. State, 671 S.W.2d 601, 603 (Tex. App.—Dallas 1984) ("[W]hen the affirmative defense requires a negation of an element of the crime, there seems to be an insoluble conflict for the jury due to the existence of simultaneous burdens of proof. In other words, the jury may become confused by the different burdens of proof and inadvertently fail to accord due consideration to evidential matters relating to the affirmative defense.") (citing Comment, Affirmative Defenses Under the New York New Penal Law, 19 Syracuse L. Rev. 44, 47 (1967)), aff'd in relevant part, 692 S.W.2d 86 (Tex. Crim. App. 1985).
Factual insufficiency of the evidence is clear in this case. The due process clause protects the Appellant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which she has been charged, Lowry v. State, 671 S.W.2d 601. Section 6.03 of the Penal Code states that a person acts intentionally or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause a result.
U.S. Const. amend. V and XIV; Alaska Const. art. 1, §§ 7 and 9. Taylor relies on Lowry v. State, 671 S.W.2d 601 (Tex.App. 1984). Given our interpretation of AS 11.51.120, however, Lowry is clearly distinguishable.