            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 EASLER, J., announced the judgment of the Court and delivered an opinion, in
which K ELLER, P.J., H ERVEY, and A LCALA, JJ., joined. K ELLER, P.J., filed a
concurring opinion. C OCHRAN, J., filed a concurring opinion. M EYERS, J., filed a
dissenting opinion. P RICE, J., filed a dissenting opinion. J OHNSON, J., filed a dissenting
opinion. W OMACK, J., concurred.

                                      OPINION

       The State asks us to overrule Hutch v. State1 upon which the lower court relied in

finding that Gelinas suffered egregious harm from an erroneous jury instruction. Upon

review, we believe Hutch was flawed and produces unjust results, and we hereby disavow



      1
          Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) (plurality opinion).
                                                                                    GELINAS—2

it. We find the contested jury instruction in the instant case was erroneous, but egregious

harm did not result. Accordingly, we reverse the court of appeals’ judgment.

                                        I. Background

                                            A. Trial

       Gelinas was charged with the offense of driving while intoxicated following a

roadside stop conducted by Department of Public Safety Trooper Diego Marquez. At trial,

Trooper Marquez testified that he stopped Gelinas because he believed Gelinas failed to

signal out of a private parking lot and that the light illuminating Gelinas’s license plate was

not white, as required by law. Marquez conceded, however, that the former ground for the

stop proved insupportable because the Transportation Code does not require drivers to signal

when turning out of private lots. As a result, the sole ground for the stop became Gelinas’s

alleged non-compliance with Transportation Code section 547.322(f), mandating that lights

illuminating license plates be white.2 Trooper Marquez testified that the light illuminating

the license plate was not white, though he had difficulty recalling the actual color of the light.

The State also offered video from Trooper Marquez’s in-car police camera, though the

testimony at trial suggests that the video fails to conclusively establish the color of the license

plate light. According to Marquez, Gelinas exhibited a number of signs of intoxication after

being pulled over and performed poorly on the standardized field sobriety tests. Based on



       2
        T EX. T RANSP. C ODE § 547.322(f) (“A taillamp or a separate lamp shall be
constructed and mounted to emit a white light that: (1) illuminates the rear license plate;
and (2) makes the plate clearly legible at a distance of 50 feet from the rear.”)
                                                                                  GELINAS—3

his observations, Trooper Marquez concluded that Gelinas was intoxicated.

       In addition to arguing that he was not intoxicated, Gelinas argued at trial that the light

illuminating his license plate was, in fact, white. In support of his position, Gelinas referred

to Trooper Marquez’s in-car camera video as proof that the light was white. Additionally,

Gelinas offered the testimony of his wife, who stated that the light was white and that the car

had passed numerous state inspections. A photograph of the license plate taken by Gelinas’s

wife sometime after the incident was also offered at trial, though, like as with the video, it

appears from the testimony at trial that the photograph was somewhat inconclusive as to the

color of the license plate light.

       Because the issue regarding the color of the light was contested, the trial judge

included an instruction pursuant to Texas Code of Criminal Procedure article 38.23(a)3 in the

jury charge, which stated:

       You are instructed that under our law no evidence obtained or derived by an
       officer or other person as a result of an unlawful stop and detention shall be
       admissible in evidence against such accused. An officer is permitted to make
       a temporary investigative detention of a motorist if the officer has specific
       articulable facts which, taken together with rational inferences from those
       facts, lead him to conclude that a person detained actually is, has been, or soon
       will be engaged in criminal activity. Now, bearing in mind this instruction, if



       3
          T EX. C ODE C RIM. P ROC. art. 38.23(a) (“No evidence obtained by an officer or
other person in violation of any provisions of the Constitution or laws of the state of
Texas, or of the Constitution or law of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case. In any case where the legal
evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has
reasonable doubt, that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such evidence so obtained.”)
                                                                                   GELINAS—4

         you find from the evidence that on the occasion in question the Defendant,
         James Henry Gelinas, was driving his vehicle on a public road immediately
         preceding his stop and detention by the officer and you find from the evidence
         that his vehicle failed to comply with the Texas Transportation Code
         Provision, which requires a white light to illuminate the vehicle’s license plate
         or you have a reasonable doubt thereof, then such stopping of the accused
         would be illegal and, if you find the facts so to be, or if you have a reasonable
         doubt thereof, you will disregard this testimony of Trooper Marquez relative
         to his stopping the defendant and his conclusions drawn as a result thereof, and
         you will not consider such evidence for any purpose whatsoever.

         The instruction was clearly erroneous in that it stated the exact opposite of what the

law provides. In truth, if the jury found that Gelinas was driving on a public road and failed

to comply with the law requiring a white light, the stop would have been legal, not illegal,

and thus the jury could have properly considered the testimony and conclusions of Trooper

Marquez.

         Gelinas was found guilty of driving while intoxicated and was sentenced to 180 days

confinement probated for fifteen months and fined $1000.

                                           B. Appeal

         On appeal, Gelinas asserted, among other things, that he suffered egregious harm as

a result of the charge error.4 Because Gelinas did not object to the erroneous jury instructions

at trial, the court of appeals conducted an Almanza5 harm analysis to determine whether the




         4
             Gelinas v. State, 2011 Tex. App. LEXIS 4524, *7 (Tex. App.—El Paso June 15,
2011).
         5
             Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)
                                                                                  GELINAS—5

error resulted in egregious harm.6 Under Almanza, courts evaluate harm by taking into

account (1) the entire jury charge; (2) the state of the evidence, including contested issues;

(3) arguments of counsel; and (4) any other relevant information contained in the record as

a whole.7 In its analysis, the court of appeals noted the similarities between the facts of the

instant case and those in our Hutch v. State plurality opinion, which essentially stands for the

proposition that when a defendant fails to object to a misstatement of the law relevant to a

contested issue in a jury charge’s application paragraph, the fact that jury arguments properly

explained the law cannot render the resulting error harmless. The court of appeals opted to

follow our reasoning in Hutch, offering little more than an account of our analysis in Hutch

and a blanket conclusion of egregious harm.8 That court reversed and remanded the case

accordingly.9 Upon review, we conclude that Hutch lacks the persuasive value to which the

court of appeals attributed it.

                                         II. Analysis

                                          A. Hutch

       In Hutch, there was a similarly erroneous article 38.23(a) jury instruction containing




       6
           Gelinas, 2011 Tex. App. LEXIS 4524 at *9–10.
       7
           Almanza, 686 S.W.2d at 171.
       8
           Gelinas, 2011 Tex. App. LEXIS 4524 at *10 (citing Hutch, 922 S.W.2d at 170).
       9
           Id. at *13–14.
                                                                                  GELINAS—6

a misstatement of the law.10 Hutch’s arrest was based on the discovery of drugs in a car

which was allegedly pulled over because the driver and the passenger, Hutch, were not

wearing seatbelts.11 Hutch claimed that he and the driver had been wearing their seatbelts

and thus the stop was illegal and all subsequently obtained evidence inadmissible.12 Because

the issue was contested, the trial judge included an article 38.23 instruction.13          The

instruction, however, erroneously stated the exact opposite of what the law provided. It

instructed the jury that if they found that the driver of the car and Hutch had not been

wearing their seatbelts, the stop was illegal, and they should disregard the officer’s testimony

and conclusions.14 In fact, in this scenario, the stop would have been legal and the jury could

have considered the testimony and conclusions of the officer.15

       In Hutch, we concluded that, with regard to the first Almanza factor addressing the

entire charge, the error was “unquestionably wrong” and “was 180 degrees opposite of what

it should have been.”16 We held this factor weighed in favor of finding egregious harm



       10
            Hutch, 922 S.W.2d at 169–70.
       11
            Id. at 169.
       12
            Id.
       13
            Id.
       14
            Id.
       15
            Id. at 170.
       16
          Id. at 172 (citing Hutch v. State, 881 S.W.2d 92, 94 & 96 (Tex. App.—Houston
[1st Dist.] 1994).
                                                                                 GELINAS—7

because the error occurred in the application paragraph of the jury charge—the portion which

authorizes the jury to act—and also on the appellate presumption that the jury understood and

followed the jury charge absent evidence to the contrary.17

       Hutch continued its analysis by addressing the second Almanza factor, calling for

consideration of the state of the evidence. We held that the issue was a contested one, and

noted that no instruction would have been required otherwise.18

       As for the third Almanza factor—arguments of counsel—we originally concluded that

the arguments of counsel, though correct, were insufficient to cure the resulting error.19 We

based this conclusion, in part, on the fact that it has long been said that “jury arguments are

not evidence and the jury may not consider them as such” and on the Supreme Court’s

holding that “arguments of counsel cannot substitute for instructions by the court” in addition

to language from one of our own prior opinions stating that “jury argument is not a substitute

for a proper jury charge.”20 In addition, we cited case law suggesting that a jury argument

alone is never controlling in an analysis under Almanza.21


       17
        Hutch, 922 S.W.2d at 172–73 (citing Rose v. State, 752 S.W.2d 529, 554 (Tex.
Crim. App. 1987) (op. on reh’g); Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex. Crim.
App. 1983); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).
       18
            Hutch, 922 S.W.2d at 173.
       19
            Id. at 174.
       20
        Id. (citing Taylor v. Kentucky, 436 U.S. 478, 488–89 (1978); Arline v. State, 721
S.W.2d 348, 353 n.8 (Tex. Crim. App. 1986)).
       21
            Id. (citing Ruiz v. State, 753 S.W.2d 681, 686 (Tex. Crim. App. 1988)).
                                                                                  GELINAS—8

       Finally, our Hutch opinion made no mention of any other relevant considerations that

might fit within the broad “catch-all” category that constitutes the fourth Almanza factor.

       Because it is flawed and produces unjust results, we decline to apply Hutch’s

reasoning to a jury charge error like that presented in this case. First, Hutch’s Almanza

analysis did not attribute the appropriate weight to the various factors in light of the facts.

As for its analysis of the first Almanza factor—the jury charge in general—we do not agree

with the great weight the Hutch plurality placed on this factor, weighing in favor of finding

egregious harm, simply because of the error’s location in the application paragraph. Just as

Presiding Judge Onion stated in his concurring and dissenting opinion in Almanza, we, too,

question the wisdom of reversing upon “finding a single defect in the exalted ‘application

paragraph’ . . . without consideration of the charge as a whole, or considering whether the

jury was in any way misled.” 22

       Further, the plurality overlooked the possibility that it is the very clarity of the error

that may have mitigated any resulting harm. The erroneous instruction in the application

paragraph in Hutch immediately followed a correct statement of the law in the abstract

portion of the charge. The juxtaposition of the two almost certainly alerted the jury to the

fact that the inconsistency was the result of a typographical error. Though we discuss this

in greater detail in our analysis of Hutch’s conclusion regarding the third Almanza factor, it

is relevant here that the jury arguments in Hutch involved correct recitations of the law,



       22
            Almanza, 686 S.W.2d at 177 (Onion, J., concurring and dissenting).
                                                                                  GELINAS—9

which informed jurors of the correct law and thus likely indicated to the jury that the charge

contained a simple mistake. Common sense would also indicate to most jurors that a police

officer cannot legally stop and investigate a law-abiding citizen without cause.

       Similarly, while we agree that the issue in question was a contested one, we believe

our original conclusion that the second Almanza factor weighed in favor of egregious harm

on this basis alone was overly simplistic. Resolving this factor in such a manner essentially

means that if a trial judge grants a request for an article 38.23 instruction that happens to

contain even the slightest error, an appellant is already one quarter of the way to establishing

egregious harm. In erroneous article 38.23 instruction cases, this factor should be afforded

less weight because it undermines the flexibility required of a factor test applied on a case-

by-case basis and elevates an article 38.23 instruction to a special status subject to a modified

factor test. Thus, we are inclined to limit the weight of this factor in the egregious-harm

evaluation.

       As for the third Almanza factor, the Hutch opinion’s conclusion that the arguments

of counsel, though correct, were insufficient to cure the resulting error relied upon factually

distinguishable case law, Taylor v. Kentucky and Arline v. State, in support of its

conclusion.23 In both Taylor and Arline, the facts were significantly different than those in

Hutch. There, the trial courts refused to give any version of the requested instructions.24 As


       23
           Hutch, 922 S.W.2d at 174 (citing Taylor v. Kentucky, 436 U.S. 478, 488–89 (1978);
Arline v. State, 721 S.W.2d 348, 353 n.8 (Tex. Crim. App. 1986)).
       24
            Taylor, 436 U.S. at 480–81; Arline, 721 S.W.2d at 353 n.8.
                                                                                GELINAS—10

a result, the relevant law was entirely absent from the jury charges. For this reason, we do

not believe that the holdings in Taylor and Arline deeming jury arguments insufficient

substitutes for jury instructions apply in cases like Hutch or the present case, where

arguments are not acting as substitutes for the instructions, but merely constitute a correct

version of the law incorrectly reflected in the jury charge. In such cases, the jury is not

deprived of all relevant law, but is simply faced with an obviously erroneous recitation of that

law, and correct arguments may well serve to alert jurors to the presence and correctness of

such errors. Our belief that the arguments of counsel can be relevant to harm is supported

by the fact that the entirety of the third factor of Almanza focuses on arguments of counsel.

If such arguments were not relevant to harm, why would this be the case?

       Second, and perhaps more importantly, the Hutch opinion resulted in a windfall for

Hutch and creates similar potential windfalls for other defendants in factually similar

circumstances. A defendant may now remain silent where a jury charge is incorrect, hoping

for an acquittal, and then, if a jury finds him guilty, raise the issue on appeal with the hope

of obtaining a new trial. The State, however, has no such opportunity given its limited right

of appeal.25 Not only is the result unfair, but it also encourages defendants to remain silent

with regard to errors in jury instructions and rewards the failure to correct charge errors.

Both fairness and judicial economy favor doing away with such a holding.

       Choosing to decline to apply Hutch does not mean that egregious harm did not occur



       25
            See TEX . CODE CRIM . PROC. art. 44.01.
                                                                                 GELINAS—11

in Gelinas’s case, however. The appropriate inquiry is a fact specific one which must be

performed on a case-by-case basis.

                                     B. Gelinas’s Case

       With regard to Almanza’s first factor, addressing the charge in its entirety, clear error

exists in the application paragraph of the charge to the jury because the instruction misstated

the law. The location of the error in the application paragraph is not as significant as we

once believed. The proper recitations of the law in the abstract paragraph and the arguments

of counsel, discussed in greater detail below, along with the common sense of the jurors,

likely minimized the impact of this error. In fact, the language preceding the incorrectly

worded portion of the jury charge clearly states that it should be read “bearing in mind [the

foregoing] instruction,” referring to the abstract portion. This informed the jury that they

were to apply the law given in the abstract, which constituted a correct statement of the law.

Ultimately, although this factor weighs in favor of a finding of egregious harm, we do not

place such great weight on it as the court of appeals was inclined to do.

       With regard to the second factor, it is obvious that the issue here was a contested one.

The State does not contest this. As a result, this, too, weighs in favor of a finding of

egregious harm. However, as discussed above, in the context of an article 38.23 instruction,

this factor should be assigned less weight given that the presence of an instruction in the first

instance means that the issue was a contested one.

       Regarding the arguments of counsel—Almanza’s third factor—both parties mentioned
                                                                                   GELINAS—12

the law regarding the legality of the stop in their arguments to the jury. In the first portion

of the State’s closing argument, the prosecutor referred the jury to the incorrect portion of

the jury charge and went so far as to read part of it, though not enough of it to constitute an

incorrect statement of the law as he did not reach the portion regarding whether the stop was

legal or illegal. Nevertheless, the State went on to correctly address the issue, explaining that

the stop was legal so long as the light on Gelinas’s license plate was not white. In the final

portion of the State’s closing argument, the prosecutor again correctly stated the law with

regard to the stop’s legality, explaining that if the light was red, that would constitute a

violation of the Transportation Code, and Trooper Marquez could have validly stopped

Gelinas.

       Defense counsel also addressed the issue of the legality of the stop. In his closing

argument, counsel referred to the incorrect jury charge and read the incorrect portion in its

entirety. Like the State, however, he proceeded to correctly set out the law regarding the

legality of the stop and even went so far as to tell the jury that if they found that the light was

white, they could not consider anything else that occurred after the stop.

        Thus, though there were some misstatements of the law during jury arguments, both

parties also argued the correct law very clearly to the jury. Given that we have determined

that jury arguments bear significantly on an Almanza analysis, we believe the third factor

weighs significantly in favor of a finding of no egregious harm.

       As for the fourth Almanza factor, which accounts for any other relevant information
                                                                               GELINAS—13

contained in the record, we note the absence in the record of a note from the jury during

deliberations expressing confusion as to the contradictory language regarding the 38.23

instruction. This suggests that the jury was not confused by the typographical error in the

jury charge or the misstatements during the arguments of counsel. In light of the obviousness

of those errors, the common sense of the jurors, the correct portion of the jury charge, and

the correct statements of law in both parties’ closing arguments, we believe it probable that

the jury resolved the issue in accordance with the law. This factor, too, weighs in favor of

finding no egregious harm.

       Ultimately, we believe that the third and fourth factors weighing in favor of finding

no egregious harm outweigh the first and second factors weighing in favor of finding

egregious harm. Our conclusion is supported by the fact that the Gelinas jury was unlikely

to have been misled given the fact that common sense, the correct abstract paragraph, and

correct jury arguments most likely alerted the jury to the error and allowed them to recognize

the mistake and properly apply the law as correctly stated in the preceding sentence. We

conclude that no egregious harm resulted from the erroneous instruction in the jury charge.

We limit our holding today to the facts of this case and reiterate our assertion that the

Almanza analysis is a fact specific one which should be done on a case-by-case basis.

                                     III. C ONCLUSION

       We find our opinion in Hutch was flawed and produces unjust results, and we hereby

disavow it. After conducting an Almanza analysis in the instant case, we find the erroneous
                                                                              GELINAS—14

article 38.23 instruction did not egregiously harm Gelinas. Accordingly, we reverse the court

of appeals’ judgment and remand the case to the court of appeals to address Gelinas’s

remaining points of error.




DATE DELIVERED: May 15, 2013

PUBLISH
