Another Appellate Victory! (Part Two)

Court of Appeals of Texas,
Dallas.
Roderick PARKER, Appellant v.
The STATE of Texas, Appellee.
No. 05-10-00878-CR.

March 15, 2013.
On Appeal from the 397th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 059391.
Micah Belden, Sherman, TX, for Roderick Parker.

Karla Baugh Hackett, Grayson County Crim. Dist. Atty.’s Office, Sherman, TX, for The State of Texas.
Before Justices BRIDGES, RICHTERFN1, and MURPHY.

FN1. The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
OPINION ON REMANDhttps://www.shermancriminallawyer.com/cgi-bin/mt.cgi?__mode=view&_type=entry&blog_id=462
Opinion by Justice RICHTER.

*1 A jury convicted appellant of retaliation and the court sentenced him to eight years’ imprisonment and a $500 fine. In his original brief on appeal, appellant raised four issues asserting the trial court erred in instructing the jury. On original submission, we overruled all of appellant’s issues and affirmed the trial court’s judgment. We observed that although appellant’s second issue asserted he suffered harm because the definition does not correctly state the law, he characterized this assertion as material to the harm analysis rather than as the charge error that caused the harm.

On appellant’s petition for discretionary review, the Texas Court of Criminal Appeals concluded we should have considered “appellant’s claim that the definition of the term unlawful was jury charge error in general.” Parker v. State, No. PD-098-12, 2012 WL 1438901 at *1 (Tex.Crim.App.2012) (per curiam) (not designated for publication). The Court vacated our judgment and remanded the case to this court “to consider appellant’s second issue on appeal.” Id. Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex.Crim.App.1990). Neither party availed itself of the opportunity to provide further briefing. Having considered appellant’s second issue as framed by the court of criminal appeals, for the reasons that follow, we reverse the trial court’s judgment and remand for a new trial.

We review allegations of jury charge error under the standard enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). An erroneous or incomplete jury charge does not result in automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). If error occurred, reversal is required if the error is “calculated to injure the rights of the defendant,” which means that the accused has suffered some harm from the error. Almanza, 686 S.W.2d at 171. Thus, an error that has been properly preserved will require reversal only if the error is not harmless. Id. The harm suffered must be more than merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex.Crim.App.2012). We evaluate the issue of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.