                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00159-CR
         ______________________________


            JESSIE JOE PAYAN, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 159th Judicial District Court
               Angelina County, Texas
              Trial Court No. CR-27083




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
        Concurring Opinion by Justice Moseley
                                    MEMORANDUM OPINION

         Jessie Joe Payan was convicted by a jury of four counts of indecency with a child and

sentenced to twelve years' confinement. Payan brings this appeal urging that the trial court erred by

commenting on the weight of the evidence in a jury charge instruction.1 We agree error was

committed, but finding the harm that resulted was not egregious, we affirm the judgment of the trial

court.

I.       Factual and Procedural Background

         Having received reports of a sexual crime by Payan, Detective David Cross of the Lufkin

Police Department requested that Payan come to the police station for an interview. When Payan

arrived, Cross advised him that he was free to leave, was not under arrest, and could stop the

interview. But Cross did not tell Payan that he was recording the interview. When the discussion

was completed, Payan left and was arrested thirteen days later on charges which were the subject of

the interview.

         The State offered the videotaped interview into evidence and, after establishing that Payan

was not told it would be recorded, Payan moved the court to disallow the recording contending that

the failure to notify him that it would be recorded resulted in his making an involuntary statement.

The trial court overruled this objection, but stated that an instruction regarding the voluntariness of



         1
         "[T]he judge shall, before argument begins, deliver to the jury . . . a written charge distinctly
setting forth the law applicable to the case; not expressing any opinion as to the weight of the
evidence . . . ." TEX . CODE CRIM . PROC. ANN . art. 36.14 (Vernon 2007).

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the statement would be submitted to the jury. After the evidence was concluded, the State requested

the court to add to the typical instruction on voluntariness of a statement the following: "The law

does not require that a suspect be informed by a peace officer that his statement is being recorded

electronically." The trial court so instructed the jury.

II.    Preservation of Error

       When the trial court gave Payan an opportunity, Payan did not object to this instruction, but

offered the trial court an entire omnibus proposed charge, consisting of fifteen pages of instructions.

Payan did not call to the court's attention that his proposed charge did not contain the additional

instruction concerning voluntariness of the statement, but explained to the court that it was "basically

the same as the State's except for Paragraph 7." 2 Payan argues that this submission of an entire jury

charge,3 which did not contain the complained-of addition, preserves the alleged error.

       We disagree. This Court has previously held that, when a party fails to object to an

instruction, the submission on an omnibus charge on the entire case, without more, cannot be seen

as a sufficient, specific request pursuant to Article 36.15 of the Texas Code of Criminal Procedure.




       2
         Paragraph 7 of Payan's proposed charge was an instruction that the jury should acquit if it
found the touching to have been accidental or if it was done with no intent to arouse or gratify sexual
desires.
        3
        We further note other problems with Payan's proposed charge—it contained a definition of
"reasonable doubt" that the Texas Court of Criminal Appeals has rejected. Paulson v. State, 28
S.W.3d 570, 573 (Tex. Crim. App. 2000).

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See TEX . CODE CRIM . PROC. ANN . art. 36.15 (Vernon 2007);4 Taylor v. State, 146 S.W.3d 801, 806

(Tex. App.—Texarkana 2004, pet. ref'd) (punishment charge consisting of six pages was not

sufficient to preserve regarding improper parole instruction) (citing Arana v. State, 1 S.W.3d 824

(Tex. App.—Houston [14th Dist.] 1999, pet. ref'd)). Here, not only did Payan fail to object to the

instruction, the further statement to the court that his charge was basically the same as the State's,

except for an issue irrelevant to this discussion, did not apprise the trial court that he was proposing

something different. Accordingly, we find Payan failed to object to the instruction and must

demonstrate that the jury charge error resulted in "egregious harm" to him to warrant a reversal. See

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994).

III.    Jury Charge Error

        In analyzing a jury charge complaint, we first determine (1) whether error exists in the charge

and, then, if charge error is found (2) whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The degree of harm

necessary for reversal depends on whether the defendant raised the objection below. Id. at 743.

When a defendant fails to object, we will not reverse unless the record shows that the defendant

suffered "egregious harm." Id. at 743–44; Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004)




        4
         "The defendant may, by a special requested instruction, call the trial court's attention to error
in the charge, . . . and no other exception or objection to the court's charge shall be necessary to
preserve any error reflected by any special requested instruction which the trial court refuses." See
TEX . CODE CRIM . PROC. ANN . art. 36.15.

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(holding also that affirmative denial of objection is equivalent to failure to object to jury charge

error).

          The additional instruction given that "the law does not require a suspect be informed by a

peace officer that his statement is being recorded electronically" is a correct statement of law.

Article 38.22 no longer contains this requirement. See TEX . CODE CRIM . PROC. ANN . art. 38.22 , § 3

(Vernon 2007); Moore v. State, 882 S.W.2d 844, 846 (Tex. Crim. App. 1994). Further, the evidence

demonstrates that Payan's statement was not taken during a custodial interrogation. But, whether

the statement is a legally correct one is not the issue in this case. Many instructions requested both

by the State and a defendant are correct statements of the law, but are not proper jury instructions.

The Texas Court of Criminal Appeals has explained that even a seemingly neutral instruction may

violate Article 36.14 by singling out a particular piece of evidence for special attention. Rocha v.

State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). In Rocha, the defense requested an instruction on

the voluntariness of a confession that advised the jury that, if the defendant was ill, medicated, or

physically or mentally incapacitated to the extent as to render his or her confession involuntary, the

jury should disregard it. Id. In finding this an improper instruction, the court stated: "Even a

seemingly neutral instruction about a particular type of evidence constitutes an impermissible

comment on the weight of the evidence in violation of Article 36.14 because such an instruction

singles out a particular piece of evidence for special attention." Id. (citing Matamoros v. State, 901

S.W.2d 470 (Tex. Crim. App. 1995)); see also Penry v. State, 903 S.W.2d 715, 748 (Tex. Crim.



                                                  5
App. 1995) (special instruction singling out issue of mental retardation in determining voluntariness

of confession was improper).

       Payan relies on Rocha, but the State made no attempt to explain why its rationale is not

applicable in this case. Indeed, the State's brief fails to even cite Rocha.

       Recently, the Texas Court of Criminal Appeals has reaffirmed that an instruction focusing

on a particular factor that may render a statement involuntary is an impermissible comment on the

weight of the evidence. Gallo v. State, 239 S.W.3d 757, 769 (Tex. Crim. App. 2007). A corollary

of that proposition applies—an instruction that focuses on a particular factor that may render a

statement voluntary is an impermissible comment on the weight of the evidence.

       This instruction focuses on a particular factor (taping did not have to be disclosed to Payan)

that might help persuade the jury the statement was a voluntary one. The State recognized this

instruction was useful in convincing the jury that the statement was a voluntary one when it

specifically referred to this instruction during its argument on voluntariness. The additional

instruction was an erroneous comment on the weight of the evidence.

IV.    Egregious Harm

       Having determined that there was error in the charge, the issue is whether sufficient harm was

caused by the error to require a reversal. See Hutch v. State, 922 S.W.2d 166, 170–71 (Tex. Crim.

App. 1996). The standard to determine whether sufficient harm resulted from the charging error to

require reversal depends on whether the appellant objected. See Olivas v. State, 202 S.W.3d 137,



                                                  6
144 (Tex. Crim. App. 2006) (interpreting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh'g)).

       Because Payan did not object at trial to the error in the court's charge, the issue is whether

the error created such harm that Payan did not have a fair and impartial trial—in short, that

"egregious harm" has occurred. Abdnor, 871 S.W.2d at 731–32; Almanza, 686 S.W.2d at 171; see

TEX . CODE CRIM . PROC. ANN . art. 36.19 (Vernon 2006); Hutch, 922 S.W.2d at 171.

       To determine "egregious harm," a reviewing court examines the entire jury charge, the state

of the evidence, including the contested issues and weight of the probative evidence, the arguments

of counsel, and any other relevant information revealed by the record of the trial as a whole. The

appellant must have suffered actual, rather than theoretical, harm. Errors that result in egregious

harm are described as those that affect the very basis of the case, deprive the defendant of a valuable

right, or vitally affect a defensive theory. Warner v. State, Nos. PD-1680-05, PD-1681-05, 2008 WL

375503, at *2 (Tex. Crim. App. Feb. 13, 2008); see also Hutch, 922 S.W.2d at 171.

       The trial evidence included not only Payan's inculpatory statements, but also the testimony

of the two minors, who detailed the sexual crimes, and an outcry witness. There is no claim that the

evidence is insufficient to support the verdict of the jury.

       Absent the instruction in question, the charge is unexceptional. The application paragraph

properly instructs the jury concerning the voluntariness of Payan's statement; it contains no other

erroneous or questionable sections and correctly thereafter instructs the jury in applying the criminal



                                                  7
statute to the allegations in this case. Compare Hess v. State, 224 S.W.3d 511, 515 (Tex. App.—Fort

Worth 2007, pet. ref'd). The State did briefly refer to this improper instruction during its jury

argument.

        Further, there is no other relevant information that indicates Payan suffered egregious harm.

Payan argues that his statement played a major role in the jury convicting him. But, it is not the

admission of Payan's statement that is at issue, as no challenge is made to its admissibility, but to the

additional instruction. There is no evidence to show how Payan's lack of knowledge of the taping

affected his decision to speak to the officer. After examining the evidence, the jury charge,

arguments of counsel, and relevant information, it does not appear that the trial court's improper

emphasis of this particular evidence affected the very basis of the case, deprived Payan of a valuable

right, or vitally affected a defensive theory. Egregious harm has not been shown.

        We affirm the judgment of the trial court.



                                                        Jack Carter
                                                        Justice


                                     CONCURRING OPINION

        During trial, Payan had made it plain that he (erroneously) believed that if a person has not

been previously informed by law enforcement officers that an interview with them is being taped,

that lack of forewarning renders the resulting recording inadmissible in the same fashion as an



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involuntary statement. This issue was the subject of a hearing outside the presence of the jury. At

the time the trial court overruled this objection, it noted that Payan's defense counsel could still argue

the voluntariness of this statement to the jury.

        Because Payan had strenuously advanced this argument during trial, the trial court could

reasonably assume that there was a substantial likelihood that Payan would raise this same

contention in closing arguments to the jury. (One might assume that this would, indeed, have been

done if the trial court had not included an instruction to the jury that a warning to an interviewee that

a recording was being made was not a necessary predicate to the admissibility of the recording.) Had

that argument been made, the jury could easily have been confused as to appropriate law concerning

the voluntariness of the statements contained in the recording.

        Article 36.14 of the Texas Code of Criminal Procedure dictates that the trial judge is to

deliver the jury a "a written charge distinctly setting forth the law applicable to the case." TEX . CODE

CRIM . PROC. ANN . art. 36.14 (Vernon 2007). Trial judges are not automatons; as such, they are not

forced to rely solely on printed forms for their instructions to a jury. No form book is going to

include paragraphs or instructions pertaining to every possible circumstance in which the application

of law to the facts of the case needed to be explained to a jury.

        The safer course for a trial court is to remain along the well-traveled path in jury charges

because precipices of error yawn on the sides of the regular paths which are trod. However, it is also

necessary to provide a jury with the information about the law which it needs to arrive at a proper



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conclusion. Given the particular circumstances of this case, I believe that the trial court did nothing

more than that. The majority has found that the instruction was error, but that the error was

harmless; I would find that no error was committed.




                                                       Bailey C. Moseley
                                                       Justice

Date Submitted:        March 24, 2008
Date Decided:          May 23, 2008

Do Not Publish




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