failure to include instruction in Texas

2012Because appellant did not object to the failure to include the instruction, we consider whether the “error is so egregious and created such harm that [the defendant] ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ” Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App.2011) (quoting Almanza v. State, 686 S.W.2d 157, 171-74 (Tex.Crim.App.1985) (op. on reh’g)).

2009The failure to include the instruction is not automatic reversible error, and because he did not object to the jury charge, appellant must show the omission caused him egregious harm under Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim.

2010Id.; see also Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.App.-Fort Worth 2003, no pet.) (explaining it is the appellant's initial burden to overcome the presumption of proper notice and that the presumption "may not be discharged by mere allegations, unsupported by affidavits or other competent evidence"); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, no writ) (same).

2010Id.; see also Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.App.-Fort Worth 2003, no pet.) (explaining it is the appellant’s initial burden to overcome the presumption of proper notice and that the presumption “may not be discharged by mere allegations, unsupported by affidavits or other competent evidence”); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, no writ) (same).

2010Id.; see also Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.App.-Fort Worth 2003, no pet.) (explaining it is the appellant's initial burden to overcome the presumption of proper notice and that the presumption "may not be discharged by mere allegations, unsupported by affidavits or other competent evidence"); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, no writ) (same).

2010Id.; see also Campsey v. Campsey, 111 S.W.3d 767, 771-72 (Tex.App.-Fort Worth 2003, no pet.) (explaining it is the appellant’s initial burden to overcome the presumption of proper notice and that the presumption “may not be discharged by mere allegations, unsupported by affidavits or other competent evidence”); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.-Dallas 1993, no writ) (same).

2006Although Naranjo objected to including an instruction on the presumption in the charge, he did not object to the failure to include the instruction required by section 2.05(a)(2)(A), i.e. , "that the facts giving rise to the presumption must be proven beyond a reasonable doubt." We therefore "cannot reverse the conviction absent a finding 'the error is so egregious and created such harm that [appellant] 'has not had a fair and impartial trial.''" Bellamy v. State , 742 S.W.2d 677, 685 (Tex. Crim.

2006Although Naranjo objected to including an instruction on the presumption in the charge, he did not object to the failure to include the instruction required by section 2.05(a)(2)(A), ie., “that the facts giving rise to the presumption must be proven beyond a reasonable doubt.” We therefore “cannot reverse the conviction absent a finding ‘the error is so egregious and created such harm that [appellant] ‘has not had a fair and impartial trial.”” Bellamy v. State, 742 S.W.2d 677, 685 (Tex.Crim.App.1987).

2006Beathard v. State, 767 S.W.2d at 432 (citing Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) and explaining that the application of a state harmless-error rule is a state question when it involves only errors of state procedure or state law); see also Jimenez v. State, 32 S.W.3d 233, 236-37 (Tex.Crim.App.2000).

2006Beathard v. State, 767 S.W.2d at 432 (citing Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) and explaining that the application of a state harmless-error rule is a state question when it involves only errors of state procedure or state law); see also Jimenez v. State, 32 S.W.3d 233, 236-37 (Tex.Crim.App.2000).

2006Beathard v. State, 767 S.W.2d at 432 (citing Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) and explaining that the application of a state harmless-error rule is a state question when it involves only errors of state procedure or state law); see also Jimenez v. State, 32 S.W.3d 233, 236-37 (Tex.Crim.App.2000).

2006Beathard v. State, 767 S.W.2d at 432 (citing Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) and explaining that the application of a state harmless-error rule is a state question when it involves only errors of state procedure or state law); see also Jimenez v. State, 32 S.W.3d 233, 236-37 (Tex.Crim.App.2000).

2023See Ruiz v. State, 272 S.W.3d 819 , 826–27 (Tex. App.—Austin 2008, no pet.) (concluding that appellant was not egregiously harmed by the failure to include an instruction regarding unanimity where the defendant argued that he committed none of the alleged misconduct and that the victim was lying to get revenge on the defendant); see also Jarrett v. State, No. 10-16- 00049-CR, 2017 WL 1957435 , at *5 (Tex. App.—Waco May 10, 2017, pet. ref’d) (mem. op., not designated for publication) (same); Mosqueda v. State, No. 10-15-00168-CR, 2016 WL 4399973 , at *6 (Tex. App.—Waco Aug. 17, 2016, no pet.) (

2023Moreover, we presume that the jurors read and understood the charge as a whole, which clearly instructed the jury to find appellant guilty if he committed the offense “during a period that was 30 days or more in duration.” See Branum v. State, 535 S.W.3d 217, 229 (Tex. App.—Fort Worth 2017, no pet.); see also 4 The record reflects that appellant did not raise this objection to the jury charge in the trial court; thus, the record must show egregious harm for appellant to prevail on appeal.

2020Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim.

2020See Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim.

2017See Harvey, 78 S.W.3d at 372-73 ; see also Morgan, 2011 Tex. App. LEXIS 8133 , at **7-8.

2015See Gonzalez, 350 S.W.3d at 361 .

2015Bridges v. State, 389 S.W.3d 508, 513 (Tex. App. –Houston [14th Dist.] 2012, no pet.).

2013See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

2012Because appellant did not object to the failure to include the instruction, we consider whether the “error is so egregious and created such harm that [the defendant] ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ” Taylor v. State, 332 S.W.3d 483, 489 (Tex.Crim.App.2011) (quoting Almanza v. State, 686 S.W.2d 157, 171-74 (Tex.Crim.App.1985) (op. on reh’g)).

2011Cf. Boston v. State , 965 S.W.2d 546, 550 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (concluding that to find harmful error based on jury charge during sentencing, “we must find beyond a reasonable doubt that the error did not serve to increase the appellant’s punishment”).

2007In doing so, the court of appeals reviewed only the evidence supporting the element upon which the presumption rested. 4 See Garrett, 159 S.W.3d at 721 (noting that Garrett made a res gestae statement that he hit a “firefighter” and that at no time during trial did Garrett contest that he knew complainant was a public servant).

2002See Huizar, 12 S.W.3d at 484-85 .

2002Id.; Knoll v. Neblett, 966 S.W.2d 622, 638 (Tex.App.—Houston [14th Dist.] 1998, pet. denied).

1999See Reyes v. State, 938 S.W.2d 718, 721 (Tex.Cr.App.1996); Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App.1991).

1999See Reyes v. State, 938 S.W.2d 718, 721 (Tex.Cr.App.1996); Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App.1991).

1998See Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App.1998); Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim.App.1985) (op. on reh’g).

1997In Tamez , for example, the Court relied upon the Court of Criminal Appeals decision in Williams v. State, 851 S.W.2d 282, 287 (Tex.Crim.App.1993) which concluded that the failure to include an instruction on the special issue of mitigation of punishment did not cause egregious harm.

1993See Tex. R.App.P. 81(b)(1); see also Island Recreational, 710 S.W.2d at 555 .

1993See Tex. R.App.P. 81(b)(1); see also Island Recreational, 710 S.W.2d at 555 .