egregious harm standard in Texas

2025Charge error will only meet the egregious harm standard if it “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (citing Almanza, 686 S.W. 2d at 171 and Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim.

2025Having determined that the charge was erroneous, we review the error pursuant to the egregious harm standard set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

2024See Herron, 86 S.W.3d at 632 (“Under the egregious harm standard, the omission of an Jahn v. State Page 7 accomplice witness instruction is generally harmless unless the corroborating (non- accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.

2024“Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” Id. (quoting Saunders, 817 S.W.2d at 692 ); Lewis, 448 S.W.3d at 144 .

2024See Herron, 86 S.W.3d at 632 (“Under the egregious harm standard, the omission of an Jahn v. State Page 7 accomplice witness instruction is generally harmless unless the corroborating (non- accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.

2024The failure to submit an accomplice- witness instruction assessed under the egregious harm standard “is generally harmless unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” Ambrose, 487 S.W.3d at 598 (quoting Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim.

2015See Hutch, 922 S.W.2d at 171 (stating that in the egregious-harm analysis, we consider the charge, the evidence, arguments of counsel, and any other relevant information revealed by the trial record as a whole).

2013On stage right we have Judge Keasler and the plurality sterilizing Charlie Baird’s plurality opinion in Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996), and in the process basically eliminating the possibility of ever getting relief under the egregious harm standard of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.

2024We will not reverse a conviction under the egregious harm standard unless the defendant has suffered “actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.

2015Analysis In determining that the egregious harm standard for unobjected to jury charge error applies to this particular error, the court of appeals relied on this Court’s decision in Cosio v. State, 353 S.W.3d 766 (Tex. Crim.

2026“The purpose of the egregious-harm inquiry is to ascertain 16 whether the defendant has incurred actual, not just theoretical, harm,” Swearingen v. State, 270 S.W.3d 804, 813 (Tex. App.—Austin 2008, pet. ref’d), and “reversal for an unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm to” the appellant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.

2025However, “[t]he purpose of the egregious-harm inquiry is to ascertain whether the defendant has incurred actual, not just theoretical, harm,” Swearingen, 270 S.W.3d at 813 , and “reversal for an unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm to” the defendant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.

2024Jury arguments bear significantly on an egregious harm analysis, see Gelinas, 398 S.W.3d at 709 , and here the arguments weigh against finding egregious harm.

2022App. 2013), appellant argues that a “proper application paragraph is not necessarily a cure-all.” We agree that an egregious-harm analysis is “a fact specific one which should be done on a case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim.

2015By laying out the correct egregious harm standard, the trial court implicitly found that the corroborating evidence was “exceedingly weak—that is to say, evidence that, while it is legally sufficient to tend to connect, is nevertheless inherently unreliable, unbelievable, or dependent upon inferences from evidentiary fact to ultimate fact that a jury might readily reject.” Casanova v. State, 383 S.W.3d 530, 539 (Tex.Crim.App.2012). 14 The Fourth Court’s analysis of the evidence presented by the state found that the “non-accomplice corroborative evidence” was “relatively strong.” Ambrose at *4

2015By laying out the correct egregious harm standard, the trial court implicitly found that the corroborating evidence was “exceedingly weak—that is to say, evidence that, while it is legally sufficient to tend to connect, is nevertheless inherently unreliable, unbelievable, or dependent upon inferences from evidentiary 7 fact to ultimate fact that a jury might readily reject.” Casanova v. State, 383 S.W.3d 530, 539 (Tex.Crim.App.2012).

2025Charge error will only meet the egregious harm standard if it “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (citing Almanza, 686 S.W. 2d at 171 and Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim.

2015See Allen, 253 S.W.3d at 267-68 (observing, with respect to an egregious-harm analysis pertaining to a defensive theory, that “it is appropriate to consider the plausibility of the evidence raising the defense” as at least one factor in deciding whether egregious harm exists).

2018See Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006); Almanza, 686 S.W.2d at 171 .

2016See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

2025See Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

2025See Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

2024The failure to submit an accomplice- witness instruction assessed under the egregious harm standard “is generally harmless unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” Ambrose, 487 S.W.3d at 598 (quoting Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim.

2023As previously noted, “[u]nder the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non- accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim.

2022The egregious harm inquiry under Almanza is fact specific and “should be done on a case-by-case basis.” Gelinas, 398 S.W.3d at 710 . “[T]he record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error.” Ngo, 175 S.W.3d at 750 .

2021The egregious harm inquiry under Almanza is fact specific and “should be done on a case-by-case basis.” Gelinas, 398 S.W.3d at 710 . “[T]he record must show that a defendant has suffered 9 actual, rather than merely theoretical, harm from jury instruction error.” Ngo, 175 S.W.3d at 750 .

2024See id.; see also Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.

2021“In an egregious-harm analysis, the question is not simply whether, when viewed in the light most favorable to the verdict, the jury could rationally have found predicate facts to a level of confidence beyond a reasonable doubt.” Hollander, 414 S.W.3d at 751 . “[A] reviewing court must evaluate the likelihood, considering the record as a whole, that a properly instructed jury would have found the predicate facts to the requisite level of confidence.” Id.; see Villarreal, 453 S.W.3d at 436 (providing that an appellate court must “properly consider the plausibility of the evidence raising the de

2026However, rather than characterize this as a jury charge error, we interpret the Supreme Court cases related to this particular issue to have broader due process implications.”), with Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim.

2021However, rather than characterize this [Penry claim] as a jury charge error, we interpret the Supreme Court cases related to this particular issue to have broader due process implications.”), with Olivas v. State, 202 S.W.3d 137, 145 (Tex. Crim.

2025Id. at 638, 642 (analyzing charge error under the egregious harm standard when 4 The Martin Court explained that even when the defendant stipulates to a prior conviction and removes the necessity of proof of the conviction, the jury must still be instructed “about the existence and legal effect of the defendant’s stipulation.” Martin v. State, 200 S.W.3d 635, 641 (Tex. Crim.

2025Id. at 638, 642 (analyzing charge error under the egregious harm standard when 4 The Martin Court explained that even when the defendant stipulates to a prior conviction and removes the necessity of proof of the conviction, the jury must still be instructed “about the existence and legal effect of the defendant’s stipulation.” Martin v. State, 200 S.W.3d 635, 641 (Tex. Crim.

2015The egregious harm standard “is a difficult standard to meet,” Nava v. State, 415 S.W.3d 289, 298 (Tex.Crim.App.2018), and usually requires corroborating evidence to be weaker than the “some harm” standard.

2015The egregious harm standard “is a difficult standard to meet,” Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

2019See Nel v. State, No. 08-17-00075-CR, 2019 WL 257882 , at *3 (Tex. App.—El Paso Jan. 18, 2019, no pet.) (not designated for publication) (citing Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim.

2018Arteaga v. State, 521 SW.3d 329, 338 (Tex. Crim.

2015Under an egregious harm analysis, 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 14 other relevant information revealed by the record of the trial as a whole.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.

2015Under an egregious harm analysis, 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.” Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008).

2021CONCLUSION 2 Compare Ex parte Hathorn, 296 S.W.3d 570, 572 (“We acknowledge that normally, an egregious harm standard is proper in analyzing an un-objected-to charge error.

2019App. 2009) (citations omitted). 37 Compare Hathorn, 296 S.W.3d at 572 (“We acknowledge that normally, an egregious harm standard is proper in analyzing an un-objected-to charge error.

2018See Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007).

2015Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim.

2011Id.; Graves v. State, 176 S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. dism'd). 3.

2010Id.; Graves v. State, 176 S.W.3d 422, 435 (Tex.App.-Houston [1st Dist] 2004, pet. struck). *366 C.

2026“The purpose of the egregious-harm inquiry is to ascertain 16 whether the defendant has incurred actual, not just theoretical, harm,” Swearingen v. State, 270 S.W.3d 804, 813 (Tex. App.—Austin 2008, pet. ref’d), and “reversal for an unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm to” the appellant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.

2025However, “[t]he purpose of the egregious-harm inquiry is to ascertain whether the defendant has incurred actual, not just theoretical, harm,” Swearingen, 270 S.W.3d at 813 , and “reversal for an unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm to” the defendant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.

2015Id. at 484–85.

2014See Huizar, 12 S.W.3d at 484-85 . 1.

2025Charge error will only meet the egregious harm standard if it “affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (citing Almanza, 686 S.W. 2d at 171 and Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim.

2024Although Reeves reviewed the comparable charge error for “some harm” rather than applying the higher egregious-harm standard applicable here, see Reeves, 420 S.W.3d at 816–17; see also Elizondo, 487 S.W.3d at 204–05 (similar), the court’s sharp circumstances, reasonably calculated or intended to provoke a difficulty or an attack by deceased upon the Defendant, or if you have a reasonable doubt thereof, then in such event, Defendant’s right of self defense would in no way be abridged, impaired, or lessened, and if you so find, or if you have a reasonable doubt thereof, you will decide the issue

2025See Price, 457 S.W.3d at 440 .

2020“Egregious harm is harm that deprives a defendant of a fair and impartial trial.” Price, 457 S.W.3d at 440 (internal quotation marks omitted).

2024And when conducting an egregious-harm analysis, “a reviewing court must evaluate the likelihood, considering the record as a whole, that a properly instructed jury would have found the predicate facts to the requisite level of confidence.” Hollander v. State, 414 S.W.3d 746, 751 (Tex. Crim.

2021“In an egregious-harm analysis, the question is not simply whether, when viewed in the light most favorable to the verdict, the jury could rationally have found predicate facts to a level of confidence beyond a reasonable doubt.” Hollander, 414 S.W.3d at 751 . “[A] reviewing court must evaluate the likelihood, considering the record as a whole, that a properly instructed jury would have found the predicate facts to the requisite level of confidence.” Id.; see Villarreal, 453 S.W.3d at 436 (providing that an appellate court must “properly consider the plausibility of the evidence raising the de

2019See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim.

1999Posey, 966 S.W.2d at 62 . 3 Consequently, there is no error in the charge and the egregious harm standard of Almanza does not apply.

2015Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non- accomplice) evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002), quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991); Jones v. State, 195 S.W.3d 279, 290 (Tex.App.--Fort Worth 2006, no pet.).

2015Under the egregious harm standard, however, the omission of an accomplice-witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” Jones, 195 S.W.3d at 290 (quoting Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim.