I join the majority opinion on those points that affirm the conviction, but I dissent to the majority's remand of this case for a new punishment hearing. The majority finds reversible error in appellant's third point of error, regarding the failure to instruct the jury completely concerning the future dangerousness special issue. Although I agree that the trial court erroneously denied appellant's request for a complete instruction, I would affirm because the record does not show harm.

Because appellant preserved error, we analyze the case under the "some harm" test set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(Opinion on State's Motion for Rehearing). Under the "some harm" test, the presence of any harm is sufficient to require reversal, but the harm must be actual rather than theoretical. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). And, "the burden of proof lies with the defendant to persuade the reviewing court that he suffered some actual harm as a consequence of the charging error." Id.

In determining whether some harm exists, we must take into account "the entire jury charge, the state of the evidence, including the 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.

The error in question here is that the jury was not specifically instructed in the future dangerousness section of the punishment charge that it must consider evidence from the punishment phase in determining future dangerousness. The potential harm from such an omission from the jury instructions is that the jury might be misled into believing that punishment stage evidence was not relevant to a future dangerousness determination. The question is whether appellant has shown that such harm actually occurred in the present case.

What is most significant in answering this question is the fact that though the charge was incomplete, it did not misdirect the jury. The jury was simply instructed to consider all guilt stage evidence. Although not expressly including punishment stage evidence for consideration, the instruction did not expressly exclude the jury's consideration of such evidence either. This is why the majority errs to rely on Bollenbach v. United States, 326 U.S. 607, 613-614 (1946), which speaks of "disregard[ing] bad law." See slip op. at . Unlike the jury in Bollenbach, the jury in this case did not have to disobey the court's instructions in order to consider the punishment phase evidence. The error in Bollenbach was different in kind, rather than in degree, from the error in this case.

In addition to the defective instruction, the jury charge contained another, earlier instruction relating to the jury's consideration of the special issues: "In order for the Court to assess the proper punishment, it is necessary now for you to determine, from all the evidence in the case, the answers to certain questions called 'Special Issues,' in this charge" (emphasis added). This additional instruction provided the jury with a textual basis for considering punishment stage evidence in connection with the future dangerousness issue.

Besides that, a conclusion that punishment stage evidence could not be considered in connection with a punishment issue defies common sense. Why submit an issue at punishment rather than at guilt/innocence if the factfinder is permitted to consider only the guilt stage evidence?

Moreover, other portions of the trial record show that the jury could not have been misled into believing that punishment stage evidence was not to be considered in determining future dangerousness. In his general instructions to the jury preceding voir dire, the trial judge explicitly told the jury that punishment phase evidence would be used by the jury in determining future dangerousness:

You're going to get two questions read to you and the jury will have to answer these two questions. The first question that you're going to get is as follows: Do you find from the evidence beyond a reasonable doubt that there's a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? That's question No. 1. And you'll have to decide that from the testimony you've heard at the punishment phase of the trial.

(Emphasis added). In addition, four of the persons who actually served on the jury had also been instructed by the State during individual voir dire that punishment phase evidence would be relevant to the future dangerousness determination.⁽¹⁾

Further, at the punishment stage, the State introduced several extraneous offenses and then, during argument, contended that such evidence constituted proof that appellant posed a future danger to society. Based entirely upon evidence admitted in the punishment phase, the State argued the following:

After hearing what you've heard, that we've all heard in this courtroom the last few days, there can be no doubt that the defendant would be a continuing threat to society in the future. Just look at his past. Just look at his past. He started out as a school bully, troublemaker, getting in fights at school. And graduated now, he's graduated to capital murder, to a cold blooded killer with plenty of stops along the way. At 15, he's committing aggravated assault with a deadly weapon, and you can see by the teardrop tattoo on his face that he's proud of it. He's now a gang banger, a street punk, Vato Locos. Breaking into cars, beating up witnesses. And what did Frank Wiggins say? He hit him in the face with a brick. That's not kid's stuff ladies and gentlemen of the jury. How many people do you know that have raised their hands and hit someone over, and over again in the face with a brick? That's pure rage. That's uncontrollable violence. That's a future danger. He's out there committing crimes, burglary, criminal mischief, retaliation, aggravated assault with a deadly weapon, aggravated sexual assault of a child....But he didn't stop there. Did we know that he would be a future danger, a threat to society, could you tell that after he committed a few, after he had a few fights at school? Probably not. What about after he burglarized some of those cars? Well, you know, probably not. How about after the aggravated assault with a deadly weapon? Yeah, probably. Now we're getting somewhere. How about after he beat up Frank Wiggins, retaliation for the statement he gave to Jason Grant? Definitely. How about after the aggravated sexual assault of Kristen Smith? No doubt. No doubt.

Using punishment stage evidence to show the probability that appellant was a future danger was a major part of the State's case and strategy. We have noted in the past that jury argument, while "not a substitute for a proper jury charge," may nevertheless be "relevant in determining whether a jury was being misled" by an improper instruction. Arline v. State, 721 S.W.2d 348, 353 n. 8 (Tex. Crim. App. 1986). Given the State's argument, combined with other information in the record, the jury could not have labored under the false impression that punishment stage evidence was irrelevant to future dangerousness. After reviewing the punishment charge, the trial judge's instructions during voir dire, questioning during voir dire, the evidence, and the arguments of counsel, I would find that appellant has not shown that he suffered some actual harm. I respectfully dissent from the majority's decision insofar as it grants relief on point of error three. KELLER, J.

Date Delivered: March 8, 2000

Publish

1. Juror No. 1 was questioned as follows:

Q. Okay. Now, in this, as in all capital cases, the jury doesn't actually write down life or death. They're submitted, as the Judge told you on Friday, two questions to answer based on that evidence that you heard at the first part of the trial about what happened, what were the facts of that case that you found the Defendant guilty of, plus all of the other facts on the second stage. Do you understand that?

A. Yes.

Q. Okay. [Juror No. 1], these are the questions that the Judge will ask you. The first one is, (reading) "Do you find from the evidence beyond a reasonable doubt, there is a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society."

(Emphasis added). Juror No. 2 was questioned as follows:

Q. In a capital case, the jury doesn't have a range of punishment. They're asked questions by the Judge based on the evidence they've heard. And these questions are up here on this board, and I would like to go over them with you. The first one is, (reading) "Do you find from the evidence that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?" Do you feel like if you were selected to serve as a juror in a capital murder case where you had found the defendant guilty of capital murder, you could listen to the evidence that was admitted to you in that first stage, as well as the evidence that was admitted to you in the second stage about the defendant and decide which way that evidence indicated to you that you should answer that question, whether it would be yes or no?

(Emphasis added). Juror No. 3 was questioned as follows:

Q. The first one is, (reading) "Do you find from the evidence, beyond a reasonable doubt, there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?" Do you understand that question?

A. Yes, sir.

Q. Do you feel like that if you were seated as a juror in a capital murder case, where you had found the defendant guilty, that you could listen to the evidence in the second stage about punishment, about the defendant, and consider all of the other evidence you've heard in the case, and then based on that evidence, make up your mind whether you should answer that question whether it be yes or whether it be no?

(Emphasis added). Juror No. 4 was questioned as follows:

Q. The first question is (reading) "Do you find from the evidence, beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?" Do you understand that question?

A. Yes, ma'am.

Q. The second question that would be asked -- first of all, the first question, do you have any problem, would you have any problem answering that question based on the law, based on the evidence that you hear both in the guilt/innocence phase of the trial and the punishment phase of trial, would you be able to consider all of the evidence that you hear? Would you have any problem basing that answer on only the evidence that you hear?

(Emphasis added).