Bailey v. State, 867 S.W.2d 42 (Tex. Crim. App. 1993). · Go Syfert
Search
Bailey v. State, 867 S.W.2d 42 (Tex. Crim. App. 1993). Cases Citing This Book View Copy Cite
133 citation events (84 in the last 25 years) across 2 distinct courts.
Strongest positive: Qualon Deshon Weaver v. State of Texas, No. 10-23-00347-CR (Tex. App.—Waco Dec. 30, 2024)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
How cited ↗
Cited for
At page 43 Determining egregious harm in jury charge error analysis94 citing casesnoting that the court must consider the following factors: the charge in its entirety, the state of the evidence, the argument of counsel, and any other relevant information in the record in order to determine if egregious harm existed2 citing courts put it this way · 75 listed here
  • Qualon Deshon Weaver v. State of Texas, No. 10-23-00347-CR (Tex. App.—Waco Dec. 30, 2024).unpublished
    Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Jose Ines Hernandez v. State of Texas, No. 13-22-00196-CR (Tex. App.—Corpus Christi–Edinburg Mar. 30, 2023).unpublished
    App. 1996); and then citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Aaron Brown v. State, No. 13-17-00339-CR (Tex. App.—Corpus Christi Dec. 19, 2018).unpublished
    App. 1996); Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Kirkland v. State, 535 S.W.3d 87 (Tex. App.—Texarkana 2017).published
    App. 1996); Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Smith v. State, 522 S.W.3d 628 (Tex. App.—Houston [14th Dist.] 2017).published
    See Reeves, 420 S.W.3d at 816 ; Wooten, 400 S.W.3d at 606 ; Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Michael Alan Hodges v. State, No. 06-16-00067-CR (Tex. App.—Texarkana Aug. 15, 2016).published
    Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Terrance Davis v. State, No. 06-15-00011-CR (Tex. Crim. App. Oct. 1, 2015).published
    App. 1991); Boones v. State, 170 S.W.3d 653, 660 (Tex. App.—Texarkana 2005, no pet.). 23 Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App.1993) (citing Almanza). 11 instructions.” (R.R.
  • Drake Jordan Finch v. State, No. 07-15-00104-CR (Tex. App.—Amarillo Aug. 25, 2015).published
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Cr.App. 1993) 1982).
  • Cornell McHenry v. State, No. 06-14-00131-CR (Tex. App.—Texarkana Mar. 25, 2015).published
    Therefore, the error in failing to instruct the jury that Mitchell was an accomplice as a matter of law did not egregiously harm the Appellant. 31 Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Elizondo, Jose Guadalupe Rodriguez, No. PD-1039-14 (Tex. Crim. App. Mar. 17, 2015).published 2 cites
    App. 2013) (same); Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
Show 65 more citing cases
  • Derrick Florence v. State, No. 02-12-00025-CR (Tex. App.—Fort Worth July 24, 2014).unpublished
    Stuhler, 218 S.W.3d at 719 ; Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Gelinas, James Henry, 398 S.W.3d 703 (Tex. Crim. App. 2013).published
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993) (citing Almanza).
  • Leslie Kay Klemansky v. State, No. 10-10-00385-CR (Tex. App.—Waco May 18, 2011).unpublished
    Hutch , 922 S.W.2d at 171 (citing Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (citing Almanza )).
  • Abelino Cantu, Jr. v. State, No. 13-08-00666-CR (Tex. App.—Corpus Christi Nov. 30, 2010).unpublished 2 cites
    App. 1996) (citing Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • Serena Blakeney Wainright v. State, No. 07-08-00257-CR (Tex. App.—Amarillo Feb. 24, 2010).unpublished 3 cites
    Stuhler, 218 S.W.3d at 719 ; Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993).
  • James Sanders v. State, No. 02-08-00058-CR, 2008 WL 4445644 (Tex. App.—Fort Worth Oct. 2, 2008).published 3 cites
    Stuhler , 218 S.W.3d at 719 ; Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • William Matthew Schiffert v. State, No. 02-02-00278-CR (Tex. App.—Fort Worth Mar. 20, 2008).published 3 cites
    Stuhler, 218 S.W.3d at 719 ; Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Schiffert v. State, 257 S.W.3d 6 (Tex. App.—Fort Worth 2008).published
    Stuhler, 218 S.W.3d at 719 ; Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993); Almanza, 686 S.W.2d at 171 .
  • In re Alberto Gomez, No. 07-08-00098-CV (Tex. App.—Amarillo Feb. 28, 2008).unpublished
    Ellison v. State, 86 S.W.3d 226, 227 ( Tex.Crim.App . 2002). Â Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Â Stuhler…
  • Landrian v. State, 263 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2008).published
    Ngo, 175 S.W.3d at 750 n. 48; Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993); Almanza, 686 S.W.2d at 171 .
  • Carlos Landrian v. State, No. 01-05-00697-CR, 2007 Tex. App. LEXIS 6290 (Tex. App.—Houston [1st Dist.] Aug. 9, 2007).published
    Ngo , 175 S.W.3d at 750 n.48; Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • Desai Hosp., L.L.C. v. Rajesh Patel, No. 06-07-00032-CV (Tex. App.—Texarkana July 19, 2007).published
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • Stuhler, Martina, No. PD-1723-05 (Tex. Crim. App. Jan. 24, 2007).published
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007).published 2 cites
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993); Almanza v. State, supra, at 171; Ngo v. State, supra, at 750 n. 48. .
  • Sanchez v. State, 209 S.W.3d 117 (Tex. Crim. App. 2006).published 2 cites
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993), citing Almanza v. State, supra, at 171; Ngo v. State, supra, at 750 n. 48. 36 .
  • Eloy Jasso Cedillo v. State, No. 13-03-00689-CR (Tex. App.—Corpus Christi June 29, 2006).unpublished
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
  • Vanschoyck v. State, 189 S.W.3d 333 (Tex. App.—Texarkana 2006).published
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993); Taylor v. State, 146 S.W.3d 801, 810 (Tex.App.-Texarkana 2004, pet. ref'd).
  • Eulan Van Schoyck v. State, No. 06-05-00068-CR (Tex. App.—Texarkana Mar. 14, 2006).published
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim.
  • Andrew Davidoff v. GX Tech. Corp., No. 10-03-00147-CV (Tex. App.—Waco Aug. 17, 2005).published
    Hutch , 922 S.W.2d at 171 (citing Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (citing Almanza )).
  • Jeffrey Boone v. State, No. 06-03-00250-CR, 2005 WL 598752 (Tex. App.—Texarkana Mar. 16, 2005).unpublished
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Taylor , 146 S.W.3d at 810 .
  • Andrew Cervantes v. State, No. 13-03-00394-CR, 2004 Tex. App. LEXIS 7442 (Tex. App.—Corpus Christi Aug. 19, 2004).unpublished
    Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
  • in the Interest of B.L., a Child, No. 06-04-00075-CV (Tex. App.—Texarkana Aug. 12, 2004).published
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993); Taylor v. State , 146 S.W.3d 801, 810 (Tex. App.—Texarkana 2004, pet. ref'd).
  • Grider v. State, 139 S.W.3d 37 (Tex. App.—Texarkana 2004).published 2 cites
    Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993); Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.).
  • Jesus Sanchez v. State, No. 13-02-00331-CR (Tex. App.—Corpus Christi Apr. 29, 2004).unpublished 2 cites
    Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
  • Loredo, Pedro Isreal v. State, No. 14-00-01353-CR (Tex. App.—Houston [14th Dist.] Feb. 10, 2004).published
    Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.
  • Campbell v. State, 128 S.W.3d 662 (Tex. App.—Waco 2004).published 2 cites
    Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.App.1993) (citing Almanza )).
  • Hayward, Roman Lee v. State, No. 14-02-00869-CR (Tex. App.—Houston [14th Dist.] July 31, 2003).unpublished
    Benge , 94 S.W.3d at 37 ( citing Bailey v. State , 867 S.W.2d 42, 43 (Tex. Crim .
  • Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999).published
  • Bargas v. State, 252 S.W.3d 876 (Tex. App.—Houston [14th Dist.] 2008).published
  • Green v. State, 891 S.W.2d 289 (Tex. App.—Houston [1st Dist.] 1995).published
  • Peterson v. State, 942 S.W.2d 206 (Tex. App.—Texarkana 1997).published
  • Taylor v. State, 288 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2009).published
  • Ash v. State, 930 S.W.2d 192 (Tex. App.—Dallas 1996).published
  • Porter v. State, 921 S.W.2d 553 (Tex. App.—Waco 1996).published
  • Benge v. State, 94 S.W.3d 31 (Tex. App.—Houston [14th Dist.] 2003).published
  • Otting v. State, 8 S.W.3d 681 (Tex. App.—Austin 2000).published
  • Castillo v. State, 7 S.W.3d 253 (Tex. App.—Austin 1999).published
  • Loredo v. State, 32 S.W.3d 348 (Tex. App.—Waco 2000).published
  • Degrate v. State, 86 S.W.3d 751 (Tex. App.—Waco 2002).published
  • Fields v. State, 966 S.W.2d 736 (Tex. App.—San Antonio 1998).published
  • Thieu Quang Bui v. State, 964 S.W.2d 335 (Tex. App.—Texarkana 1998).published
  • Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997).published
  • Howard v. State of Texas, 972 S.W.2d 121 (Tex. App.—Austin 1998).published
  • Mata v. State, 939 S.W.2d 719 (Tex. App.—Waco 1997).published
  • Payne v. State, 985 S.W.2d 682 (Tex. App.—Houston [1st Dist.] 1999).published
  • Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996).published
  • Gowans v. State, 995 S.W.2d 787 (Tex. App.—Houston [1st Dist.] 1999).published
  • Linden v. State, 347 S.W.3d 819 (Tex. App.—Corpus Christi 2011).published
  • Tracy Paul Taylor v. State, No. 01-07-00801-CR (Tex. App.—Houston [1st Dist.] Jan. 22, 2009).published
  • James Graham v. State, No. 03-94-00767-CR (Tex. App.—Austin Feb. 7, 1996).published
  • James David Graham v. State, No. 03-95-00099-CR (Tex. App.—Austin Jan. 24, 1996).unpublished
  • Chris Otting v. State, No. 03-98-00281-CR (Tex. App.—Austin Dec. 2, 1999).published
  • Marvin Harvey v. State, 48 S.W.3d 847 (Tex. App.—Austin 2001).published
  • Richard Mata v. State, No. 10-96-00012-CR (Tex. App.—Waco Feb. 5, 1997).published
  • Esequeil Loredo v. State, No. 10-98-00325-CR (Tex. App.—Waco Oct. 18, 2000).published
  • Gregory DeGrate v. State of Texas, No. 10-01-00146-CR (Tex. App.—Waco Aug. 28, 2002).published
  • Lynch, James Alvin v. State, No. 13-99-00369-CR (Tex. App.—Corpus Christi June 1, 2000).unpublished
  • Lisa Moreno v. State, No. 13-03-00650-CR, 2005 WL 1413491 (Tex. App.—Corpus Christi May 26, 2005).unpublished
  • Benge, Cassandra Sue v. State, No. 14-01-00589-CR (Tex. App.—Houston [14th Dist.] July 18, 2002).published
  • George Michael Bargas, Jr. v. State, No. 14-06-00797-CR (Tex. App.—Houston [14th Dist.] May 13, 2008).published
  • Kyle James Moesch v. State, No. 03-11-00267-CR (Tex. App.—Austin Aug. 24, 2012).unpublished
  • Bobby Wayne Doss v. State, No. 12-10-00383-CR (Tex. App.—Tyler June 8, 2011).published
  • Hutch v. State, 881 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1994).published
  • Barrera v. State, 10 S.W.3d 743 (Tex. App.—Corpus Christi 2000).published
  • Payne v. State, 33 S.W.3d 374 (Tex. App. 2000).published
At page 48 cited at this page1 citing case
  • Loredo v. State, 130 S.W.3d 275 (Tex. App.—Houston [14th Dist.] 2004).published
    Bailey v. State, 867 S.W.2d 42, 48 (Tex.Crim.App.1993).
Retrieving the full opinion text from the archive…
Theo Clay BAILEY, Appellant,
v.
the STATE of Texas, Appellee
454-93.
Court of Criminal Appeals of Texas.
Dec 8, 1993.
Published opinion
867 S.W.2d 42
1993 Tex. Crim. App. LEXIS 196
1993 WL 500488
Hazel R. Bolden, Houston, for appellant., John B. Holmes, Jr., Dist. Atty., and Alan Curry and Melissa Schwarz Douma, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
Maloney.
Cited by 111 opinions  |  Published

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of delivery of a controlled substance and, upon a finding of true as to two enhancement allegations, the jury assessed punishment at sixty years confinement in the Institutional Division of the Texas Department of Criminal Justice. The Court of Appeals reversed. Bailey v. State, 848 S.W.2d 321 (Tex.App.—Houston [1st Dist.] 1993). We granted the State’s petition for discretionary review to consider whether the Court of Appeals erred in “holding that the appellant was egregiously harmed by a portion of the trial court’s charge to the jury.” See Tex.R.App.P. 200(c)(5).

On appeal appellant complained that the trial court erred in submitting at guilt a jury instruction pertaining to evidence of extraneous offenses. [1] The Court of Appeals agreed that the instruction given was erroneous, constituted an improper comment on the weight of the evidence and drew attention to the fact that appellant exercised his right to remain silent. Id. at 322. The Court of Appeals concluded the error was harmful. The dissent pointed out that because appellant did not object to the charge at trial, he had the burden under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on reh’g), of showing that the charge was so egregious that he was deprived of a fair and impartial trial. Id. at 323 (Mirabal, J., dis-[*43] seating). The dissent set forth and applied the factors identified by this Court in Al-manza as appropriate for determining egregious harm, and concluded that appellant failed to meet his burden. Id. at 323-24.

In Almanza, we held that in the absence of a proper trial objection to error in the charge,

the accused must claim that the error was “fundamental” [and] will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial” — in short “egregious harm.”

Almanza, 686 S.W.2d at 171. We further said that such error must be reviewed “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.

Although the Court of Appeals cited Almanza, it did not recognize that the standard to be applied in this case was one of determining “egregious error”. Nowhere in its opinion, did the Court of Appeals discuss or apply the factors we have held are to be considered in assessing charge error. Rather, the Court concluded that “[t]his jury charge is simply below the minimum standard the law should require.” Bailey, 848 S.W.2d at 322-23. This holding is not in line with Almanza. We did not there recognize that certain charges automatically fall below a “minimum standard.” Rather, every charge error must be assessed in light of “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole.” The Court of Appeals erred in failing to consider and apply these factors as required by Almanza.

Accordingly, the judgement of the Court of Appeals is vacated and this cause is remanded to the Court of Appeals to conduct a proper harm analysis pursuant to our opinion in Almanza. See Johnson v. State, 853 S.W.2d 574 (Tex.Crim.App.1993) (where a piece of allegedly improperly admitted evidence was not mentioned in court of appeals’ harm analysis, such analysis incomplete and case remanded).

1

. Appellee complained of the following instruction:

You are instructed that certain evidence was admitted before you in regard to the defendant's having been charged and convicted of an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.

This instruction was erroneous because no evidence was admitted during guilt of any extraneous offense.