Judge Michael McC _ nick - Voice For The Defense Online

The Court affirmed the judgment of theHouston [Ist] Court of Appeals, which hadreversed the conviction because the Statefailed to present sufficient evidence to supportthe enhancement paragraph. Wilsonreconfirmed that sufficiency of the evidencewould be measured by comparingthe evidence to the indictment as incorporatedinto the charge.In Franklin v. State, 693 S.W.2d 420,432 (Tex.Cr.App. 1985), the defendanturged the Court of Criminal Appeals to extendits holding in enso on "and fmd that[double] jwpardy should bar the retrial ofany offense in which the court's chargeauthorizes the conviction for an offenselesser than, but included within, the offensecharged in the indictment." DonaldGene Franklin, of recent Supreme Courtfame, argued that double jwpardy shouldbar his retrial since he was granted a newtrial after the verdict was rendered andbecause the charge submitted to the juryfailed to allege that he committed thecapital murder intentionally whiie in thecourse of committing one of the underlyingfelonies enumerated under V.T.C.A.,Penal Code, $ 19.03.Writing for a unanimous Court, JudgeMiller explained the holding in Benson asfollows:In Benson, the jury was presented witha charge that contained no error, but expandedthat which the State was requiredto prove. We found that althoughthe charge contained elements of proofnot required for conviction for the indictedoffense, the State was nonethelessrequired to prove what wascharged beyond a reasonable doubt. Itfollowed that if the evidence did notconform to the instructions as given,then the proof was insufficient to supportthe only verdict of "guilty" thatwas authorized by the charge. We heldthat there was insufficient evidence tosupport the allegations as set forth in thecharge, and entered an order of acquittal.Franklin, supra, at 432.The Court declined to extend Benson tosupport Franklin's requested finding thatdouble jeopardy should bar his retrial,especially since doing so would conflictwith Article 37.14, V.A.C.C.P.6The next case to come down the pikewas Stephens v. State, 717 S.W.2d 338(Tex.Cr.App. 1986), in which the trialcourt's charge authorized the jury to findthe defendant guilty of aggravated rape asa principal or as a party, but not to findhim guilty of the lesser included offenseof rape. "Therefore to sustain the convictionthere must be sufficient evidence thatappellant was criminally responsible forthe aggravating element of threatening, byacts, words, or deeds occurring in thepresence of the victim, to cause death orserious bodily injury." Stephens, supra, at340. As in the previously discussed cases,the State failed to prove every element ofthe charged offense, so "there was noauthority by which to transform appellant'sintent to commit rape to an 'intent to promoteor assist the commission of the offense'of aggravated rape." Stephens.supra, at 340.With respect to the function of the jurycharge, Judge Clinton wrote:A trial court's charge explains tothe jury under what circumstances andof what offense it is authorized to convict.The sujiciency of the evidenceto support a conviction must thereforebe viewed in light of the chargethe jury was given. Bensou v. State,661 S.W.2d 708, 714 (Tex.Cr.App.1982). Stephens, supra at 339 (emphasissupplied).It was concluded that the Dallas Court ofAppeals had been correct in holding thatthe evidence was insufticieut to support appellant'sconviction for aggravated rape.Then, in Dunn v. State, 721 S.W.2d325, 332 (Tex.Cr.App. 1986), JudgeTeague reiterated what Judge W. C. Davishad written in Benson, namely that thestandard by which sufficiency is measuredmust he applied to the evidence in light ofa correct charge that corresponds to the indictmentallegations. (Emphasis supplied)In short, he explained:Under Benson v. State, supra, alsosee Boozer v. State, supra, unless theevidence conforms to the above instruction,although erroneous, it is insufficientas a matter of law to support theverdict of the jury. Dnnn, supra, at 334.Without going into the details, the trialjudge in Dunn submitted an erronwuscharge to which the State did not object.Nevertheless, the State sustained its burdenof proof under the charge and defeatedDunn's claim that the evidence was insufficientto sustain the jury's verdict.Dunn is the only case in which the Stateshouldered the extra burden of'proof andmanaged to conform the evidence to anerronwus instruction to support the jury'sverdict.The Benson-Boozer debate was continuedin Fain v. State, 725 S.W.2d 200(Tex.Cr.App. 1986). The trial judge inFain iustructedthe jury at the punishmentstage concerning two enhancement paragraphs,but inadvertently required the juryto find that one of the two prior convictionsbecame fmal before it was actuallycommitted. "Relying on Benson v. State,661 S.W.2d708 (Tex.Cr.App. 1982) andOmga v. State, 668 S.W.2d701 (Tex.Cr.App. 1983), appellant claimed in the Courtof Appeals that the evidence was insufficientto support the jury's finding of true,because the trial court's instruction requireda finding of true to be predicatedon a logical impossibility." Fain, supra,at 202. Because Fain did not object to theerror at trial, the El Paso Court of Appealsapplied theAlmanu2 v. State, 686 S.W.2d157 (Tex.Cr.App. 1984) (Opinion onRehearing) analysis and found there wasno actual egregious harm leading to thedenial of a fair and impartial trial.Writing for the majority, Judge TomDavis found that the court of appeals hadnot erred in treating Fain's claim of insufficientevidence as a claim of jury chargeerror, i.e., "trial error." JudgeTomDaviswrote:In the instant case, no one maintainsthat the trial court:s instruction was"correct for the theory of the case presented."Instead, in setting out his insufficientevidence claim for the Courtof Appeals, appellant showed that thetrial court's instruction was manifestlyincorrect. Appellant's claim as presenteddid not constitute a valid claimof insufficient evidence. The Court ofAppeals did not err in addiessing insteadthe predicate claim ofjury chargeerror. Fain, supra, at 202.18 VOICE for tlre Defense I January 1989