            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



              M EYERS, J., filed a dissenting opinion.


                                 DISSENTING OPINION

       I have always loved great theater and this case has all the makings of a Tony

Award winner. On stage right we have Judge Keasler and the plurality sterilizing Charlie

Baird’s plurality opinion in Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996), and

in the process basically eliminating the possibility of ever getting relief under the

egregious harm standard of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).
                                                                          Gelinas dissent–Page 2

Entering from stage left, we have Judge Price’s impassioned defense of Almanza. Lastly,

our heroine Judge Cochran saves the day for the plurality by concluding “that the error in

this jury charge did not cause appellant egregious harm because the jury instruction was

just an indecipherable lump of legal gobbledy-gook that no one (including the lawyers

and the judge) either understood or paid attention to.” See Cochran, J., concurring

opinion at *4-5.1 But this case is a classic example of the Almanza tragedy.

       Instead of going to impossible lengths to disavow Hutch, the plurality should take

the time to look at the inequality of Almanza and overrule it instead. The conflicting

decisions of the court of appeals and the plurality in this case exhibit the conundrum

created by Almanza in trying to determine harm vs. egregious harm. Analysis under

Almanza has resulted in uneven rulings because the factors used to distinguish between

harm and egregious harm are difficult to decipher. In addition, the rational of Almanza

having the egregious harm standard in cases where the defendant did not object belies the

truth that no attorney would ignore his ethical duty to his client and consciously fail to

object to an improper jury charge. I do not know of any lawyer who would risk having an

ineffective assistance of counsel ruling against him on the slim possibility that a jury

charge error may eventually result in the reversal of a guilty verdict.

       Appellate courts have clearly had difficulty judging how to weigh the Almanza



       1
          I kinda thought that this instruction would become the gold standard for egregious harm.
It certainly has all the markings: 1. It was an indecipherable lump 2. It was legal gobbledy-gook
and 3. It was not understood by (a) anyone (b) the lawyers or (c) the judge.
                                                                         Gelinas dissent–Page 3

factors, but the worst feature of the Almanza egregious harm standard is that it is so unfair

to defendants, especially in light of how we treat the State in similar situations. The State

does not have to show egregious harm, or even some harm–the State does not have to

show harm at all because in Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), we

bestowed the State with the hypothetically correct jury charge. In Malik, we overruled

Benson and Boozer to relieve the State of the burden of objecting to jury charge error in

sufficiency cases.2 Malik created the hypothetically correct jury charge so that the State

does not suffer when there is an erroneous jury instruction, so why should the defendant

be treated differently and be given the almost impossible task of showing egregious harm

from the same error?

       Instead of going to these lengths to disavow Hutch, it would be more equitable to

do away with the enigma of Almanza and treat all jury charge error under the same “some

harm” standard. It seems obvious that the plurality’s intent all along was not to

reexamine the court of appeals’s analysis in this case but to simply eliminate a

defendant’s ability to ever obtain relief if his attorney failed to object to a defective

charge. Therefore, I respectfully dissent.


Filed: May 15, 2013
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       2
        See Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982) and Boozer v. State, 717
S.W.2d 608 (Tex. Crim. App. 1984).
