complained-of error in Texas

2021Williams — 15 harm.27 If no objection was made, reviewing courts determine whether the error caused the defendant egregious harm.28 But when the complained-of error is the lack of a defensive instruction, the Almanza framework does not apply.29 As we explained in Posey v. State, unrequested defensive instructions are still subject to ordinary rules of procedural default.30 A defendant cannot complain for the first time on appeal about the lack of a defensive instruction absent preservation of the error.31 Requests for lesser-included instructions, like requests for defensive 27 Almanza, 686 S.

2021Williams — 15 harm.27 If no objection was made, reviewing courts determine whether the error caused the defendant egregious harm.28 But when the complained-of error is the lack of a defensive instruction, the Almanza framework does not apply.29 As we explained in Posey v. State, unrequested defensive instructions are still subject to ordinary rules of procedural default.30 A defendant cannot complain for the first time on appeal about the lack of a defensive instruction absent preservation of the error.31 Requests for lesser-included instructions, like requests for defensive 27 Almanza, 686 S.

2010See Norman Commc'ns v. Tex. Eastman Co. , 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (stating that, for purposes of restricted appeals, the face of the record consists of all the papers on file in the appeal).

2010See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (stating that the face of the record, for purposes of restricted appeals, consists of all the papers on file in the appeal).

2024Hargrove v. State, No. 05-11-00307-CR, 2012 WL 3553501 , at *9 (Tex. App.— Dallas Aug. 20, 2012, pet. ref’d) (mem. op., not designated for publication) (citing Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim.

2019Id.; see Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim.

2024See Lozano, 636 S.W.3d at 29 (citing Ngo, 175 S.W.3d at 750 ).

2021App. 2013); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

2013Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App.2006); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); Lovings, 376 S.W.3d at 337 .

2012Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim.

2010App. P. 33.1; Pena v. State, 285 S.W.3d 459, 462-464 ( Tex.Crim.App . 2009) (discussing preservation of error).  Although the State’s argument has some merit, we find appellant’s objection to the imposition of cumulative sentencing for the fifty-and twenty-year sentences was conveyed to the trial court, and was overruled by the court’s sentencing decision, so as to preserve the complained-of error for our review. [5] Cf. Gordon v. State, 633 S.W.2d 872 , 879 n.16 ( Tex.Crim.App . 1982) ( citing O = Bryan v. State, 591 S.W.2d 464, 476, 478 ( Tex.Crim.App . 1979) ( A The duration of confinem

2010Although the State’s argument has some merit, we find appellant’s objection to the imposition of cumulative sentencing for the fifty-and twenty-year sentences was conveyed to the trial court, and was overruled by the court’s sentencing decision, so as to preserve the complained-of error for our review. [5] Cf. Gordon v. State, 633 S.W.2d 872 , 879 n.16 ( Tex.Crim.App . 1982) ( citing O = Bryan v. State, 591 S.W.2d 464, 476, 478 ( Tex.Crim.App . 1979) ( A The duration of confinement following its assessment of punishment is not a legitimate concern of a jury @ ). [6] Although we need not addres

2022See Beltran de la Torre, 583 S.W.3d at 617 (holding that a trial judge “may not express any opinion on the weight of the evidence or draw the jury’s attention to particular facts”); Brown v. State, 122 S.W.3d 794, 801 (Tex. Crim.

2015See Brown v. State, 122 S.W.3d 794, 800-01 (Tex. Crim.

2015See Thota, 366 S.W.3d at 687 .

2015See Thota, 366 S.W.3d at 687 .

2011App. P. 33.1 (requiring preservation of complaints on appeal); 44.1 (providing that no judgment may be reversed on appeal for trial court error unless the complained-of error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals); see also Holten, 168 S.W.3d at 783 (stating that if the proceeding was evidentiary, ―then a complaining party must present a record of that hearing to establish harmful error‖). 16 CMM Grain Co., 991 S.W.2d at 439–40. 17 See Guyot v. Guyot, 3 S.W.3d 243, 247 (Tex. App.—Fort

2011App. P. 33.1 (requiring preservation of complaints on appeal); 44.1 (providing that no judgment may be reversed on appeal for trial court error unless the complained-of error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals); see also Holten , 168 S.W.3d at 783 (stating that if the proceeding was evidentiary, “then a complaining party must present a record of that hearing to establish harmful error”). [16] CMM Grain Co. , 991 S.W.2d at 439–40. [17] See Guyot v. Guyot , 3 S.W.3d 243, 247 (Tex. App

2011See Phillips v. Phillips, 296 S.W.3d 656, 674 (Tex.App.-El Paso 2009, pet. denied).

2011See Phillips v. Phillips, 296 S.W.3d 656, 674 (Tex.App.-El Paso 2009, pet. denied).

2010See Almanza , 686 S.W.2d at 171 ; Chiodo , 2007 WL 1952375 , at *4; see also Fulcher , 274 S.W.3d at 718–19.

2010See Almanza, 686 S.W.2d at 171 ; Chiodo, 2007 WL 1952375 , at *4; see also Fulcher, 274 S.W.3d at 718-19 .

2020See Barrios, 283 S.W.3d at 353 (holding there was no error where the charge allowed the jury to consider the entire charge as a whole and the complained-of instruction did not require the jury to unanimously agree that the 7 Appellant did not request such an instruction.

2018The court also concluded that “the charge allowed the jury to consider the entire charge as a whole and that the complained-of instruction does not require the jury to unanimously agree that a defendant is not guilty of the greater offense before considering a lesser-included offense.” Id.

2021If, as in these cases, the appellant objected to the complained-of error in the jury charge, he will obtain relief if the record shows he suffered “some harm.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.

2021If, as in these cases, the appellant objected to the complained-of error in the jury charge, he will obtain relief if the record shows he suffered “some harm.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim.

2023App. 1979). 8 A. Standard of Review “When an appellant protests that the trial court erred not to grant h[er] request to charge the jury regarding sudden passion, a reviewing court must first determine whether the complained-of error exists.” Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim.

2018“When an appellant protests that the trial court erred not to grant his request to charge the jury regarding sudden passion, a reviewing court must first determine whether the complained-of error exists.” Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim.

2025See Ex parte Bohannan, 350 S.W.3d 116, 120 (Tex. Crim.

2024See Ex parte Bohannan, 350 S.W.3d 116, 120 (Tex. Crim.

2025App. 2021) (citing Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim.

2021Williams — 15 harm.27 If no objection was made, reviewing courts determine whether the error caused the defendant egregious harm.28 But when the complained-of error is the lack of a defensive instruction, the Almanza framework does not apply.29 As we explained in Posey v. State, unrequested defensive instructions are still subject to ordinary rules of procedural default.30 A defendant cannot complain for the first time on appeal about the lack of a defensive instruction absent preservation of the error.31 Requests for lesser-included instructions, like requests for defensive 27 Almanza, 686 S.

2025Id. at 251 . 3 Notably, when “the complained-of error is the lack of a defensive instruction, the Almanza framework does not apply.” Williams, 662 S.W.3d at 461; Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim.

2024App. 2018) (whether defendant objected to error simply determines which of Almanza’s dual standards of review applies to determine whether error is reversible). 6 Notably, when “the complained-of error is the lack of a defensive instruction, the Almanza framework does not apply.” Williams, 662 S.W.3d at 461; Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim.

2024See Lovill v. State, 319 S.W.3d 687 , 691 33 (Tex. Crim.

2023See Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim.

2023See Vega, 394 S.W.3d at 521–22; Herrera v. State, 527 S.W.3d 675, 679 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

2018See Herrera v. State , 527 S.W.3d 675 , 679 (Tex. App.-Houston [14th Dist.] 2017, no pet.).

2021While it is true that this Court observed that the instruction did “state what reasonable doubt is not, and in this sense, is definitional,” see Rodriguez, 96 S.W.3d at 405 , we did not conclude that it was an erroneous instruction because it constituted a comment on the weight of the evidence.7 Rather, although observing that “the complained-of instruction [did] not appear to be too intrusive upon the ‘better practice,’” we concluded that “it should not have been given over objection.” Id.; see Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim.

2012Reasonable Doubt Anderson complains of the following instruction: “It is not required that the prosecution proves guilt beyond all possible doubt; it is required that the prosecutor’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” In Ruiz v. State, this Court stated that the exact same instruction as the complained-of instruction is not a definition of “reasonable doubt” and “does not run afoul of the court of criminal appeals precedent in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim.

2016See id; see also Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994) (“A jury charge which tracks the language of a particular statute ip.a proper charge on a statutory issue.”)., Given that trial courts have “broad discretion” in submitting proper definitions and explanatory phrases to aid the jury, we cannot say that the trial court’s inclusion of the complained-of instruction in the charge was erroneous.

2016See id; see also Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994) (“A jury charge which tracks the language of a particular statute ip.a proper charge on a statutory issue.”)., Given that trial courts have “broad discretion” in submitting proper definitions and explanatory phrases to aid the jury, we cannot say that the trial court’s inclusion of the complained-of instruction in the charge was erroneous.

2016See Nava, 379 S.W.3d at 420 ; Nejnaoui, 44 S.W.3d at 119 ; see also Shipp, 331 S.W.3d at 444 .

2016See Nava, 379 S.W.3d at 420 ; Nejnaoui, 44 S.W.3d at 119 ; see also Shipp, 331 S.W.3d at 444 .

2016See Nava, 379 S.W.3d at 420 ; Nejnaoui, 44 S.W.3d at 119 ; see also Shipp, 331 S.W.3d at 444 .

2016See Nava, 379 S.W.3d at 420 ; Nejnaoui, 44 S.W.3d at 119 ; see also Shipp, 331 S.W.3d at 444 .

2015The complained-of instruction and plainly, and obtained a ruling.'" (quoting State describes a reasonableness [*444] analysis that the trial Dep't of Highways v. Payne, 838 S.W.2d 235 , 241 court itself was supposed to conduct--this instruction, (Tex. 1992))). despite its proper statement of the law, would not assist the jury.

2011Rather, Payne held that “[tjhere should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely arid plainly, and obtained a ruling.” Payne, 838 S.W.2d at 241 .

2024The parties agreed to submit an unsigned charge for purposes of the record, and the quoted language is from that charge. –2– not define “reasonable doubt.” O’Canas v. State, 140 S.W.3d 695 , 701–02 (Tex. App.—Dallas 2003, pet. ref’d); Bates v. State, 164 S.W.3d 928, 931 (Tex. App.— Dallas 2005, no pet.).

2019In this case, the court’s charge included the following instruction: “It is not required that the prosecution proves guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” As Wilson acknowledged in his brief, this Court, as well as several other courts, have previously concluded the complained-of instruction does not constitute a definition of reasonable doubt because “[i]t simply states the legally correct proposition that the prosecution’s burden is to establish appellant’s guilt beyond a reasonable doub

2021See Celis, 416 S.W.3d at 433 ; Kirsch, 357 S.W.3d at 651 ; Whaley, 717 S.W.2d at 32 ; see also Nguyen, 506 S.W.3d at 83 (holding that submission of element of offense did not constitute improper comment because it did not imply approval of State’s arguments because nearby instruction required jury to find that element proven beyond a reasonable doubt before finding defendant guilty); Hanson v. State, 180 S.W.3d 726 , 728–29 (Tex. App.—Waco 2005, no pet.) (holding that instructions’ use of “alleged victim” did not constitute improper comment because although using “victim” alone would be improp

2020See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.