                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-271-CR


SEAN KRESSE                                                         APPELLANT

                                            V.

THE STATE OF TEXAS                                                        STATE

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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. Introduction

      In six points, Appellant Sean Kresse complains that the trial court erred by

admitting inadmissible hearsay testimony and by including an erroneous instruction

on voluntary intoxication in its punishment charge to the jury. W e reverse and

remand to the trial court for a new punishment trial.

                        II. Factual and Procedural History



      1
           See Tex. R. App. P. 47.4.
       In September 2007, Kresse and Lorena Sandoval were dating and living

together. After work on September 14, Kresse drank a few beers at his place of

employment and then walked to a friend’s house, where he drank some more.

Kresse then went home and strangled Lorena to death. On May 12, 2009, Kresse

pleaded guilty to Lorena’s murder and requested that a jury assess punishment.

The jury assessed punishment at fifty years’ confinement, and the trial court

sentenced Kresse accordingly. This appeal followed.

                        III. Voluntary Intoxication Instruction

       In Kresse’s third and fourth points, he asserts that the trial court erred by

including a voluntary intoxication instruction in the jury charge and that this error

resulted in some harm to him. Over Kresse’s objection, the trial court sua sponte

instructed the jury that “[v]oluntary intoxication does not constitute a defense to the

commission of a crime,” and it included penal code section 8.04’s definition of

intoxication in its punishment charge to the jury. 2 Immediately following the voluntary

intoxication instruction and the definition of “intoxication,” the jury charge read: “It

now becomes your duty under the law to determine the punishment which should be

assessed against this defendant.” In his fifth and sixth points, Kresse argues that this

instruction constituted an impermissible comment on the weight of the evidence and

that this resulted in harm to his right to a fair trial.

       2
        Section 8.04 defines intoxication as a “disturbance of mental or physical
capacity resulting from the introduction of any substance into the body.” Tex. Penal
Code Ann. § 8.04(d) (Vernon 2003).

                                              2
A. Standard of Review

      Appellate review of error in a jury charge involves a two-step process. Abdnor

v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287

S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error

occurred. If so, we must then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S.W .2d at 731–32. Error in the charge, if

timely objected to in the trial court, requires reversal if the error was “calculated to

injure the rights of [the] defendant,” which means no more than that there must be

some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19

(Vernon 2006); Abdnor, 871 S.W .2d at 731–32; Almanza v. State, 686 S.W .2d 157,

171 (Tex. Crim. App. 1985) (op. on reh’g); see also Barrios v. State, 283 S.W .3d

348, 350 (Tex. Crim. App. 2009) (“A claim of jury-charge error is reviewed using the

procedure set out in Almanza.”). In other words, a properly preserved error will

require reversal as long as the error is not harmless. Almanza, 686 S.W .2d at 171.

In making this determination, “the actual degree of harm must be assayed in light of

the entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.; see also Ovalle v.

State, 13 S.W .3d 774, 786 (Tex. Crim. App. 2000).

B. Analysis




                                           3
      The State concedes that the inclusion of the voluntary intoxication instruction

during the punishment stage of the trial was erroneous because, if applicable, it is

to be given during the guilt-innocence stage of trial, not punishment. See Taylor v.

State, 885 S.W .2d 154, 156 (Tex. Crim. App. 1994); see also Sakil, 287 S.W .3d at

26 n.6. However, it argues that no harm occurred because

      the jury would not have relied on the instruction. The instruction, by its
      clear language, applies to a defense rather than a mitigating factor in
      punishment. Since [Kresse] pleaded guilty and judicially confessed to
      the offense, the instruction had no bearing on the jury’s function to
      assess punishment. Further, neither the State nor [Kresse] argued in
      closing that [Kresse’s] voluntary intoxication should play any role
      whatsoever in assessing punishment. The result of the erroneous
      instruction here was no different than the result of an erroneous Section
      8.04 instruction in the guilt/innocence phase of trial. . . . [T]he Section
      8.04 instruction in this case was superfluous, innocuous, and resulted
      in no harm to [Kresse].

      The State attempts to bolster its argument by referring us to Olivarez v. State,

Nos. 05-04-00862-CR, 05-04-00863-CR, 2005 W L 1163973 (Tex. App.—Dallas May

18, 2005, pet. ref’d) (not designated for publication), and Ross v. State, 133 S.W .3d

618 (Tex. Crim. App. 2004).        However, both are distinguishable: 3       Olivarez

concerned an unobjected-to voluntary intoxication instruction given during the guilt-

innocence stage of trial, not during the punishment phase. See 2005 W L 1163973,

at *3. And Ross involved an erroneous instruction on parole, which the court noted

was corrected by Ross’s counsel during closing argument. See 133 S.W .3d at



      3
         Neither the State nor Kresse directs us to a case concerning an erroneous
inclusion of an 8.04(a) instruction at punishment, and this court has not found one.

                                          4
623–24 (concluding that there was not a reasonable likelihood that the good conduct

time language in the parole charge misled the jury into believing that a life-sentenced

appellant would be released from prison in less than forty years).

      Kresse responds that the testimony during his trial was replete with evidence

of the history of his intoxication, its effect on his actions, and his intoxication at the

time of the murder, and that the State emphasized his inebriation in both its opening

statement and its closing argument. Specifically, he points out that the State opened

by stating that “[t]he recurring theme you’re going to hear is that Lorena did not like

it when Sean drank because he became a different person. He became angry. He

became combative,” and closed with accusing Kresse of being an “alcohol-fueled

ticking time bomb” who “gets angry [and] wants to fight.” Therefore, Kresse argues

that the inclusion of the voluntary intoxication instruction in the punishment charge

drew attention to one area of evidence and enhanced the State’s argument for

punishment.

      Turning to the Almanza factors, we first observe that the negative reference

to intoxication in the charge is the only factual evidentiary matter in the entire charge.

Thus, the intoxication instruction, in its proximate location to the trial court’s

instruction to the jury to determine punishment, was likely to draw the jury’s attention

to Kresse’s history of drinking prior to the murder. Further, Kresse’s history of

drinking was introduced repeatedly throughout the trial and emphasized by the State

during its opening statement and closing argument. Bearing in mind that we are


                                            5
required to reverse if we determine the presence of “any harm, regardless of degree,

which results from a preserved charging error,” we hold that the instruction

incorrectly emphasized a portion of the State’s case and drew particular attention to

one aspect of it. See Arline v. State, 721 S.W .2d 348, 351 (Tex. Crim. App. 1986)

(“Cases involving preserved charging error will be affirmed only if no harm has

occurred.”). Accordingly, we sustain Kresse’s third and fourth points. 4

                                      IV. Hearsay

          In Kresse’s first two points, he complains that the trial court abused its

discretion by admitting Lorena’s friend Ruth Zavala’s testimony containing

inadmissible hearsay in violation of rule of evidence 802 and that this decision

adversely affected his right to a fair trial. Although Kresse’s third and fourth issues

are dispositive, we address Kresse’s complaint here in the interest of judicial

economy because this is a challenge likely to be raised in Kresse’s new punishment

trial. See Davis v. State, 144 S.W .3d 192, 201 (Tex. App.—Fort W orth 2004, pet.

ref’d).

          During the punishment trial, Kresse objected that portions of Ruth Zavala’s

testimony constituted hearsay, and the trial court held a hearing outside the jury’s




          4
          Because we sustain Kresse’s third and fourth points, we need not address
his fifth and sixth points with regard to whether the trial court improperly commented
on the weight of the evidence by including the voluntary intoxication instruction in the
punishment charge. See Tex. R. App. P. 47.1.

                                           6
presence to determine the testimony’s admissibility. 5       The trial court overruled

Kresse’s objection and allowed Zavala to testify about events Lorena had told her

about.

         “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Tex. R. Evid. 801(d). W e observe that the State’s argument at trial that

Zavala’s testimony falls under the hearsay exception found in rule 804(a)(4)—that

is, that the declarant is unavailable—is misguided. Rule 804(a)(4) states that a

declarant is “unavailable” if she is unable to be present or to testify at the hearing

because of death. Tex. R. Evid. 804(a)(4). This is not a hearsay exception. Rule

804(a) only provides guidance as to who is an “unavailable witness.” Id. It is Rule

804(b) that sets out the exceptions applicable to testimony by a declarant who is

unavailable as a witness—these exceptions are: (1) former testimony, (2) dying

declarations, and (3) statements of personal or family history. See Tex. R. Evid.

804(b)(1)–(3). None of these exceptions apply here. 6 Thus, the statements are not

admissible under rule 804.

                                   V. Conclusion


         5
       Kresse also objected to Zavala’s testimony based on the Confrontation
Clause, but he does not raise that as a point in this appeal.
         6
        Because of our disposition of this case, and because the State relied
primarily on rule 804(a)(4) and did not fully articulate any other bases for
admissibility at trial, we will not address whether these statements are admissible
under any other exceptions. See Tex. R. App. P. 47.1.

                                           7
      Having sustained Kresse’s dispositive issues, we reverse the trial court’s

judgment, and we remand this case for a new trial on punishment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 22, 2010




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