             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO.AP-75,352


                    CHRISTOPHER ANTHONY YOUNG, Appellant

                                              v.

                                 THE STATE OF TEXAS

                             ON DIRECT APPEAL
           FROM CAUSE NO. 2005-CR-1183 IN THE 187TH DISTRICT COURT
                            FROM BEXAR COUNTY



       C OCHRAN, J., filed a concurring opinion.

                                         OPINION

       I join in the Court’s resolution of appellant’s fifteenth point of error concerning the

punishment charge. Although the trial judge accidentally omitted a portion of the statutory

language related to the mitigation issue, this record does not support a finding that appellant

“has suffered actual, rather than merely theoretical, harm from jury instruction error.” 1



       1
       Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008) (quoting Ngo v. State,
175 S.W.3d 738, 750 (Tex. Crim. App. 2005)).
                                                     Young       Concurring Opinion       Page 2

Furthermore, because appellant explicitly stated that he had “no objection” to the jury charge,

he cannot obtain a reversal of his conviction unless the trial record shows that he suffered

“egregious” harm because of that missing instruction. Thus, we must affirm unless the

record shows that appellant was denied the right to have each juror consider different

mitigating evidence in reaching a unanimous verdict that no mitigating circumstance or

combination of circumstances called for a life sentence rather than one of death.2

       Although appellant raises the possibility of theoretical harm, the “possibility” or

“conceivability” of harm is not the “actuality” of egregious harm.3 This is a high and

difficult standard which must be borne out by the trial record.4            The present record

demonstrates that it is most unlikely that these jurors were misled or confused by the trial

court’s failure to include the instruction that they “need not agree on what particular evidence

supports an affirmative finding” on the mitigation issue.

       When deciding that a defendant has suffered “egregious” harm because of a faulty or

missing jury instruction, we have generally found such harm in only two situations:

       1)       The error is so plain and so obviously detrimental to the defendant and his
                right to a fair trial, that an objectively reasonable person would agree that such
                an error, by itself, deprives the defendant of a fair trial;5 or


       2
           See Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005).
       3
           See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
       4
           See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).
       5
         See Almanza, 686 S.W.2d at 171 (discussing history of “blatant error fundamental
in nature”). We have very rarely found instructional errors of that enormity. For example,
                                                   Young       Concurring Opinion      Page 3


       2)       The error was compounded by other mistakes or missteps by the trial judge,
                prosecutor, or defense that magnified the instructional error.6

       Neither the State nor the defendant carries a burden of persuasion on the question of

harm.7 As noted by Professors Dix and Dawson, “an appellate court finding fundamental

error in the charge under Almanza should affirm unless it can say–possibly “with



“[i]f there is a total omission of the instruction on reasonable doubt, such error defies
meaningful analysis by harmless-error standards. However, if the jury is given a partial or
substantially correct charge on reasonable doubt, then any error therein is subject to” a harm
analysis, which would occur under the Almanza standards. State v. Toney, 979 S.W.2d 642,
644-45 (Tex. Crim. App. 1998); compare Harris v. State, 522 S.W.2d 199, 202 (Tex. Crim.
App. 1975) (fundamental error when jury charge had no application paragraph at all;
“Fundamental error is presented where error in the charge goes to the very basis of the case
so that the charge fails to state and apply the law under which the accused is prosecuted.”).
Most “obvious” or even “fundamental” errors are found not to cause “egregious harm.” See,
e.g., DeBlanc v. State, 799 S.W.2d 701, 710-11 (Tex. Crim. App. 1990) (failure to instruct
jury that witness was an accomplice as a matter of law did not cause “egregious” harm
because only an “unreasonable jury” would conclude that witness was not an accomplice).
As the Supreme Court has recently reiterated, even a jury instruction “‘that omits an element
of the offense does not necessarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.’” Washington v. Recuenco, 548 U.S.
212, 219 (2006) (quoting Neder v. United States, 527 U.S. 1, 9 (1999)).
       6
         See, e.g., Ngo, 175 S.W.3d at 750-52 (omission of unanimity instruction caused
egregious harm when prosecutor and judge both misstated law concerning unanimity on
multiple occasions during trial); see also id. 175 S.W.3d at 753 (Womack, J., concurring)
(“The charge in this case also was surrounded by errors, as the court’s opinion points out: the
prosecutor's incorrect statement in voir dire that the law does not require a unanimous
verdict, the trial court’s making a statement to the same effect in voir dire, and the
prosecutor's reiteration of the wrong law in argument”; thus, “by failing to cure the
cumulative effect of a series of missteps, the courts’ charges contained the ultimate step that
make ‘it appear[ ] from the record that the defendant has not had a fair an impartial trial’
within the meaning of Article 36.19.”).
       7
           Warner, 245 S.W.3d at 464.
                                                      Young      Concurring Opinion       Page 4

confidence”–that the error resulted in harm.” 8 And not just harm, but “egregious” harm

when, as in this case, the appellant did not object to the jury charge.

       In analyzing the record for “egregious harm,” we consider the following four factors:

       (1)        the charge itself;

       (2)        the state of the evidence including contested issues and the weight of the
                  probative evidence;

       (3)        arguments of counsel; and

       (4)        any other relevant information revealed by the record of the trial as a whole.9


1.     The Jury Charge.

       First, we look at the charge itself. In this case, the punishment charge omitted one

sentence of a state law instruction to the jury in a capital sentencing hearing.10 That omitted

sentence was: “The jury need not agree on what particular evidence supports an affirmative

finding on the mitigation issue.” 11 Appellant relies upon Mills v. Maryland,12 in which the




       8
       43A G EORGE E. D IX & R OBERT O. D AWSON, T EXAS P RACTICE: C RIMINAL P RACTICE
AND P ROCEDURE, § 42.241 at 365 (2d ed. 2001).

       9
           Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).
       10
           See T EX. C ODE C RIM. P ROC. art. 37.071, §2(f) (“The court shall charge the jury that
in answering the [mitigation] issue submitted under subsection (e) of this article, the jury:
. . . (3) need not agree on what particular evidence supports an affirmative finding on the
issue;”).
       11
            Id.
       12
            486 U.S. 367 (1988).
                                                    Young       Concurring Opinion       Page 5

Supreme Court overturned a death sentence because of jury instructions that created a

substantial probability that jurors thought they were precluded from considering any

mitigating evidence unless they unanimously agreed on the existence of one or more

particular mitigating circumstances. In Mills, the jury was instructed to first unanimously

determine whether certain specific aggravating and mitigating factors existed, marking “yes”

or “no” beside each listed factor, and then to weigh those specific factors in determining

whether to assess death. The Supreme Court found a substantial probability that jurors would

believe that they were prohibited from considering any mitigating factors unless all twelve

jurors agreed on the existence on the same specific factors. That erroneous belief would

result in a virtually automatic death sentence even where the jurors may otherwise have

concluded that death was inappropriate.13

       The situation is very different here. These instructions did not tell the jurors that they

must agree on any specific mitigating facts. Indeed, before Mills was decided, the statutorily

mandated jury instructions under article 37.071 did not include any instruction concerning

agreement or disagreement about specific mitigating circumstances.14 Nonetheless, this

Court held that jury instructions given under former article 37.071–without any instructions




       13
            Id. at 373-74.
       14
           See Hughes v. State, 897 S.W.2d 285, 300-01 & n.21 (Tex. Crim. App. 1993)
(noting that the interpretive commentary to the legislative changes to art. 37.071(2)(d)(3),
(2)(f)(3), were made in 1991 to “foreclose the potential for challenges” based on Mills, but
stating that the statute prior to the revision did not violate Mills).
                                                   Young       Concurring Opinion       Page 6

that the jury need not agree on specific mitigation facts–did not violate Mills.15 The addition

of this statutory instruction was a prophylactic measure to avert any potential appellate

challenges, not to repair an otherwise unconstitutional or ambiguous special issue.16 If it was

not error to omit such an instruction before the legislative amendment, the omission of such

an instruction after the legislative amendment did not suddenly cause “egregious harm.” It

may be statutory error, but it is not necessarily harmful.

       In this case, for example, the jurors were instructed that, before they could answer

“no” to the mitigation question, each and every one of them had to agree that there were no

mitigating facts or circumstances that called for a sentence of life imprisonment rather than

death. If even one juror believed that there was some mitigating fact, any mitigating fact,

that called for a life sentence, that juror could not join a verdict in which the jury

“unanimously found” that there was no mitigating circumstance.17 Appellant’s jury did

return a unanimous verdict that there was no such mitigating circumstance. Therefore, it

would be illogical to speculate that perhaps one or more of those jurors did find a mitigating

circumstance but was so confused about the unanimity requirement that he thought that

unless every juror agreed upon the same mitigating fact, his vote did not count. So he



       15
        Rousseau v. State, 855 S.W.2d 666, 687 n.26 (Tex. Crim. App. 1993) (rejecting
defendant’s claim that former art. 37.071 misled jurors by creating impression that jury must
be unanimous in finding the existence of specific mitigating circumstances).
       16
            Hughes, 897 S.W.2d at 300-01.
       17
       T EX. C ODE C RIM. P ROC. art. 37.071, § 3(e)(1), (f)(2).
                                                      Young        Concurring Opinion        Page 7

changed his vote. Such reasoning assumes that jurors would violate their oaths. We must,

however, “presume[ ] that jurors, conscious of the gravity of their tasks, attend closely the

particular language of the trial court’s instructions in criminal cases and strive to understand,

make sense of, and follow the instructions given them.” 18

       Other states have, like Texas, held that the omission of a “nonunanimity” instruction

does not confuse or mislead the jury in a death penalty trial.19 For example, in People v.


       18
          Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985); see also Parker v. Randolph,
442 U.S. 62, 75 n. 7 (1979) (“The ‘rule’–indeed, the premise upon which the system of jury trials
function under the American judicial system–is that juries can be trusted to follow the trial court's
instructions.”).
       19
          See, e.g., Davis v. State, 684 So.2d 643, 664-65 (Miss. 1996) (rejecting defendant’s
claim that, because the jury was never instructed that mitigating circumstances were to be
found individually and not unanimously, reasonable jurors might have misunderstood the
instructions and thought that they were required to be unanimous about any specific
mitigating circumstance); Stiles v. State, 829 P.2d 984, 997 (Okla. Crim. App. 1992)
(rejecting defendant’s claim that trial court erred in failing to inform jury that unanimous
agreement upon the mitigating circumstances was not required before the jury could consider
them; “Because the instructions and verdict forms in the present case did not require
unanimity regarding mitigating circumstances, nor could they reasonably have been
interpreted to require such, we hold that the jury was not precluded from considering any of
the mitigating evidence proffered by appellant.”); Nika v. State, 198 P.3d 839, 856 (Nev.
2008) (rejecting defendant’s claim of ineffective assistance of counsel when his attorney
failed to request an instruction that the jury did not have to agree unanimously on the
existence of specific mitigating circumstances; “no instruction placed constraints on the
jury’s ability to find mitigating circumstances”); Commonwealth v. Frey, 554 A.2d 27, 30-31
(Pa. 1989) (rejecting claim that jurors might have believed that they were required to
unanimously find a specific mitigating fact or facts because they were not given a specific
jury instruction concerning nonunanimity; “individual jurors were free to weigh whatever
mitigating circumstances they perceived, regardless of whether other jurors agreed that those
circumstances were established by the evidence. The perceptions of even one juror, alone,
with regard to mitigating circumstances, would be sufficient to deny the unanimity required
for a sentence of death.”); Hackett v. Price, 381 F.3d 281, 301 (3d Cir. 2004) finding no
reasonable likelihood that jurors could have understood the instructions to require unanimity
                                                    Young       Concurring Opinion      Page 8

Hope,20 the special mitigation issue read, “If you unanimously find from your consideration

of all the evidence that there are no mitigating factors sufficient to preclude consideration of

a death sentence, then you should sign the verdict requiring the court to sentence the

defendant to death.” 21 The defendant claimed that the trial judge erred when he refused to

give an instruction “on the nonunanimity requirement for mitigating factors.” The Illinois

Supreme Court disagreed, stating that the instructions did not “convey the impression that

unanimity was required before a mitigating factor could be considered in the balance.” 22

After all, “a ‘sentencing jury is required to unanimously determine that mitigating factors

sufficient to preclude the death penalty do not exist before that penalty can be imposed.’” 23

Thus, the belief by just one juror that some mitigating circumstance exists is sufficient to

prevent a unanimous rejection of mitigation.24

       Thus, looking at the jury instructions as a whole, it would be illogical to suppose that

there is “a reasonable likelihood” that the jury understood and applied the mitigation issue



in finding a specific mitigating fact; “When the jury found unanimously that there was no
mitigating circumstance, it left no room to speculate that perhaps one juror was confused
about unanimity requirements and therefore precluded from considering mitigating
evidence.”).
       20
            658 N.E.2d 391, 410-11 (Ill. 1995).
       21
            Id. at 411.
       22
            Id.
       23
            Id. (emphasis in original; quoting People v. Ramey, 604 N.E.2d 275 (Ill. 1992)).
       24
            Id.
                                                    Young       Concurring Opinion       Page 9

in a way that prevented even one juror’s consideration of any and all mitigating facts,

regardless of whether any other juror considered that same fact mitigating.25

2.     The Evidence.

       Second, we look at the state of the evidence and its weight. Although the evidence

concerning mitigation was not “open and shut,” it was not overwhelming either. Appellant,

although unmarried, was the father of a young child. His own father had been murdered

when he was young and, as a result, he had always suffered from depression and sometimes

had thoughts of suicide. His sister was raped by a stranger and later impregnated by

appellant’s stepfather. He was placed on probation as a juvenile because he “became

involved with negative peer groups” and started abusing drugs and alcohol. These drugs

made him prone to violence and to lose impulse control. Nonetheless, he had worked in an

auto detailing shop since his teen years. He was twenty-one at the time he robbed and

murdered Hash Patel, the owner of a mini-mart store and a man whom appellant knew.

       On the other hand, the State presented evidence of appellant’s lengthy criminal

history. As a juvenile, appellant was twice adjudicated for assaulting his mother. He was

instructed to attend anger management programs, but did not complete them. As an adult,


       25
          See Boyde v. California, 494 U.S. 370, 380-81 (1990) (assessing whether there is
a “reasonable likelihood” that jurors might have been mislead or confused by an allegedly
ambiguous jury instruction on mitigation evidence and noting that “[j]urors do not sit in
solitary isolation booths parsing instructions for subtle shades of meaning in the same way
that lawyers might. Difference among them in interpretation of instructions may be thrashed
out in the deliberative process, with commonsense understanding of the instructions in the
light of all that has taken place at the trial likely to prevail over technical hairsplitting.”).
                                                   Young       Concurring Opinion       Page 10

he was convicted of evading arrest and possession of marijuana stemming from an incident

in which he was driving a stolen car and led police on a lengthy car chase.             He was

convicted of assaulting his girlfriend–he dragged her down the stairs, repeatedly punched her,

bit her, and threw her in a ditch–when she was eight months pregnant with his baby.

Appellant later told her that he had shot at a person named “C-Smalls” with a .45 caliber

semi-automatic.

       The day before robbing and killing Hash Patel, appellant again punched his girlfriend

and told her that he was going to kill her because she had told him that she did not want to

see him any more. Immediately before committing the capital murder, appellant forced his

way into Daphane Edwards’s apartment at gunpoint, made her perform oral sex on him twice,

and then stole her car after kissing each of her young children–who had seen the sexual

assault upon their mother–on the cheek. After murdering Mr. Patel, appellant picked up a

prostitute and the two of them were in the bedroom of a “crack house,” smoking crack

cocaine when the police arrived.

       Given the extent of the evidence of aggravating circumstances, and the relative

paucity of mitigating circumstances, it is not particularly surprising that the jury returned its

punishment verdict in less than four hours. It did not send out any questions about the jury

instructions. All twelve jurors agreed that there were no mitigating circumstances sufficient

to call for a life sentence. Appellant makes no persuasive argument that there is a reasonable

likelihood that, based on this evidence, one or more of the jurors had found a mitigating
                                                  Young       Concurring Opinion       Page 11

circumstance but was somehow dissuaded from registering his verdict because he

erroneously believed that every juror had to agree on the same specific mitigating fact.

3.     The Arguments of Counsel.

       Third, we look to the arguments of counsel. Unlike the situation in Ngo, and other

cases in which the attorneys or trial judge compounded the jury instruction error by making

additional incorrect statements,26 no one in this case erroneously suggested that the jurors had


       26
           Ngo v. State, 175 S.W.3d 738, 750-52 (Tex. Crim. App. 2005); see also Stuhler v.
State, 218 S.W.3d 706, 720 & n.44 (Tex. Crim. App. 2007) (finding egregious harm in jury
charge when two separate offenses were submitted in disjunctive form to jury–one of which
was not supported by the evidence–because, “[g]iven the emphasis in the State's evidence
and in its final argument, at least some of the jurors might have convicted the appellant under
the belief that she intentionally or knowingly caused an injury that the evidence does not
support.”); Dolkart v. State, 197 S.W.3d 887, 894 (Tex. App.—Dallas 2006, pet. ref’d) (“As
in Ngo, the State told the jury in closing argument that it did not have to agree whether
appellant committed assault by threat or bodily injury assault. Further, the evidence in this
case was contested. Appellant testified and denied the offenses. She claimed she did not
intend to hit Thomas but rather it was an accident. Some jurors could have believed appellant
and determined that she did not intend to threaten or injure Thomas, but concluded her
conduct in driving so close to Thomas was reckless and resulted in his injury. Other jurors
could have disbelieved appellant and determined that she intentionally and knowingly
followed Thomas too closely to threaten him, resulting only in his fear of imminent bodily
injury. . . . Finally, the record reflects the jury had some confusion regarding the unanimity
requirement as evidenced by the note it sent out asking, “Does an acquittal of a charge need
to be unanimous in order to proceed to a lesser (next charge)?”); Palmer v. State, 222 S.W.
3d 92, 96 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (finding egregious harm when
jury charge erroneously required jury to find the victim’s prior rape allegation false beyond
a reasonable doubt before it could use that evidence to impeach her credibility; prosecutor
repeatedly stressed the erroneous instruction and error went to very basis of hotly disputed
facts); Guevara v. State, 191 S.W.3d 203, 208 (Tex. App.—San Antonio 2005, pet. ref’d)
(erroneous jury instructions caused egregious harm when jury was told it could convict
defendant if he did not make a reasonable effort to prevent her murder and the prosecutor
argued that jury could and should convict him on this non-existent legal theory).
                                                   Young        Concurring Opinion       Page 12

to be unanimous in finding a particular mitigating circumstance. Instead, they repeated what

they had explained to the jury during voir dire: “Mitigation, as we told you, you’ll know it

when you see it. You will believe it or you won’t.”

4.     Other Relevant Information.

       Fourth, we look to other relevant information in the record. Here, both the trial judge

and the attorneys repeatedly explained the concept of mitigation and the importance of each

juror deciding what, if anything, he should find mitigating during voir dire. The trial judge

explained:

       There’s only two possible punishments. Okay?
               Once again, you’re to consider, in answering the questions, the evidence
       that you hear, the circumstances of the offense–you know, what happened, is
       it bad, is it not as bad as you think–the criminal history, the good history of he
       defendant, mitigating circumstance, the background, the mental background
       of the defendant, all kinds of things. You’re to consider it all. If it’s given to
       you, you’re to consider it. You don’t disregard anything. You don’t have to
       answer it a certain way, no matter what the evidence is for you. You’re
       entitled to rule on it as you see fit. You can give it what weight you want
       yourself. But you’re to consider it and listen to it all, and give it whatever
       weight you want.
               In other words, if you think this is a mitigating circumstance, that’s fine.
       If you think it’s not, that’s also fine. It’s up to you. It’s your decision and your
       decision alone, the twelve of you. But you’re to listen to it all and take it all
       into account, and disregard what you like, take into account what you don’t
       like, or do like, and go from there.

Similarly, the attorneys repeatedly told the veniremen that “every juror is to look individually

and decide for themselves, you know, whether or not . . . the evidence is mitigating.” They

emphasized over and over that each juror should individually decide whether a specific fact

was or was not mitigating. “It’s simply up–in your heart, do you believe there’s something
                                                  Young       Concurring Opinion       Page 13

about him that sufficiently mitigates [and calls for a] sentence of life rather than death.” And

“[s]ome people might think one thing is mitigating, Somebody might think, no, that’s not.”

Given the extent to which the jurors were told that each one of them might find a particular

fact mitigating while others did not, it defies logic to conclude that they suddenly forgot all

of those earlier discussions during their deliberations. It is unreasonable to conclude that,

merely because the nonunanimity of mitigating facts wasn’t explicitly repeated once again

in the jury instructions, the jurors were likely to have thought that they could not find a

particular fact mitigating unless all twelve of them agreed on that particular fact. As Yogi

Berra would say, “that is making too many wrong mistakes” about the jurors’ common sense.

       Therefore, although the trial court erred in omitting the statutory jury instruction

reminding the jurors that they need not agree on what particular evidence supports an

affirmative answer to the mitigation issue, this record does not show that appellant suffered

any actual harm–much less “egregious harm”–as a result of that omission.

       I join the opinion of the Court.

Filed: April 22, 2009

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