Opinion
No. 10-03-00007-CR
Opinion Delivered and Filed September 8, 2004. DO NOT PUBLISH.
Appeal from the 82nd District Court, Falls County, Texas, Trial Court # 7706. Affirmed.
Stan Schwieger, Attorney at Law, Waco, Tx, for appellant/relator. Kathryn J. Gilliam, Falls County District Attorney, Marlin, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Appellant shot Calvin Penny. A jury rejected his self-defense claim, found him guilty, and assessed seven years in prison, to which the court sentenced him. The sole claim on appeal is errors in the jury charge, i.e., an incorrect definition of "deadly force" and the failure to define "serious bodily injury." Finding errors in the charge but no egregious harm, we will affirm the judgment.
REVIEW OF CHARGE ERROR
When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1985) (on rehearing). Appellant concedes that he did not object to the charge at trial. Thus, even if we find error, we should not reverse in the absence of "egregious harm" to Appellant. Almanza, 686 S.W.2d at 171. In evaluating whether charge error caused some harm or egregious harm to the accused, the appellate court considers (1) the entire jury charge, (2) the evidence produced at trial, the contested issues and the weight of the probative evidence, (3) the attorneys' arguments, and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (quoting Almanza, 686 S.W.2d at 171).INCORRECT DEFINITION
The charge instructed the jury that the term "deadly force" means "a belief that would be held by an ordinary and prudent person in the same circumstances as defendant." The State concedes that the definition is not correct. We agree and proceed to a determination of whether Appellant suffered "egregious harm" because of this incorrect definition. As the State points out, other provisions in the charge provided proper instructions on the law of self-defense, including correct definitions of the term "deadly force." The testimony at trial by the State's witnesses that Penny was unarmed and standing still stood in stark contrast to Appellant's testimony that Penny had a gun and was coming at him fast. Counsel argued from the differing standpoints presented by the conflict in testimony. The jury's decision turned on credibility and in our view was not influenced by this mistake in the charge. We do not find egregious harm.FAILURE TO DEFINE
Appellant's second complaint is that the court failed to define "serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2004). We note that the use of the term occurred only in the defensive portion of the charge, i.e., in the instructions on the law of self-defense. Almanza does not govern unobjected-to omissions from the charge on defensive issues. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App. 1998) (no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues). However, the Court of Criminal Appeals has said that when the trial court undertakes to charge on self-defense, any flaw in the charge amounts to an "error in the charge," even under Posey. See Barrera v. State, 982 S.W.2d 415, 418 (Tex.Crim.App. 1998). Thus, we will review this complaint. The trial court should include statutory definitions of terms used in the charge. See Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App. 1986) (stating "a statutorily defined word or phrase must be included in the charge as part of the `law applicable to the case'"); see also Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000). Here again, the State concedes that the term was not defined in the charge, but because Appellant did not object, the question is whether he suffered egregious harm. Applying Ovalle and again noting that the term was used in connection with the defensive issue, we believe that the jury was not misled by this omission from the charge. We do not find egregious harm.CONCLUSION
Appellant's complaints about the jury charge are overruled. We affirm the judgment.DISSENTING OPINION
We have issued an opinion in this case before. Parsons v. State, No. 10-03-00007-CR, 2004 Tex. App. LEXIS 5672, (Tex. App.-Waco June 23, 2004), withdrawn. Parsons filed a petition for discretionary review. Without complying with Rule 50 after a petition for discretionary review had been filed, the Court attempted to set aside its opinion. See TEX. R. APP. P. 50. I dissented. Parsons v. State, No. 10-03-00007-CR, 2004 Tex. App. LEXIS 7527 (Tex. App.-Waco, Aug. 18, 2004) (Gray, C.J., dissenting). Unless dismissed under Rule 50, a petition for discretionary review must be sent to the Court of Criminal Appeals. Tex.R.App.P. 68.7(b). This petition for discretionary review has not been forwarded to the Court of Criminal Appeals as required. And our failure to allow the Clerk to comply with Rule 68.7(b) cannot properly operate to stop the effect of the petition for discretionary review. Because we did not comply with Rule 50 by timely issuing a new opinion once the petition for discretionary review was filed, we have lost jurisdiction of this appeal. Because we have no jurisdiction, I cannot join the opinion put forth by the Court. Even if we had jurisdiction, I could not join the majority opinion because it does not accurately state the law. Indeed, in our original opinion, we held the second issue was not preserved for our review. Parsons v. State, No. 10-03-00007-CR, 2004 Tex. App. LEXIS 5672, (Tex. App.-Waco June 23, 2004), withdrawn, (citing Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998)). The Court now changes its direction because in Barrera if an unrequested defensive charge is gratuitously given when the trial court had no duty to give it, the charge must be correct. Barrera v. State, 982 S.W.2d 415, 416 (Tex.Crim.App. 1998). But the Court fails to answer two questions: was an instruction gratuitously given when the trial court had no duty to do so, and if so, was it wrong to not give a definition of "serious bodily injury?" The Court only says the trial court should include statutory definitions of terms used in the charge. Without a determination that the omission of a definition of a term like "serious bodily injury" from an unrequested affirmative defense is error, it must be preserved. See Posey v. State, 966 S.W.2d at 61. The Court, while arguing to the contrary, cites no authoritative support. For the reasons stated herein, I respectfully dissent.