                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00075-CR


KENDELL SHAWN VANBELLE                                             APPELLANT
A/K/A SHAWN VANBELLE

                                        V.

THE STATE OF TEXAS                                                       STATE


                                     ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                     ----------

                            DISSENTING OPINION

                                     ----------

      I write separately in dissent, not because I believe that the majority does

not follow the spirit of current case law, but because I believe that since the

decision in Almanza v. State, 1 jury charges in criminal cases have grown

increasingly irrelevant.   Our courts have held that an error in the application

paragraph that instructs the jurors on the elements they must find in order to

      1
       686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g) (Almanza I).
convict is harmless if the abstract definitional paragraph is correct. 2 Courts have

also held that an error in the abstract definitional portion of the jury charge does

not egregiously mislead the jury if the application paragraph is correct. 3

Apparently, if any portion of the jury charge is correct, the erroneous verdict form

is rendered harmless.

      Case law instructs us that we must assume that the jury follows the

instructions in the jury charge. 4 Contemporaneously, we must assume that the

jury does not follow an erroneous instruction in the jury charge if there is some

correct instruction in the charge. I am frankly confused by these rules because

they appear in conflict with each other and because I do not understand how the

jury, who is presumed to follow the instructions in the jury charge, is supposed to

know which instructions to follow and which instructions to ignore. At some point,

common sense must intrude into this alternative universe we have created. In

other contexts, words have meaning. Apparently in the world of jury charges,

they do not. Delivery does not mean delivery. Delivery means possession. The

prosecutor who bore the unenviable burden of explaining to the jury that delivery




      2
         See, e.g., Vasquez v. State, 389 S.W.3d 361, 371–72 (Tex. Crim. App.
2012).
      3
         See, e.g., Crenshaw v. State, 378 S.W.3d 460, 466–67 (Tex. Crim. App.
2012).
      4
         Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).


                                         2
means possession candidly explained to the jury that the charge made no sense.

As the majority points out,

      In the State’s closing argument, a prosecutor properly told the jury,

      Now, when the court was reading the Court’s Charge to you, some
      of you may have noticed on the verdict form she said delivery of a
      controlled substance. Don’t let that throw you. That’s a quirk of the
      way the statute is worded. It covers delivery or possession with
      intent to deliver. 5

There is not a hint of actual delivery anywhere in the record. Appellant was not

accused of delivery of a controlled substance. He was accused in the indictment

only of possession and possession with intent to deliver. Yet the jurors were

instructed that they could convict only of possession or of delivery. Possession

with intent to deliver was not an option, although that is what Appellant was

accused of in the indictment.    The jurors were allowed to convict only of an

offense for which Appellant was not indicted if they found any intent to deliver the

controlled substance.

      In Almanza, the jurors were instructed to convict Almanza of aggravated

rape whether they found him guilty of “plain rape” or aggravated rape.         The

objection that Almanza was not accused of aggravated rape was held to be no

objection to the jury charge. 6 Now we have created new fictions:         a jury is


      5
       Majority Op. at 8, n.8.
      6
      See Almanza v. State, 686 S.W.2d 805, 807 (Tex. Crim. App. 1986), cert.
denied, 481 U.S. 1019 (1987) (Almanza III); Almanza v. State, 696 S.W.2d 282,
283–85 & n.1 (Tex. App.—Fort Worth 1985) (Almanza II), aff’d, Almanza III.


                                         3
presumed to follow the instructions in a jury charge unless the instruction is

incorrect. If there is an incorrect instruction and a correct instruction, the jury is

presumed to know which is correct and to ignore the incorrect instruction.

      To quote Judge Sam Houston Clinton,

      During your deliberations . . . is the time as well to talk of many
      things:

      Of shoes—and ships—and sealing wax—

      Of cabbages—and kings—

      And why the sea is boiling hot—

      And whether pigs have wings. 7




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: May 9, 2013




      7
      Cane v. State, 698 S.W.2d 138, 141 (Tex. Crim. App. 1985) (quoting
Lewis Carroll, Through the Looking-Glass, Ch. 4, quoting the Walrus).


                                          4
