                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-05-422-CR




RODGER LOU GRISSAM                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


                                    ------------

            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                 MEMORANDUM OPINION ON REMAND 1

                                    ------------

      Appellant Rodger Lou Grissam challenges the legal and factual sufficiency

of the evidence to support his conviction and twelve-year sentence for burglary.

In our original opinion and judgment, we reversed the trial court’s judgment,

rendered a judgment of conviction on the lesser included offense of criminal



      1
          … See Tex. R. App. P. 47.4.
trespass, and remanded the case for a new trial on punishment. Grissam v.

State (“Grissam I”), No. 02-05-00422-CR, 2007 WL 2405122, at *4–5 (Tex.

App.—Fort Worth Aug. 24, 2007) (mem. op., not designated for publication),

rev’d, Grissam v. State (“Grissam II”), 267 S.W.3d 39, 40 (Tex. Crim. App.

2008).   Appellant’s indictment charged burglary under two theories, (1)

breaking and entering with intent to commit theft and (2) breaking and entering

and committing or attempting to commit theft.        Id. at *1.   The abstract

paragraph of the jury charge contained only an instruction on “intent to commit

theft,” but the application paragraph contained only an instruction on

“committed or attempted to commit theft.” Id. at *2–3. Holding that there

was no evidence that Appellant “committed or attempted to commit theft”—the

only offense submitted by the application paragraph—we reversed the trial

court’s judgment and rendered judgment on the lesser included offense of

criminal trespass. Id. at *4, 5.

      The court of criminal appeals reversed our judgment, instructing us that

because the charge contained both theories of burglary, even though only one

was in the application paragraph, we should have measured the legal

sufficiency of the evidence against the requirements for conviction under either

theory. Grissam II, 267 S.W.3d at 40. Following the court of criminal appeals’




                                       2
directive to weigh the sufficiency of the evidence against both theories of

burglary, we now affirm the trial court’s judgment.

                             Standards of Review

      When reviewing the legal sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The sufficiency of the evidence

should be measured by the elements of the offense as defined by the

hypothetically correct jury charge for the case. Grotti v. State, 273 S.W.3d

273, 280 (Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). Such a charge would be one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which

the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim.

App. 2001); Malik, 953 S.W.2d at 240.           The law as authorized by the

indictment means the statutory elements of the charged offense as modified by

the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.

App. 2000).

                                       3
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

                                        4
factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the factfinder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                                    Burglary

      The indictment charged Appellant with burglary of a habitation when he

“did . . . intentionally or knowingly, without the effective consent of Ashley

Carey, the owner thereof, enter a habitation with intent to commit theft

. . . and did attempt to commit or commit theft.” See Tex. Penal Code Ann.

§ 30.02(a)(1) (Vernon Supp. 2008). The jury found him guilty “as alledged in

the indictment.”




                                       5
                                   Evidence

      Ashley Carey Greer was the State’s main witness at trial. She testified

that she was alone in the home she shared with her parents one day when she

heard someone knocking at the back door. Greer looked through the door’s

peephole and saw two men whom she did not recognize standing at the door

and a car parked in the residence’s carport where it could not be seen from the

road. Greer testified that she did not speak or otherwise alert the men to her

presence because she did not know them.        She said that as she watched

though the peephole, the men knocked on the door a few more times and then

wiped their fingerprints from the metal screen door. The men then jiggled the

door knob and opened the door, which was not locked. Greer testified that she

crouched behind the door as it opened. Both men entered the house. One

man, who was carrying a flashlight, walked into another room of the house,

while the other man, whom Greer identified as Appellant, stood at the door.

Greer testified that the other man told Appellant to tell someone who was

waiting in the car to honk if they saw anyone coming and that the men would

leave through the front door, and Appellant shouted these instructions to

whoever was waiting in the car.

      Greer said Appellant eventually closed the door; when he did so, she

stood up to confront him. Appellant was startled and said he was looking for

                                      6
his friend “John.” The other man came back into the room and said that he

was looking for his mother. The men then left through the same door, got into

the car, and drove away. Greer testified that she saw two women in the car

with the men. She wrote down the car’s license plate number, locked herself

in the bathroom, and telephoned her father.

      Greer’s father, Rick Carey, testified that Greer called him and said

someone had tried to break into their home. Carey immediately called 911.

      Hood County Deputy Sheriff Clint Pullin testified that he responded to

Carey’s 911 call. Greer gave him the car’s license plate number, and a sheriff’s

dispatcher looked up the corresponding address record. Deputy Pullin went to

that address and found the car.

      Hood County Sheriff’s Investigator Larry Goin testified that he was

dispatched to the car’s location, where another law enforcement officer had

already taken Appellant, another man, and two women into custody.

Investigator Goin arrested Appellant, took him to the Hood County Law

Enforcement Center, and interviewed him. Appellant gave a written statement

in which Appellant said that he, his friend, Joey LeFebvre, his wife, and

LeFebvre’s girlfriend went to a house looking for “John” and LeFebvre’s

mother; LeFebvre knocked on the door and then went inside as he called,

“Mom, mom”; a lady stood up from behind the door and said, “No John lives

                                       7
here”; and Appellant called to LeFebvre, who remarked as they left, “We must

have the wrong house.” On cross-examination, Investigator Goin testified that

LeFebvre had already been convicted for burglary in connection with the same

incident.

                                  Discussion

      Appellant argues that the evidence is legally and factually insufficient to

prove that Appellant entered Greer’s residence with the specific intent to

commit theft. We disagree.

      It is well settled in this state that the question of the intent with which

a person unlawfully enters a habitation is a fact question for the jury to be

drawn from the surrounding circumstances. Moreno v. State, 702 S.W.2d 636,

641 (Tex. Crim. App. 1986); Stearn v. State, 571 S.W.2d 177, 177 (Tex.

Crim. App. [Panel Op.] 1978) (holding evidence of intent to commit theft

sufficient when defendant was found in residence’s kitchen and immediately

fled, even though nothing in house had been disturbed). The jury is exclusively

empowered to determine the issue of intent, and the events of a burglary may

imply the intent with which the burglar entered. Moreno, 702 S.W.2d at 641;

Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.—Houston [1st Dist.] 1984,

no pet.). Furthermore, property need not be taken for proof of intent to commit




                                       8
theft to be sufficient. Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App.

[Panel Op.] 1981).

      In this case, the evidence shows Appellant and LeFebvre entered Greer’s

house through the back door without her permission.            They wiped their

fingerprints from the outer, metal screen door.         Though it was midday,

LeFebvre was carrying a flashlight. Appellant instructed the women in the car

to honk if anyone drove up and said that he and LeFebvre would leave the

residence through the front door. The car was parked in the carport where it

was concealed from traffic on the public roadway. When Greer confronted the

men, they gave conflicting reasons for being in the house; Appellant said they

were looking for “John,” and LeFebvre said they were looking for LeFebvre’s

mother. Both stated reasons were inconsistent with the men’s actions.

      Considering the evidence in the light most favorable to the verdict, we

hold a that a rational trier of fact could find the essential elements of burglary,

including intent to commit theft as alleged in the indictment’s first theory,

beyond a reasonable doubt. Therefore, the evidence is legally sufficient. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Considering the evidence in a

neutral light, we also hold that the jury was rationally justified in finding guilt

beyond a reasonable doubt; thus, the evidence was factually sufficient. See

Watson, 204 S.W.3d at 414. We overrule both of Appellant’s points.

                                        9
                                Conclusion

     Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.




                                         ANNE GARDNER
                                         JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: March 12, 2009




                                    10
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-05-422-CR


RODGER LOU GRISSAM                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                   DISSENTING OPINION ON REMAND

                                    ------------

      Because the majority holds that there is no error in the case before us, I

must respectfully dissent, with all appropriate consideration to the instructions

of the Texas Court of Criminal Appeals. On remand, the majority holds, in

response to instructions from the Texas Court of Criminal Appeals in Grissam

II,1 that we ignore the application paragraph in determining the sufficiency of




      1
          … Grissam v. State, 267 S.W.3d 39, 41 (Tex. Crim. App. 2008).
the evidence and consider only the original indictment and hypothetically

correct jury charge. 2    I believe we are establishing dangerous precedent in

limiting the State’s ability to determine its own trial strategy. The State must

not be deprived of its essential authority to determine the allegations it presents

to the jury.

      In the case now before this court, the State abandoned an alternative

means of committing the offense of burglary. The majority, in response to the

analysis in Grissam II, essentially holds that the State is not permitted to

abandon an allegation contained in the indictment by not asking that it be

submitted to the jury or by asking that it not be submitted to the jury. The

charge conference was not recorded, but the State did not voice any objection

to the abandonment of the burglary with intent to commit theft allegation. On

original appeal, the State did not argue that it did not intend to abandon that

allegation. Rather, the State argued that it had proved the allegation in the

indictment that Appellant committed burglary and did attempt to commit or

commit theft.

      While it is true, as the Texas Court of Criminal Appeals recognizes, that

generally “[t]he legal sufficiency of evidence is measured against the




      2
          … Majority op. at 2, 3.

                                        2
requirements for conviction in a correct charge of the court (as distinguished

from the charge that actually was given),” 3 Malik addressed the problems of a

jury charge that unfairly increased the State’s burden. 4 It did not address the

case in which the State’s trial strategy was to abandon an allegation in the

indictment and the trial strategy did not work to the State’s advantage. 5

      The Texas Court of Criminal Appeals has addressed the State’s trial

strategy in not requesting a lesser included jury instruction, and a divided court

has held that the State’s decision regarding trial strategy must be honored.6

Judge Hervey wrote,

             The issue in this case is whether an appellate court may
      reform a trial court’s judgment to reflect a conviction for an
      unrequested lesser-included offense not submitted to the jury,
      when the appellate court decides that the evidence is insufficient
      to support the jury’s guilty verdict for the greater offense but is
      sufficient to support a conviction for the lesser-included offense.
      We decide that, under these circumstances, an appellate court may
      not reform the trial court’s judgment to reflect a conviction for the
      lesser-included offense.7




      3
      … Grissam II, 267 S.W.3d at 40 (quoting Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997)).
      4
          … Malik, 953 S.W.2d at 235, 240.
      5
          … See id. at 234–40.
      6
          … Haynes v. State, 273 S.W.3d 183, 184 (Tex. Crim. App. 2008).
      7
          … Id.

                                        3
      Fortunately for the prosecution in Brosky v. State, appellate courts

respected its trial strategy and did not try to revive a theory not presented to

the jury.8   In his original trial, the jury sentenced Brosky to ten years’

incarceration and recommended probation in a murder case. The State then

indicted Brosky for organized criminal activity in the murder of the same person.

Brosky brought a writ of habeas corpus arguing double jeopardy, and relief was

denied. In the opinion on appeal from the second trial, this court noted, “[I]n

the murder prosecution, the jury was not instructed on the conspiratorial theory

of parties, nor did the prosecutor argue that Brosky acted as part of a

conspiracy.” 9 Both convictions stood, and the second jury sentenced Brosky

to forty years’ confinement. Fortunately for the State, the prosecution was

allowed to determine its own trial strategy, and the appellate courts did not

step in to “fix” the prosecution’s “mistake.”

      In the case now before this court, the State did not request a jury

instruction on the abandoned allegation. The State did not object to the jury

charge that did not include the abandoned count. The State did not complain

on appeal to this court that the abandoned count should have been submitted


      8
        … Brosky v. State, 915 S.W.2d 120, 140 (Tex. App.—Fort Worth, pet.
ref’d), cert. denied, 519 U.S. 1020 (1996).
      9
      … Id. (citing Ex parte Brosky, 863 S.W .2d 783, 785 (Tex. App.—Fort
Worth 1993, no pet.)).

                                       4
to the jury. At some point appellate courts must accord lawyers the respect

that is their due and allow them to pursue the trial strategy they deem best.

      The Texas Court of Criminal Appeals has now instructed this court to re-

evaluate the sufficiency of the evidence under Malik by measuring the evidence

not against what the jury was asked to weigh, but against the hypothetically

correct charge as measured by the hypothetically correct indictment.10 In this

case, what is the hypothetically correct indictment? Is it the indictment before

the State abandoned the first paragraph charging burglary with intent to commit

theft, or the indictment as it stood after the State abandoned the first

paragraph? Or have we been instructed that the State may no longer abandon

an allegation without formally amending the indictment? If an appellate court

may not modify a judgment to show conviction for a lesser included offense not

requested or submitted to the jury,11 may it nevertheless modify a judgment to

show conviction for an abandoned allegation not submitted to the jury?


      10
        … See Grissam II, 267 S.W.3d at 40 (quoting Malik, 953 S.W.2d at
240); Fuller v. State, 73 S.W.3d 250, 260 (Tex. Crim. App. 2002) (Womack,
J., concurring) (“The court of appeals found it unclear whether Malik would use
a hypothetically correct jury charge that was based on a hypothetically correct
indictment or one that was based on the actual indictment.”); Rosales v. State,
4 S.W.3d 228, 235 n.3 (Tex. Crim. App. 1999) (Meyers, J., concurring) (“By
extending Malik to the context presented in this case, the majority appears to
have created a ‘hypothetically correct indictment’ doctrine.”), cert. denied, 531
U.S. 1016 (2000).
      11
           … Haynes, 273 S.W.3d at 184.

                                       5
      The instruction upon which the Texas Court of Criminal Appeals has

instructed this court to rely, and upon which the majority does rely, is an

impermissibly expansive definition of burglary that was not properly before the

jury.12 The State not only did not object to the jury charge; the State, when

asked if it had any objections or requested charges, responded, “No. Your

Honor.” When a defendant states that he has “no objection” or does not object

to the jury charge, charge error is reversible only if it results in egregious

harm.13 What is the effect when the State affirmatively declares that it has no

objection to a jury charge that reflects abandonment of a paragraph of the

indictment?

      The Malik court recognized the constitutional implications inherent in a

sufficiency review in a footnote,

      We recognize that due process prevents an appellate court from
      affirming a conviction based upon legal and factual grounds that
      were not submitted to the jury. Perhaps recognizing this principle,
      the Fifth Circuit implied that the complete absence of a party’s


      12
        … See Plunkett v. Estelle, 709 F.2d 1004, 1009 (5th Cir. 1983), cert.
denied, McKaskle v. Plunkett, 465 U.S. 1007 (1984); see, e.g., Cook v. State,
884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (“It is error for a trial judge to
not limit the definitions of the culpable mental states as they relate to the
conduct elements involved in the particular offense.”).
      13
       … Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen v.
State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996).

                                      6
     instruction from the jury charge may present constitutional
     problems. However, we do not believe that due process is
     necessarily violated by affirming a conviction in which the jury
     charge contains extra, unnecessary elements that are not supported
     by the evidence. Moreover, the Supreme Court has indicated that
     the McCormick/Dunn/Cole rule does not bar retrial of a criminal
     defendant.14

So where do Apprendi,15 Ring,16 and Blakely     17
                                                     fit in?   The Texas Court of

Criminal Appeals explained,

     The Supreme Court determined in Apprendi v. New Jersey that
     “[o]ther than the fact of a prior conviction, any fact that increases
     the penalty for a crime beyond the prescribed statutory maximum
     must be submitted to a jury, and proved beyond a reasonable
     doubt.” As Justice Scalia later explained for the Supreme Court in
     Blakely v. Washington, the statutory maximum in this context
     means the “maximum sentence a judge may impose solely on the
     basis of the facts reflected in the jury verdict or admitted by the
     defendant.” Thus, the Apprendi line of cases requires that, in any
     case in which the defendant has elected to exercise his Sixth
     Amendment right to a jury trial, any discrete finding of fact that has
     the effect of increasing the maximum punishment that can be
     assessed must be made by the jury, even if that fact-finding occurs
     as part of the punishment determination.

           The appellant relies on this determination by Apprendi and its
     progeny that a sentence cannot be greater than that authorized by
     the jury’s fact-finding. But these cases hold that a trial court is
     prohibited from unilaterally increasing individual sentences on the


     14
          … Malik, 953 S.W.2d at 238 n.3 (citations omitted).
     15
          … Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
     16
          … Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002).
     17
          … Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

                                       7
         basis of facts that were not resolved by the jury. Thus, Apprendi
         and its progeny clearly deal with the upper-end extension of
         individual sentences, when that extension is contingent upon
         findings of fact that were never submitted to the jury.18

         In the case now before this court, the common element of the first and

second paragraphs of the indictment was entry into a habitation without the

effective consent of the owner. That is, the common element was criminal

trespass.19 Only the second paragraph was submitted to the jury, and the jury

did return a verdict on the issue of criminal trespass, a misdemeanor.20 What

makes criminal trespass a burglary and, therefore, a felony, is the theft element.

There was no evidence that Appellant committed theft or attempted to commit

theft.        Yet this was the issue submitted to the jury that converted the

misdemeanor criminal trespass into a felony.       The jury was never asked to

consider evidence that Appellant entered the house with intent to commit theft.

That is, the question of intent to commit theft—the “discrete finding of fact

that has the effect of increasing the maximum punishment that can be




         18
         … Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim. App. 2006)
(citations omitted).
         19
              … See Tex. Penal Code Ann. § 30.05(a) (Vernon Supp. 2008).
         20
              … See id. § 30.05(d).

                                          8
assessed” 21 —was never submitted to the jury even though the Apprendi line of

cases makes it clear that such a determination “must be made by the jury.” 22

      There is ample evidence that Appellant committed criminal trespass. But

what is the evidence of any intent to commit theft? Is it a default position? Is

it a presumption? Is any entry into a habitation without the effective consent

of the owner a burglary with intent to commit theft unless the defendant

disproves this presumption? It was daytime, not nighttime. There was no

evidence of any plan to commit theft or any attempt to commit theft. We can

only speculate, and the jury could only speculate, regarding Appellant’s intent

in entering the house.

      As we stated in our original opinion, reiterating well-established law,

      The application paragraph of a jury charge is that which authorizes
      conviction, and an abstract charge on a theory of law which is not
      applied to the facts is insufficient to bring that theory before the
      jury. In the absence of an application paragraph incorporating a
      theory recited in the abstract portion, a jury is not authorized to
      convict on that theory.23




      21
           … Barrow, 207 S.W.3d at 379.
      22
           … Id.
      23
        … Grissam v. State (Grissam I), No. 02-05-00422-CR, 2007 WL
2405122, at *3 (Tex. App.—Fort Worth Aug. 24, 2007) (citations omitted),
rev’d, 267 S.W.3d at 41.

                                       9
      Similarly, the Texas Court of Criminal Appeals has repeatedly held, “The

application paragraph of a jury charge is that which authorizes conviction, and

an abstract charge on a theory of law which is not applied to the facts is

insufficient to bring that theory before the jury.” 24

      The issue in Malik was a

      jury instruction concerning the legality of appellant’s detention
      [that] should not have been used to measure the sufficiency of the
      evidence. The legality of appellant’s detention is not an element of
      the offense charged but merely relates to the admissibility of
      evidence. Moreover, a hypothetically correct jury charge would not
      have made the admissibility of a particular piece of evidence a
      precondition for conviction.25

      Did the Malik court intend to abrogate the requirement of an application

paragraph that submitted to the jury all the elements of the offense of which

the jury convicts? 26    Does Texas law no longer require an application

paragraph? 27    Is the State’s abandonment of a paragraph or count of the




      24
        … McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996),
cert. denied, 519 U.S. 1119 (1997).
      25
           … Malik, 953 S.W.2d at 240.
      26
         … See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (providing
jury is exclusive judge of facts).
      27
        … See id. arts. 36.13 (providing jury is exclusive judge of facts); 36.14
(providing that judge shall deliver to jury a “written charge distinctly setting
forth the law applicable to the case”) (emphasis added); 36.19 (providing for
our review of charge error) (Vernon 2006).

                                         10
indictment no longer permitted? In the case now before this court, the jury did

not find the elements of the offense of burglary with intent to commit theft.

Is this now charge error, and should we apply an Almanza analysis? 28

      I believe that Malik has been expanded far beyond what is constitutionally

permissible. When a defendant or the State in a criminal case demands to have

a jury try the case, the jury returns a verdict only as to the offenses submitted

to it in the application paragraph, according to the applicable provisions of the

Texas Code of Criminal Procedure. In her dissent to the majority opinion in

Dougherty v. State,29 Judge Keller explains the necessary interplay between the

definitional portion of a jury charge in a criminal case and the application

paragraph:

      In Patrick—a case with a similar jury charge error—this Court
      limited its harm analysis in just the way that the Court of Appeals
      did in this case. We looked no further than the application
      paragraph to determine that the charge error in that case was
      harmless. In Medina we did look at other factors, but along the
      way we cited to Plata v. State. In Plata, we considered the reverse
      problem: a correct abstract instruction in a jury charge that lacked
      a proper application paragraph. In concluding that the error was
      not cured by the abstract instruction, this Court said:

              [A]bstract or definitional paragraphs serve as a kind of
              glossary to help the jury understand the meaning of


      28
           … Almanza, 686 S.W.2d at 171–72.
      29
        … Dougherty v. State, 188 S.W.3d 670 (Tex. Crim. App. 2006) (Keller,
J., dissenting).

                                        11
               concepts and terms used in the application paragraphs
               of the charge . . . . The inclusion of a merely
               superfluous abstraction, therefore, never produces
               reversible error in the court’s charge because it has no
               effect on the jury’s ability fairly and accurately to
               implement the commands of the application paragraph
               or paragraphs. 30

      Definitions limit the jury’s consideration to the facts of the case, but they

impose no temporal or geographic limitations and restrict consideration to no

named persons. That is why the application paragraph is required. The jury

must find all the elements of the offense, including culpable mental state,

geographic location, guilty acts, and persons named.31 The definitions do not

incorporate the required elements set out in the indictment.

      I believe that minimal constitutional due process protections require that

in a jury trial, the jury must find not the abstract elements of the offense, but

the acts alleged in indictment. When the State abandons an allegation, it is no

longer available to be reclaimed under Malik. If the State’s abandonment of the

wrong allegation does not render the proof insufficient, which I believe it does




      30
           … Id. at 671 (citations omitted).
      31
        … Swearingen v. State, 101 S.W.3d 89, 103 (Tex. Crim. App. 2003)
(Johnson, J., dissenting) (“[T]he reviewing court must remain cognizant that the
state always carries the burden of proof to establish each and every element of
a criminal offense at trial.”).

                                         12
in this case, it must at least constitute charge error under these facts because

the offense described in the definition section of the jury charge was not the

offense submitted in the application paragraph.     For these reasons, I must

respectfully dissent from the majority’s opinion.




                                           LEE ANN DAUPHINOT
                                           JUSTICE


PUBLISH

DELIVERED:    March 12, 2009




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