             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0973-06



                             ELMER RAY JORDAN, Appellant

                                                 v.

                                   THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SECOND COURT OF APPEALS
                             DENTON COUNTY

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

       The Court holds that automatic reversible error results from the legal insufficiency of the

evidence of an enhancement allegation. This is the first time since our decision in Cain1 that we

have held any error to be automatically reversible except those errors so designated by the Supreme

Court. For this reason, and others, I respectfully dissent.

       A conclusion on appeal that the evidence is legally insufficient to support a particular verdict

or finding serves to remove that verdict or finding from the case. Period. Any adverse consequences

that depend entirely upon the verdict or finding disappear because there is no a longer a verdict or


       1
           Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
                                                                           JORDAN DISSENT – 2

finding to support them. When the evidence is legally insufficient to support a verdict of guilt, for

example, the judgment of conviction, which depends entirely upon the verdict of guilt, is overturned.

A similar result occurs with respect to deadly weapon findings. The assessment of a deadly weapon

finding adversely affects a defendant’s eligibility for parole and mandatory supervision.2 If the

evidence is legally insufficient to support a deadly weapon finding, then the finding is removed and

those adverse consequences disappear.

       The same is true when the evidence supporting an enhancement allegation is legally

insufficient. In that case, the finding of “true” is removed so that the judgment reflects a simple

unenhanced finding of guilt. If, without that enhancement, the term of years assessed is no longer

within the range of punishment, then a remand for a new punishment hearing would be appropriate.

       But if an adverse consequence does not depend entirely upon the verdict or finding for which

the evidence is insufficient, then the matter is a question of trial error, not sufficiency of the

evidence. If the evidence in this case was legally insufficient to support the enhancement, then the

enhancement should not have been submitted to the jury,3 and as a result, the jury should not have

been instructed on the 25-year minimum for repeat offenders. Appellant may wish to phrase the

issue as one of evidentiary insufficiency, but the real error upon which he is predicating his request

for relief is a jury charge error that flows from the insufficiency.

       We should not assume that every meritorious legal insufficiency claim will result in relief

to a defendant. For example, the relief for insufficiency of the evidence to support a deadly weapon



       2
           T EX . GOV ’T CODE §§508.145(d), 508.149(a)(1).
       3
          See Malik v. State, 953 S.W.2d 234, 237 (Tex. Crim. App. 1997)(when the evidence is
legally insufficient, “the case should never have been submitted to the jury”).
                                                                            JORDAN DISSENT – 3

finding is deletion of the finding. But if the offense is a 3(g) offense, the defendant may obtain no

practical benefit from the appellate holding of insufficiency of the evidence.4

       Drug-free-zone findings produce both trial and post-trial effects, and provide a good example

of the difference between a claim of legally insufficient evidence and a claim of jury charge error that

arises from the fact of legally insufficient evidence. A drug-free-zone finding affects the range of

punishment5 and also affects eligibility for parole and mandatory supervision.6 A legal insufficiency

claim, if found to be meritorious, would result in removing the drug-free-zone finding, and the

adverse parole and mandatory supervision consequences would disappear. If the term of years

assessed by the jury exceeded the range of punishment for the unenhanced offense, then a remand

for resentencing would also be required. But if the term of years assessed was within the range of

punishment for the unenhanced offense, then a remand for resentencing could be based only on a

claim of jury charge error – that the jury was given an incorrect instruction on the range of

punishment, which may in turn have affected the jury’s assessment of punishment.

       The Court notes numerous cases in which no harm analysis was conducted after a finding of

insufficient evidence to support enhancement allegations. But those cases all far pre-date Cain, in

which we held that the only errors categorically immune from a harm analysis are those that have

been designated as such by the United States Supreme Court.

       This leads me to the harm analysis. Depending upon whether appellant objected, the error




       4
           TEX . GOV ’T CODE §§508.145(d), 508.149(a)(2)-(16).
       5
           T EX . HEALTH & SAFETY CODE §481.134.
       6
           TEX . GOV ’T . CODE §§508.145(e), 508.149(a)(14).
                                                                             JORDAN DISSENT – 4

in the jury charge should be analyzed for “some harm” or “egregious harm.”7 Regardless of which

standard is applied in this case, I would hold that the error is harmless.

       The Court concludes that a harm analysis should not be done because it would involve

speculation. Though there is always speculation in a harm analysis, it is perhaps true that in most

cases like this one such speculation would lead to a finding of harm. But the fact that a particular

error may almost always be harmful does not mean that it is immune from a harm analysis.8

       In this case the harmlessness seems apparent. Even if the jury had been correctly instructed,

it would have heard exactly the same evidence. The prior convictions would still have been

presented as “convictions” rather than simple bad acts. The only differences are that the jury would

have been permitted to assess a lower minimum punishment, and the range of punishment would

have been expanded by ten years. But the jury gave appellant 99 years – the highest term of years

possible. I could readily conclude that the ten-year difference in the lower end of the punishment

range might have mattered if the jury had assessed 25 years or 50 years, or even 75 years. But not

99 years.

       I respectfully dissent.

Filed: June 18, 2008

Publish




       7
            Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
       8
            Cain v. State, 947 S.W.2d at 264.
