Barron, Jeri Leigh

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD–1770–10 JERI LEIGH BARRON, Appellant v. THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY M EYERS, J., filed a dissenting opinion.

DISSENTING OPINION

The issue here is the distinction between jury-charge error and insufficiency of the evidence. Appellant claimed to the court of appeals that the trial court erred by overruling his objection to the jury charge. The court of appeals agreed that there was error and conducted a harm analysis. Barron v. State, No. 05-09-00589-CR, 2010 Tex. App. LEXIS 4147 (Tex. App.–Dallas May 27, 2010) (not designated for publication). The State asked us to determine whether the court of appeals conducted a proper harm

Barron dissent–Page 2 analysis. After re-analyzing harm under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), the majority affirms the judgment of the court of appeals.

My interpretation of Almanza is that jury-charge error results from a mistake of law in the charge, or when the charge allows conviction on a theory not alleged in the indictment. Here, there is no such mistake; there is simply no evidence to support the theory of guilt that was submitted to the jury. Therefore, this case should not be analyzed under Almanza. For example, it is not “charge error” when a trial court submits to the jury a lesser-included offense that was not raised by the evidence. Such situations require an analysis of the sufficiency of the evidence, not an Almanza analysis.

The court of appeals said that there was no evidence that Appellant ingested any medication, so the instruction that Appellant could be found guilty of intoxication due to the synergistic effect of alcohol and drugs was not raised by the evidence. The court of appeals did not say that this was jury-charge error.1 The problem is that rather than saying that there was insufficient evidence of drug use to support the conviction for DWI under the theory presented in the jury charge and leaving it at that, the court of appeals went on to do an unnecessary Almanza harm analysis.

I agree with the court of appeals’s analysis of the issue, and I agree with the

Barron dissent–Page 3 majority that the court of appeals conducted an incorrect harm analysis. However, instead of re-doing the harm analysis, I would send this case back to the court of appeals for a determination of whether the evidence was sufficient to convict Appellant of DWI for consumption of alcohol alone. Therefore, I respectfully dissent.

Meyers, J.

Filed: November 9, 2011 Publish