ARLINE v. STATE

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of voluntary manslaughter. V.T. C.A. Penal Code, § 19.04 (1974). The jury assessed punishment at confinement for twenty (20) years in the Texas Department of Corrections and a $10,000 fine.

The Beaumont Court of Appeals reversed appellant's conviction, holding that the trial court committed reversible error in failing, after timely objection, to include a definition of "reasonable belief"1 in the jury charge at the guilt/innocence stage of the trial. Arline v. State, 690 S.W.2d 20 (Tex.App.—Beaumont 1984). We then summarily granted the State's petition for discretionary review and remanded the cause to the Court of Appeals for reconsideration in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (establishing different standards for reviewing harmfulness of preserved and unpreserved jury charging error). Arline v. State, No. 079-85 (Tex.Cr.App. Nov. 13, 1985) (per curiam, unpublished).

Upon reconsideration, the Court of Appeals again reversed appellant's conviction, holding that the trial court's failure to define "reasonable belief" in the jury charge had caused appellant "some" harm. Arline v. State, 702 S.W.2d 755 (Tex.App.— Beaumont 1986). We again granted the State's petition for discretionary review to determine whether the Court of Appeals correctly applied Almanza, supra. We will reverse and remand.

I.

Appellant was charged with murder for "intentionally and knowingly caus[ing] the death of Darrell Quinn Jones by beating him with a gun and hitting him with a mop handle." (R. 1-2). See Art. 19.02, V.T.C.A. Penal Code (1974). Only a brief recitation of the relevant facts surrounding this event is necessary.

On October 22, 1982, appellant, wanting to speak with his estranged girlfriend Mary Route, broke a window in the bedroom of her apartment from the outside. Darrel Quinn Jones, having been in the bedroom watching television with Mary Route, exited the apartment and confronted appellant with a pellet pistol. A fight ensued, and appellant wrestled the pistol from Jones and hit Jones several times with it. The pistol broke into several pieces and the fight continued. Appellant then obtained a mop handle and hit Jones several times with it. Finally, the police arrived and appellant fled. Jones died shortly afterward.

Appellant was arrested later that evening at a relative's house. He made a written and signed confession to the police that included the following statements:

During his trial, appellant testified that he acted in self-defense after Jones confronted him with what appellant thought was a "real" pistol. Appellant also testified that Jones continued the combat even after appellant had taken the pistol from him.

The jury was charged on the law of murder, voluntary manslaughter and selfdefense. The abstract portion of the charge on self-defense reads as follows:

(R. I-28) (emphasis added). The application portion of the charge reads as follows:

(R. I-29) (emphasis added).

Prior to submission of the charge to the jury, appellant objected "that there is no definition or instruction on what `reasonable belief' is." (R. III-290). The trial court overruled the objection.

During final argument on guilt/innocence, appellant's attorney made the following argument relevant to appellant's "reasonable belief":

(R. III-300) (emphasis added).

The State responded with the following argument:

(R. III-325-26) (emphasis added).

II.

On direct appeal, appellant alleged that it was error for the trial court to refuse to define the term "reasonable belief" in the jury charge. The Court of Appeals could find no authority controlling appellant's point of error but reasoned that the Legislature intended for the jury to be informed of its own definitions for words and phrases used in the Penal Code. Arline, 690 S.W.2d at 20.

After this Court remanded this cause for reconsideration in light of Almanza, supra, the Court of Appeals determined that appellant had been harmed in the following manner:

Arline, 702 S.W.2d at 756. We must now determine whether the Court of Appeals properly applied the harmless error standard of Almanza, supra.

III.

In Almanza, this Court held that Article 36.19, V.A.C.C.P. (1974),2 prescribes the manner in which jury charge error is reviewed on appeal. 686 S.W.2d at 171. Instead of automatically reversing convictions for technical charging errors, an appellate court must undertake a two-step process of review. First, an appellate court must determine whether error exists in the charge. Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal of the conviction. Id. See Jones v. State, 720 S.W.2d 535, 536 (Tex.Cr.App.1986).

The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved. Concerning error that was preserved at trial by a timely and specific objection, that error must have been "calculated to injure the rights of [the] defendant." Article 36.19, V.A.C.C.P. (1974); Almanza, supra, at 171. In other words, a defendant must have suffered "some" actual, rather than theoretical, harm from the error. Id.

Presumably, this Court chose the term "some" to indicate the minimum degree of harm necessary for reversal of cases involving preserved charging error. However, that term was left undefined.3 We now expressly find that, in the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred. See id. at 171 ("In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.").

For error that was not preserved at trial, the error must have been so harmful that the defendant was denied "a fair and impartial trial." In other words, a defendant must have suffered actual "egregious" harm. Id. For both preserved and unpreserved charging error, "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." Id.

The Court of Appeals determined that charging error occurred in the instant case. See Arline, 690 S.W.2d at 20. Indeed, the State does not challenge the Court of Appeals' holding that the trial court erred by failing to include the statutory definition of "reasonable belief" in the jury charge.4 The State only challenges the Court of Appeals' holding that the error was harmful enough to require a reversal.

Appellant properly preserved the charging error in the instant case. The Court of Appeals, therefore, was obligated to determine whether the error "was calculated to injure the rights of [appellant]" before reversing appellant's conviction. Art. 36.19, V.A.C.C.P.; Almanza, supra, at 171. Using this formula, the Court of Appeals was required to examine the relevant portions of the entire record to determine whether appellant suffered any actual harm as a result of the error.

The State argues that the Court of Appeals, in analyzing the instant case for the presence or absence of harm, incorrectly limited its review of the record to the jury charge. We agree.

By focusing exclusively upon the charge, the Court of Appeals failed to consider the harmfulness of the charging error in the context of the entire record. We must now review the entire record to determine whether appellant was harmed by the trial court's failure to include a definition of "reasonable belief" in the jury charge.

As observed in note 4, ante, this Court has had two opportunities to determine whether a defendant was harmed by a trial court's refusal, over objection, to include a statutory definition in the jury charge. See MacDougall, supra; Mosley, supra. An analysis of the record in those cases provides some guidance for analyzing the instant case.

In MacDougall, this Court reversed a defendant's conviction for theft of an automobile because the trial court refused to include a statutory definition of the word "deception" in the charge. 702 S.W.2d at 652. This Court found that the defendant had suffered "some" harm because "[t]he State was required to prove that [defendant] acquired the car without the owner's effective consent[,]" and "[d]eception was the only theory available to the State on the evidence." Id.5

In Mosley, this Court affirmed a defendant's convictions for committing three aggravated robberies because the defendant had not suffered any harm as a result of the trial court's refusal to include a statutory definition of the phrase "bodily injury" in the jury charge. 686 S.W.2d at 182. No harm had occurred because the State's evidence of "bodily injury" was undisputed. Id. In addition, we noted that "bodily injury" "is not a complex or unusual term, and the legal definition is much like the common meaning of the word.[6] Taking this into consideration, along with the facts, we [did] not believe [defendant] was harmed by the error." Id. at n. 2.

In the instant case, appellant presented an affirmative defense of self-defense to the jury. Central to an understanding of that defense was the term "reasonable belief." In particular, the jury was confronted with two questions: (1) Did appellant have a reasonable belief that he was under unlawful attack by deadly force? and (2) Did appellant reasonably believe that the degree of force that he employed in his response to that attack was immediately necessary?

While there was a dispute in the evidence relevant to both questions, there is nothing in the record to indicate that the jury was misled or left ignorant of how the term "reasonable belief" was to be applied to the self-defense portion of the charge.7 The charge consistently advised the jury to consider the "reasonable belief" from appellant's viewpoint, thus incorporating a part of the definition within the abstract and application portions of the charge.

We acknowledge that the charge did not explicitly inform the jury that it must measure the reasonableness of appellant's belief by deciding whether an "ordinary and prudent man" would have held the same belief. However, the wording of the charge benefited appellant by instructing the jury to consider the reasonableness of appellant's belief from his viewpoint. As such, the jury could have accepted appellant's standard of reasonableness even if they thought it differed from an objective standard of reasonableness.

Furthermore, Appellant argued the statutory definition of "reasonable belief" during jury argument, and the State did not dispute its meaning.8 The State disagreed with appellant's argument that the evidence showed that his belief was reasonable. However, the State did not encourage or suggest to the jury that it disregard appellant's viewpoint or that it apply an inappropriate standard of reasonableness. The State only argued that, even from appellant's viewpoint, no person would have reasonably believed that further force was immediately necessary once the pistol was taken from Jones.

Given these circumstances, we find that appellant was not harmed by the trial court's failure to include a statutory definition of "reasonable belief" in the jury charge. Cf. Mosley, supra.

The judgment of the Court of Appeals is reversed and this cause is remanded for the Court of Appeals to consider appellant's remaining points of error.9

CLINTON and MILLER, JJ., dissent believing that some harm was demonstrated.

ONION, P.J., concurs.