              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                           NO. PD-1522-11



                            JAMES HENRY GELINAS, Appellant

                                                    v.

                                     THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE EIGHTH COURT OF APPEALS
                               EL PASO COUNTY

                 K ELLER, P.J., filed a concurring opinion.


        I join the Court’s opinion. To its cogent refutation of the reasoning in Hutch,1 I would add

the point raised in my dissent in that case: the error in the application part of the jury instructions was

to the defendant’s benefit. The application portion of the instructions2 in Hutch essentially told the

jury (incorrectly and to Hutch’s benefit) to disregard legally obtained evidence. It did not tell the




        1
            Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996).
        2
            See TEX . CODE CRIM . PROC. art. 38.23(a) (second paragraph).
                                                                                      GELINAS — 2

jury what to do if the evidence was illegally obtained.3 But the abstract portion of the instructions

did. It told the jury that illegally obtained evidence was inadmissible, explained to the jury that a

police officer could stop someone only if criminal activity was rationally suspected, and set forth the

failure to wear seatbelts as the suspected crime that would be the basis of the stop.4 Considered as

a whole, the instructions essentially told the jury that it had to disregard the evidence if it was

obtained illegally or if it was obtained legally. “[T]he only way the jury could have convicted was

by disregarding the erroneous [application] instruction and acting in accord with the rest of the jury

charge and the jury arguments.”5

        Similarly, the application portion of the instructions in the present case told the jury

(incorrectly and to appellant’s benefit) to disregard the evidence if the jury determined that it was

obtained legally. The application portion of the instructions did not tell the jury what to do if it was

illegally obtained. But the abstract portion of the instructions told the jury that illegally obtained

evidence was inadmissible, explained to the jury that a police officer could stop someone only if

criminal activity was rationally suspected, and set forth a violation of the Transportation Code as the

suspected crime that would be the basis of the stop. As in Hutch, the application portion of the

instructions essentially told the jury that the evidence could not be considered if it was legally

obtained, and the abstract portion of the instructions told the jury that the evidence could not be

considered if it was illegally obtained. The instructions never told the jury that it should consider

illegally obtained evidence. The only rational view of the situation is that the jury, in convicting


        3
            Hutch, 922 S.W.2d at 174-75 (Keller, J., dissenting).
       4
            See id. at 169 (Court’s op.).
       5
            See id. at 174-75 (Keller, J., dissenting).
                                                                                GELINAS — 3

appellant, disregarded the erroneous application portion of the instructions.



Filed: May 15, 2013
Publish
