                                                                                    PD-0143-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 10/16/2015 2:30:05 PM
November 18, 2015                                                 Accepted 11/18/2015 12:46:11 PM
                                                                                    ABEL ACOSTA
                                     PD-0143-15                                             CLERK

                       IN THE COURT OF CRIMINAL APPEALS

                             OF THE STATE OF TEXAS


                          THE STATE OF TEXAS, Appellant

                                           v.

                           CYNTHIA AMBROSE, Appellee


                              Appeal from Bexar County


                                     * * * * *

                       STATE’S PROSECUTING ATTORNEY’S
                    POST-SUBMISSION BRIEF AS AMICUS CURIAE

                                     * * * * *

                                  LISA C. McMINN
                              State Prosecuting Attorney
                                Bar I.D. No. 13803300

                                JOHN R. MESSINGER
                          Assistant State Prosecuting Attorney
                                 Bar I.D. No. 24053705

                                   P.O. Box 13046
                                 Austin, Texas 78711
                              512-463-1660 (Telephone)
                                 512-463-5724 (Fax)
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       The State Prosecuting Attorney respectfully submits its Post-submission Brief

as Amicus Curiae.

                        ARGUMENT AND AUTHORITIES

       The court of appeals held that the trial court erred in granting appellee’s

motion for new trial because she did not suffer egregious harm from the absence of

an accomplice witness instruction.1 At oral argument in this Court, appellee made the

point during rebuttal that egregious harm should not be required because the plain

language of the Article 36.19 does not mention it. Appellee is correct. The statute

states, in full:

   Whenever it appears by the record in any criminal action upon appeal that any
   requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been
   disregarded, the judgment shall not be reversed unless the error appearing from
   the record was calculated to injure the rights of defendant, or unless it appears
   from the record that the defendant has not had a fair and impartial trial. All
   objections to the charge and to the refusal of special charges shall be made at the
   time of the trial.

Contrary to this Court’s opinion in Almanza v. State, Article 36.19 is not “inherently

ambiguous” or “a puzzling grammatical construction that yields no logical meaning,

or any number of any meanings[,]” nor can it “be read dozens of times without




   1
       State v. Ambrose, 457 S.W.3d 154, 162 (Tex. App.–San Antonio 2015).

                                            1
revealing with certainty what the Legislature intended.”2 Article 36.19 plainly 1)

defines error as the disregard of the four preceding articles which govern the creation

and execution of the charge, 2) prohibits reversal for errors that do not cause harm,

and 3) requires the defendant to object at trial.3

          To appellee’s point at argument, “egregious harm” does not appear in this

scheme. In fact, it does not exist in any opinion from this Court prior to Almanza.

But it is necessary to appellee’s argument because it is only through the creation of

the egregious harm standard that her complaint could be heard post-trial.

          In Almanza, this Court ignored the plain language of the statute by

“conclud[ing] that Article 36.19 actually separately contains the standards for both

fundamental error and ordinary reversible error.”4 This conclusion is the genesis of

“egregious harm”: “[I]f no proper objection was made at trial and the accused must

claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so

egregious and created such harm that he ‘has not had a fair and impartial trial’ -- in


      2
          686 S.W.2d 157, 166 (Tex. Crim. App. 1985).
  3
         Conspicuously absent from Article 36.19 is an allowance for objections made in motions for
new trial, which was present in a predecessor (Article 723/743) but removed over 100 years ago.
Compare Acts 1897, 25th Leg., ch. 21, p. 17 § 1 (“. . . which error shall be excepted to at the time
of the trial, or on a motion for a new trial.”) with Acts 1913, 33rd Leg., ch. 138, p. 279, § 4 (“. . . and
all objections to the charge, and on account of refusal or modification of special charges shall be
made at the time of the trial.”).
      4
          Almanza, 686 S.W.2d at 171.

                                                    2
short ‘egregious harm.’”5 Thus, it is only by embracing fundamental error—and

labeling the requisite harm “egregious”—that this Court held that an unobjected-to

claim of charge error is not forfeited by inaction. Appellee’s call for a return to the

statute’s plain language is inherently a call to undo Almanza’s central holding.

       This should be considered. The application of the egregious harm standard to

motions for new trial is merely one of the potential problems created by the erroneous

interpretation of Article 36.19. Inconsistent treatment of the same claim under

different names is another. In this case, for example, there was no “error” under

Almanza unless there was no possible strategic reason not to request an accomplice

witness instruction,6 and no reversal unless appellee was deprived of a fair an

impartial trial. The trial court granted a new trial for charge error yet found that

counsel was not deficient and/or appellee was not prejudiced by the absence of the

instruction. This should not be possible, and is further evidence of the confusion that

persists surrounding Almanza.




   5
       Id.
   6
        When Almanza speaks of “erroneous” omissions of issues in the charge, it speaks, in part,
of omissions upon which a trial court has a duty to instruct sua sponte. Posey v. State, 966 S.W.2d
57, 63-64 (Tex. Crim. App. 1998). While no such duty applies to potential defensive issues, which
frequently depend upon trial strategy, Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007), this Court has rejected such a characterization of the accomplice-witness rule. Zamora v.
State, 411 S.W.3d 504, 513-14 (Tex. Crim. App. 2013).

                                                3
       Since Almanza, this Court has created a very orderly preservation scheme,7

emphasized its threshold nature, and raised it on its own motion when necessary.8

Given appellee’s arguments regarding the propriety of the prevailing interpretation

of Article 36.19 and the collateral effect it has on preservation of charge claims, it is

appropriate to order additional briefing so that these issues may be fully considered.

                                 PRAYER FOR RELIEF

       WHEREFORE, the State of Texas prays that this Court affirms the judgment

of the Court of Appeals.

                                              Respectfully submitted,

                                                  /s/ John R. Messinger
                                              JOHN R. MESSINGER
                                              Assistant State Prosecuting Attorney
                                              Bar I.D. No. 24053705

                                              P.O. Box 13046
                                              Austin, Texas 78711
                                              information@spa.texas.gov
                                              512/463-1660 (Telephone)
                                              512/463-5724 (Fax)




   7
      See Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (calling Marin v. State, 851
S.W.2d 275 (Tex. Crim. App. 1993), “a watershed decision in the law of error-preservation.”).
  8
       See, e.g., Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App. 2015) (granting review on its
own motion, vacating the judgment of the court of appeals, and remanding the case to that court to
address whether appellant preserved his claim).

                                                4
                      CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this

document contains 1,158 words.


                                              /s/ John R. Messinger
                                            John R. Messinger
                                            Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

     The undersigned hereby certifies that on this 16th day of October, 2016, a true

and correct copy of the State’s Post-submission Brief as Amicus Curiae has been

eFiled or e-mailed to the following:

Dayna L. Jones
1800 McCullough Avenue
San Antonio, Texas 78212
daynaj33@gmail.com

S. Patrick Ballantyne
Assistant Criminal District Attorney
101 W. Nueva St., 7th floor
San Antonio, Texas 78205
sballantyne@bexar.org

                                              /s/ John R. Messinger
                                            John R. Messinger
                                            Assistant State Prosecuting Attorney




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