                                       IN THE
                               TENTH COURT OF APPEALS

                                        No. 10-17-00343-CR

ERNEST BROWN,
                                                                         Appellant
    v.

THE STATE OF TEXAS,
                                                                         Appellee


                                 From the 19th District Court
                                  McLennan County, Texas
                                 Trial Court No. 2016-1506-C1


                                 DISSENTING OPINION

         There are few recognized structural errors in Texas criminal jurisprudence. For all

of our sakes, I pray that the right to a jury trial is still one of them. And the right to a jury

trial is pointless if the trial court can instruct a verdict on an element of the offense. In

this case the jury was so instructed. It was error to do so. It is structural error. Brown’s

conviction should be reversed and the case remanded to the trial court for a new trial.1


1
 I find the discussion of the issue in Martin to be dicta. I previously thought I should follow the dicta of
the Court of Criminal Appeals, but they disabused me of that notion. See Ford v. State, 313 S.W.3d 434 (Tex.
App.—Waco 2010), rev’d, 334 S.W.3d 230, 232 (Tex. Crim. App. 2011). The issue in Martin was not the
question of the propriety of giving an instructed verdict on an element of the offense in the jury charge. It
        If I am wrong in the foregoing conclusion, then there is absolutely no relevance to

any of the evidence about the prior convictions and any reference thereto at any stage of

the proceeding would be improper and clearly calculated to harm the defendant. There

is not even any balancing to be done under Rule 403 because the prior convictions are

simply not relevant to any disputed issue in the trial. If, because of the stipulation, and

within the extended dicta in Martin, the jury can be instructed to find the element against

the defendant, there should be no mention of the priors during the trial. The Court of

Criminal Appeals has clearly held to the contrary, but that is upon the basis that the State

has to prove the prior convictions as an element of the offense. Hollen v. State, 117 S.W.3d

798 (Tex. Crim. App. 2003). If Brown’s first issue is overruled, the entire foundation of

the Court of Criminal Appeals’ rational regarding discussion, admissibility, and

argument about the prior convictions is built on shifting sand and must collapse. I do

not see how, rationally, the State can have it both ways by having a stipulation of evidence

of an element and therefore have an instructed verdict in the charge on that element AND

also have the ability to beat the defendant about the head and shoulders with the two

priors under the argument that they have the burden to prove it as an element of the

offense. Surely it cannot be both.

        While I fear the “way-guilty-rule” will overwhelm the distinctions that I believe

are necessary if we are going to try the person for the offense and not the character of the



was an issue of whether it was error to omit an element of the offense from the charge. It was held that the
omission of an element was error. The Court went on to hold that the Almanza charge error analysis applied
and that the unobjected-to charge error was not egregiously harmful. Even if the error is not structural, in
this case, it was objected to.

Brown v. State                                                                                       Page 2
person, I respectfully dissent.



                                        TOM GRAY
                                        Chief Justice

Dissenting opinion issued and filed October 10, 2018




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