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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
Under article 36.19 of the Texas Code of Criminal Procedure, as construed in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), error in the jury instructions is sometimes “fundamental.” This means reversal of a conviction is required even if the defendant failed to preserve the error in the trial court by objection or request for special instructions. In fact, reversal is required even if the defendant, after reviewing the proposed instructions, affirmatively announced that the defense had no objection. Bluitt v. State, 137 S.W.3d 51 (Tex. Crim. App. 2004).
A trial judge has the obligation to instruct the jury, without a request from either party, regarding only “the law applicable to the case.” Tex. Code Crim. Proc. art. 36.14. At least some defensive matters are not “law applicable to the case.” Therefore a trial court’s failure to instruct on these defensive matters cannot give rise to fundamental error under Almanza. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998) (any unpreserved error in failing to instruct on mistake of fact cannot be fundamental error under Almanza). See also Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (defense of third person was defensive matter and trial court’s failure to instruct on it could not be fundamental error under Posey); Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007) (instruction on state’s burden of proof on extraneous offenses was not required by Almanza).
Fundamental error under Almanza nevertheless has some impact in the context of defensive matters. If, without a defense request, a trial judge gives an instruction on a defensive matter, error in the substance of that instruction can be fundamental. Barrera v. State, 982 S.W.2d 415, 416–17 (Tex. Crim. App. 1998).