Maciel v. State

692 S.W.3d 639

Bethany Grace MACIEL, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-18-00586-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed June 15, 2023.

Discretionary Review Granted October 11, 2023

On appeal from the County Court at Law No. 1 of Brazos County, Texas, Hon. Amanda Matzke, County Judge.

ATTORNEY OF RECORD FOR THE APPELLANT: Jacob Spiegelhauer, James & Reynolds, 1716 Briarcrest Dr., Suite 505, Bryan, TX 77802-2794.

ATTORNEYS OF RECORD FOR THE APPELLEE: Earl Gray, George David Higginson, Brazos County Attorney’s Office, 300 E. 26th St., Ste. 1300, Bryan, TX 77803-5361, John Messinger, Stacey M. Soule, Office of the State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, TX 78711-3046.

Before Justices Benavides, Tijerina, and Pena

OPINION ON REMAND

Opinion on Remand by Justice Tijerina

This case is on remand from the Texas Court of Criminal Appeals. On direct appeal, we affirmed the trial court’s denial of a necessity instruction on the basis that appellant Bethany Grace Maciel did not admit to committing the offense of driving while intoxicated (DWI); thus, she was not entitled to the instruction.¹ See Maciel v. State, No. 13-18-00586-CR, 2020 WL 4035513 (Tex. App.—Corpus Christi–Edinburg 2020) (mem. op., not designated for publication), rev’d, 631 S.W.3d 720 (Tex. Crim. App. 2021). On October 6, 2020, the Texas Court of Criminal Appeals reversed our judgment and remanded the matter so that we could conduct a harm analysis regarding the trial court’s failure to provide the jury with a necessity instruction. See Maciel v. State, 631 S.W.3d 720, 726 (Tex. Crim. App. 2021). We affirm.²

I. Background

On January 31, 2016, Maciel, her brother Jonathan, and his wife were coming back from a night out drinking at a bar in Northgate (a local complex in College Station). It was undisputed that all three were intoxicated.³

At trial, Officer Philip Shaw with the Texas A&M University Police Department testified that around 12:55 a.m., he located Maciel's vehicle stopped in the middle lane of traffic. He made contact with Maciel in the driver’s seat while the engine was still running, and he smelled a burning mechanical odor emanating from the vehicle. After failing field sobriety tests (SFSTS), Maciel was arrested for DWI.

Maciel requested that the trial court instinct the jury bn the defense of necessity. The State responded that Maciel could not receive the instruction that she was driving while intoxicated out of necessity because she argued that she was not operating the vehicle. The trial court denied Maciel’s request. On appeal, we held that the trial court did not err in refusing the jury charge on necessity because Maciel’s defense was that she did not operate the vehicle. The court of criminals appeals determined that Maciel was nevertheless entitled to the instruction because "a jury could reasonably infer that [Maciel] operated a motor vehicle while intoxicated" without an admission from her based on the "totality of [her] defensive evidence," which included Officer Shaw’s testimony and his body cam video. Maciel, 631 S.W.3d at 725. We now conduct a harm analysis.

II. Scope of Review

The court of criminal appeals concluded that Maciel’s "testimony was sufficient to admit commission of DWI," and that "a jury could reasonably infer that [Maciel] operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger." Id. The dissent appears to conclude that because the court of criminal appeals found the evidence sufficient to raise the affirmative defense of necessity, that same evidence must be sufficient to find harm under the law of the case doctrine. However, the issue of whether Maciel was harmed by the trial court’s denial of the necessity instruction was not properly before the Court. See id. The aforementioned statements were limited to the narrow issue of whether she was entitled to a necessity instruction. See id. Therefore, we cannot conclude that the high court has already determined that the record contains sufficient evidence to find actual harm because a court’s review for error in the context of a denial of a necessity instruction cannot substitute for a court’s review for harm. See Campbell v. State, 664 S.W.3d 240, 254 (Tex. Crim. App. 2022) (providing that a harm analysis requires a consideration of the full Almanza factors in view of the totality of the record); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (setting out how we analyze harm in jury charge error).

[1–5] In assessing whether Maciel was entitled to the instruction, the Court viewed the evidence in the light most favorable to the requested instruction, as it was required to do based on extensive authority. See Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021) (Rodriguez I); Dugar v. State, 464 S.W.3d 811, 821–22 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). A defendant is entitled to an affirmative defense when a defendant shows the "minimum quantum of evidence necessary to support a rational inference." Rogers v. State, 664 S.W.3d 843, 849 (Tex. Crim. App. 2022). However, the pertinent authority on assessing whether a defendant is harmed by the trial court’s failure to include an instruction in the jury charge requires us to apply the test as articulated in Almanza. See 686 S.W.2d at 171. This test does not require the Court to view the evidence in the light most favorable to the defense. See id. Thus, while evidence may support a conclusion that the defendant is entitled to an affirmative defense, we disagree with the dissent that the "minimum quantum of evidence" in assessing error automatically triggers a finding of harm. See id. (an erroneous jury charge does not result in automatic reversal of a conviction); see also Fox v. State, No. 13-03-230-CR, 2006 WL 2521622, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2006, pet. ref'd) (mem. op., not designated for publication) ("An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction."). Simply put, while a "minimum quantum of evidence" may be sufficient to entitle a defendant to an affirmative defense instruction, it may not be sufficient to warrant the finding of harm under Almanza. See Maciel, 631 S.W.3d at 726 (Newell, J., concurring) ("When conducting a harm analysis, the reviewing court makes its own assessment as to what degree of likelihood exists as to the prejudicial or non-prejudicial impact of a particular error."). If the trial court’s failure to include a necessity defense in the jury charge clearly or plainly harmed Maciel, the Court of Criminal Appeals would have reached the issue under the theory of judicial economy. See Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (stating that ordinarily the Court would not reach an issue the appellate court did not address "if the resolution of the issue is ‘clear’ or ‘plain,’ then judicial economy justifies this Court in reaching the issue in the first instance"); Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013) (finding that the correct resolution of harm analysis was "clear," so judicial economy justified this Court in addressing it rather than remanding to the court of appeals); Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) ("plainly harmless" error could be reviewed in first instance by this Court). Because the court of criminal appeals did not conduct a harm analysis and did not hold that Maciel was harmed by the denial of a necessity instruction, we disagree with the dissent that we are constrained by the law of the case doctrine. See State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App. 2014). Accordingly, we will conduct a harm analysis—as we were instructed to do. See Rodriguez v. State, 524 S.W.3d 389, 391 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (Rodriguez II) ("Although the absence of an instruction for a confession-and-avoidance defense, such as necessity or self-defense, is often harmful because the appellant admits all elements of the offense, we must always perform a record-specific analysis for harm.").

III. Standard of Review

[6–10] When jury charge error is preserved at trial, we must reverse if the error caused some harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171. "Some harm" means actual harm and not merely a theoretical complaint. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). Although there is no burden of proof associated with the harm evaluation, reversal is required if the error was calculated to injure the defendant’s rights. Reeves, 420 S.W.3d at 816. Failure to instruct on a confession-and-avoidance defense is rarely harmless "because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense." Rogers v. State, 550 S.W.3d 190, 192 (Tex. Crim. App. 2018). But when "a record reveals a risk of harm that is so small that it may properly be characterized as not ‘remotely significant,’ or where the risk of harm is ‘almost infinitesimal,’ any harm resulting from the error is only theoretical harm." French v. State, 563 S.W.3d 228, 235–36 (Tex. Crim. App. 2018).

[11, 12] "The harm evaluation entails a review of the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel and other relevant information." Rogers, 550 S.W.3d at 192; Almanza, 686 S.W.2d at 171. "In ascertaining whether there is harm, appellate courts ‘focus on the evidence and record to determine the likelihood that the jury’ would have concluded that the defense applied had it been given the instruction." Chase v. State, 418 S.W.3d 296, 301 (Tex. App.—Austin 2013), aff'd, 448 S.W.3d 6 (Tex. Crim. App. 2014) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).

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