Judge Michael McC _ nick - Voice For The Defense Online

new trial. Since it was the trial court thaterred when it gave the faulty instructionto the jury, "the only proper remedy isto reverse and remand for a new trial."Boozer, supra, at 613. Judge McCormick'sdissent was joined by three other judgesof the Court.With such disparate pints of view dividingthe Court, the Statejustifiably filed itsmotion for leave to file a motion forrehearing. The Court denied the State'smotion, although several opinions werefiled both in support and in dissent of theCourt's action. Judge Clinton wrote to concurin the denial of the motion, reemphasizingthat "when the defendant, the Stateand the trial judge all agree as to what mustbe proved in a prosecution, yet the evidencefails to measure up, the State has hadits 'bite of the apple' since being given afair opportunity to marshall the evidencenecessarily includes a comprehensive electionof exactly what that evidence mustestablish." Boozer, supra, at 614. JudgeClinton concluded that there was no "error"other than insufficiency of the evidenceand that the State should not beallowed to complain on appeal that its"critical choice to acquiesce in the burdenimposed on it in the trial court, constituteda critical 'error' entitling it successively toprosecute a citizen." Boozer, supra, at614.Judge Campbell also concurred in theCourt's denial of the State's motion forrehearing. He felt, "[alfter carefully reexaminingthe issue in this case," that thecause was correctly decided on originalsubmission. Nevertheless, he complained:However, the majority on original submissionfails to define the crucial phrase"reviewable rulings of the trial court,"Boozer v. State, No. 402-82, Slip op.at 6, quoting Ortega v. State, 668S.W.2d 701, 705, no. 10 (1984), andtherefore fails to give the bench and baradequate guidance in determiningwhether appellate courts will permitretrials in cases where the State requests,but does not receive, a chargewhich correctly sets for the State'sburden of proof under the indictmentand facts of the case. Boozer, supra, at616.Judge Campbell cogently argued that inthe instant case the State shouldered agreater burden of proof by acquiescing ina jury charge requiring it to corroboratethe testimony of its key witness, which theState could not do. However, "[wlhen theState does make known its complaint to thetrial judge concerning the burden allocatedto it by the charge, it not only allows thetrial judge to correct the charge then andthere, but also notifies appellate courts thatthe State is not volunteering to shoulderany greater burden of proof than is requiredby the indictment and the evidencepresented in the case." Boozer, supra, at616. If the State follows this course of actionand the trial judge nevertheless insistson making the State shoulder a greaterburden of proof than required by the law,Judge Campbell "would hold that allrulings on the State's requested specialcharges pursuant to Art. 36.15, [V.A.C.c.P.] are re~iewable."~ Boozer, supra, at616. Such an error would then be considered"trial error" and the State wouldbe allowed to retry an accused, providedit complies with Article 36.15, supra. Thiswas essentially what Judge Clinton hadargued in Ortega, supra, at 705, n. 10.Judge Campbell would not, however,agree with the majority opinion's "implication"that the jury charge may not bereviewed unless the accused first raises theissue. He concluded:Thus, I don't think that reviewing theState's requested special charges is evenremotely tantamount to allowing theState to appeal. The function of the requestedspecial charge on appeal in thesufficiency context is to allow the appellatecourt to determine whether theevidence is insufficient because theState "bit offmore thanit could chew,"or because the trial judge erroneouslyforced the State to prove somethingwhich was not necessary under the lawnor under the evidence adduced at trial.In either situation, the decision toreverse or affirm is based on the chargeas given to the jury. Only the defendant'schallenge to the sufficiency of theevidence occasions appellate review ofthe State's requested special charges,and then the purpose of review is solelyto determine whether a retrial is permittedunder Burks v. United States,437 US. 1,98 S.Ct. 2141,57 L.Ed.2d1 (1978) and Greene v. Massey, 437U.S. 19,98S.Ct.2151,57L.Ed.2d15(1978). Allowing the State, in fact evenencouraging the State, to prevent adefendant from obtaining appellaterelief to which that defendent is not constitutionallyentitled is simply not thesame as allowing the State to appealfrom an adverse outcome in the trialcourt. Boozer, supra, at 617 (emphasisin original).Hardly a lone dissenter, Presiding JudgeOnion filed his dissent to the denial of theState's motion for rehearing, in whichthrcc othcr membcrs of thc Gurt joined.The Presiding Judge initially nnted that thctrial court had not erred in overrulingBoozer's motion for instructed verdict,since Margaret Wilson was not an accomplicewitness under Article 38.14, supra,and therefore her uncorroborated testimonyalone could support the conviction."This should have ended the matter."Boozer, supra, at 618. According to JudgeOnion the court of appeals "sua spontebroadened the contention and did not mentionat all the motion for instructed verdictset forth in appellant's only ground oferror." Boozer, supra, at 618.The court [of appeals] stated, "Appellant'ssole ground of error is that theevidence was insufficient to sustain theconviction because the same was basedupon the uncorroborated testimony ofan accomplice witness." Article 38.14,V.A.C.C.P.***The Court of Appeals agreed the evidencewas insufficient to corroborateWilson's testimony if she was an accomplicewitness, but held that in lightof Easter [536 S.W.3d 223 (Tex.Cr.App. 1976)], that Wilson could not beprosecuted as a party to the burglary,and was not an accomplice witness. Theclaim of insufficient evidence was rejected.Boozer, supra, at 618.Boozer then "switched" from his originalcontention on appeal to alleging that thecourt of appeals erred in denying him thebenefit of the finding by the trial court thatthe witness was an accomplice as a matterof law. It was on this basis that Boozer'spetition for discretionary review was16 VOlCEfor the Defense I Januq 1989