Mark Morales v. Texas Department of Protective and Regulatory Services--Appeal from 250th District Court of Travis County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2004 » Mark Morales v. Texas Department of Protective and Regulatory Services--Appeal from 250th District Court of Travis County

State: Texas

Court: Texas Northern District Court

Docket No: 03-04-00003-CV

Case Date: 09/30/2004

Plaintiff: ROBERT GRAY

Defendant: THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

Preview:Vincent Huizar v. The State of Texas--Appeal from
144th Judicial District Court of Bexar County
No. 04-96-00837-CR
Vincent HUIZAR,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-5063
Honorable R.L. Eschenburg, Judge Presiding
Opinion by: Alma L. L pez, Justice
Sitting en banc: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Alma L. L pez, Justice
Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice (concurring in the judgment only)
Karen Angelini, Justice
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
Delivered and Filed: August 30, 2000
AFFIRMED
Previously, we considered Vincent Huizar's appeal wherein he complained that his trial attorney was ineffective, in
part, for failing to request a reasonable-doubt instruction during the punishment phase of trial. After examining the
totality of the attorney's performance, we determined that the failure to ask for a reasonable-doubt instruction in the
court's punishment charge did not amount to ineffective assistance of counsel in the absence of authority requiring such
an instruction. See Huizar v. State, 966 S.W.2d 702, 706 (Tex. App.--San Antonio 1998), rev'd, 12 S.W.3d 479 (Tex.
Crim. App. 2000). Then, because the State relied on substantial evidence of extraneous conduct in seeking punishment,
and because the prosecutor commented during the State's closing argument that the State had no burden of proof
during the punishment trial, we examined the necessity of instructing the jury on the burden of proof for extraneous
offenses in the punishment charge. See Huizar v. State, 966 S.W.2d at 707-08. Because article 37.07 of the Code of
Criminal Procedure (the Code) permits the jury to consider evidence of extraneous conduct only when proven beyond
file:///C|/Users/Peter/Desktop/opinions/PDFs1/13157.html[8/20/2013 7:26:26 PM]

a reasonable doubt, we determined that the jury must be instructed on the burden of proof whenever the State
introduces evidence of extraneous bad acts during the punishment phase of trial. See id. at 708. Because Huizar's jury
had not been instructed, we held that the trial judge erred. Id. at 709. We next conducted a harm analysis.
Reasoning that the reasonable-doubt instruction standard is both a state and federal constitutional right, we then
applied Rule 44.2(a) of the rules of appellate procedure and determined that a substantial amount of extraneous offense
evidence prevented us from concluding that the failure to instruct the jury did not contribute to Huizar's sentence. Id. at
710. As a result, we reversed the sentencing portion of the trial court's judgment and remanded the case to the trial
court for a new punishment trial. Id.
On petition for discretionary review, the Court of Criminal Appeals agreed that the trial judge erred by failing to
instruct the jury on the reasonable doubt standard during the punishment phase of trial, but disagreed that the error
implicated constitutional rights. See Huizar v. State, 12 S.W.3d 479, 484 ( Tex. Crim. App. 2000) (op. on reh'g).
Specifically, the Court instructed that the error was derived from violations of sections 36.14 and 37.07 of the Code,
and thus the error should be analyzed under the standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1985). See Huizar, 12 S.W.3d at 484-85. The Court then reversed this court's judgment and remanded the appeal for
harm analysis. See id. at 485. We now consider the error under Almanza.
Under Almanza, the court of appeals reviews a jury charge error according to whether the error was preserved at trial.
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). The court of appeals will not
reverse error that was not preserved at trial unless the error was so harmful that the defendant was denied "a fair and
impartial trial." Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). To constitute reversible error, a
defendant must have suffered actual "egregious" harm. Arline, 721 S.W.2d at 351-52. The actual degree of harm must
be assayed "in light of the entire jury charge, the state of the evidence, including 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." Almanza, 686 S.W.2d at 171.
After reviewing the record of Huizar's trial as a whole, we cannot conclude that Huizar was denied a fair and impartial
trial. While a sentence of 99 years may seem to be egregious harm that requires reversal, the sentence is within the
range of punishment for aggravated sexual assault. As a result, we conclude that the failure to instruct the jury on the
reasonable-doubt standard during the punishment phase of trial was harmless under Almanza.
We now affirm the sentencing portion of the trial court's judgment. Although Justice Mansfield opined in a concurring
opinion that he would order this court to determine whether trial counsel's failure to request a reasonable-doubt
instruction during punishment phase amounted to ineffective assistance of counsel, the Court's decision on remand, as
well as the Court's decision in Thompson v. State, make ineffective assistance of counsel a moot consideration. See
Thompson v. State, 9 S.W.2d 808, 814 (Tex. Crim. App. 1999) (cautioning courts of appeals to be "especially hesitant
[about declaring] counsel ineffective based on a single alleged miscalculation during what amounts to otherwise
satisfactory representation, especially when the record provides no discernible explanation of the motivation behind
counsel's actions").
Alma L. L pez, Justice
PUBLISH
file:///C|/Users/Peter/Desktop/opinions/PDFs1/13157.html[8/20/2013 7:26:26 PM]

Download 13157.pdf