Johnny Silva JIMENEZ, Appellant, v. The STATE of Texas, 32 S.W.3d 233

WOMACK, J., delivered the opinion of the Court, in which MANSFIELD, PRICE, HOLLAND, and KEASLER, JJ., joined. The question in this case is, what standard of harmless error applies to error in a court’s charge that was not objected to, and that is claimed to violate a constitutional provision? We hold that the applicable standard is that provided by

article 36.19 of the Code of Criminal Procedure: “the judgment shall not be reversed.. .unless it appears from the record that the defendant has not had a fair and impartial trial.” The appellant, indicted for attempted capital murder, was found guilty of aggravated assault committed on September 11, 1995. The court’s charge at punishment told the jury that the appellant “may earn time off the period of incarceration imposed through the award of good conduct time.” This charge tracked

article 37.07,

section 4(

a) of the Code of Criminal Procedure. The appellant did not object to the charge. The jury assessed punishment of fifteen years’ imprisonment. On appeal the appellant presented the point that this charge was erroneous, since an award of good conduct time would not count toward his release on mandatory supervision because his offense is listed in former

Article 42.18,

section 8(

c) of the Code of Criminal Procedure. The First Court of Appeals agreed “that the charge on the accumulation of good-conduct time, as given in this case, was error.” See Jimenez v. State, 992 S.W.2d 638, 688 (Tex.App.—Houston [1st Dist.] 1999). The appellant argued in the court of appeals that the incorrect charge denied him due process of law and due course of law. The court of appeals agreed, but found that the error was harmless. It said: We must determine, under

article 36.19 of the Texas Code of Criminal Procedure, whether the error resulted in such harm that it requires reversal of the conviction. Because appellant did not object to the court’s charge to the jury, it is appellant’s burden on appeal to show the erroneous charge resulted in such egregious harm that he did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984). Ibid. The court held that the appellant did not show such harm. Id. at 639. Both the appellant and the State petitioned for discretionary review. The appellant asks us to hold that the court of appeals was wrong to apply to a constitutional error the standard of harm in

article 36.19 instead of the beyond-a-reasonable-doubt standard in Rule of Appellate Procedure 44.2(a). The State asks us to hold that the court of appeals erred in holding that the charge denied due process of law and due course of the law. We first take up the issue in the appellant’s petition.

A party is not excused from the procedural requirements for objecting at trial merely because an error involves a constitutional right. “It has repeatedly been held that even constitutional guarantees can be waived by failing to object properly at trial.” All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say “that even constitutional guarantees can be waived by failure to object properly at trial,” we mean that some, not all, constitutional rights may be forfeited.

On the other hand, certain, relatively few, rights must be protected by the system’s impartial representatives unless expressly waived by the party to whom they belong. Determining which category a right occupies will usually settle the question of procedural default in the context of a particular case. The appellant does not contend that the right in question was one that must be implemented unless he expressly waived it. In particular, the requirements for objecting to the court’s charge at trial were established by the enactment of articles 36.14 through 36.17 of the Code of Criminal Procedure.

Standards for review of error in the court’s charge were established by the enactment of

article 36.19. As this court held in Almanza,

article 36.19 established two standards of review for errors in the court’s charge: one standard for errors that were objected to and another for those that were not objected to. If an appellant did object to the error in the charge, the statutory standard of harmlessness for most erroneous charges is that “the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant”; in other words, unless the appellant suffered “some harm.” That statutory standard of review does not apply to some kinds of charge errors that were objected to.

If the error was a violation of the federal constitution that did not amount to a structural defect, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. That standard was the one the court of appeals applied in this case. But the “beyond-a-reasonable-doubt” standard for constitutional errors does not apply in this case because the error was not objected to. In Chapman v.

California, the Supreme Court held that the courts of states are required to apply the “beyond-a-reasonable-doubt” standard to federal constitutional errors because: Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied.

With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent — expressly created by the Federal Constitution itself — is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule.

But in order to invoke the protection of this federal rule in a state court, the appellant must have complied with the state court’s procedural rule for preserving and presenting error. “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” If the right is forfeitable, as most rights are, an appellant who did not comply with the rales for preserving and presenting error must rely on the forum’s rules for consideration of unpreserved error.

Some jurisdictions refuse to consider un-preserved error. Most jurisdictions consider unpreserved error under rules for “plain error.” The standards for plain error are different from those for preserved error. The standards for harm may be higher, and the burden of showing harm different. Even when the higher standards are met, the appellate court may have discretion whether to consider the error at all, extending review only to very serious errors. The traditional term in Texas’ criminal law that corresponds to “plain error” is “fundamental error.”

Article 36.19 establishes the standard for fundamental error in the court’s charge: “the judgment shall not be reversed.. .unless it appears from the record that the defendant has not had a fair and impartial trial.” We have paraphrased this statutory standard in other terms at different times. This was the standard that the court of appeals applied in this case, and it was correct to do so. If the appellant had objected to the court’s charge, and if it were erroneous, an appellate court would have been required to apply the appropriate standard.

The choice of standard would have depended on whether the error violated a right under the federal constitution, among other things. But since the appellant did not preserve those issues for appellate review, the appropriate standard is the statutory one for fundamental error in the charge. Our holding that the court of appeals did use the correct standard makes moot the issue presented in the State’s petition, which is dismissed. The judgment of the court of appeals is affirmed. Presiding Judge McCORMICK and KELLER, J., filed concurring opinions. MEYERS and JOHNSON, JJ., dissent. .

"In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is listed in

Section 3g(a)(l),

Article 42.12, of this code or if the judgment contains an affirmative Ending under

Section 3g(a)(2),

Article 42.12, of this code, unless the defendant has been convicted of a capital felony the court shall charge the jury in writing as follows: "Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation.

If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct tíme earned by the prisoner. “It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. "Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.

If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted. "It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. "You may consider the existence of the parole law and good conduct time.

However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.” Tex.Code Crim. Proc. art. 37.07 § 4(a). . "A prisoner may not be released to mandatory supervision if the prisoner is serving a sentence for an offense and the judgment for the offense contains an affirmative finding under Subdivision (2), Subsection (a),

Section 3g,

Article 42.12, of this code or if the prisoner is serving a sentence for: (1) a first degree felony under

Section 19.02, Penal Code (Murder); (2) a capital felony under

Section 19.03, Penal Code (Capital Murder); (3) a first degree felony or a second degree felony under

Section 20.04, Penal Code (Aggravated Kidnapping); (4) a second degree felony under

Section 22.011, Penal Code (Sexual Assault); (5) a second degree or first degree felony under

Section 22.02, Penal Code (Aggravated Assault); (6) a first degree felony under

Section 22.021, Penal Code (Aggravated Sexual Assault); (7) a first degree felony under

Section 22.04, Penal Code (Injury to a Child or an Elderly Individual); (8) a first degree felony under

Section 28.02, Penal Code (Arson); (9) a second degree felony under

Section 29.02, Penal Code (Robbery); (10) a first degree felony under

Section 29.03, Penal Code (Aggravated Robbery); (11) a first degree felony under

Section 30.02, Penal Code (Burglary), if the offense is punishable under Subsection (d)(2) or (d)(3) of that section; of (13) [szc] a felony for which the punishment is increased under

Section 481.134 (Drug-Free Zones), Health and Safety Code.” Act of June 19, 1993, 73rd Leg., R.S., ch. 888, § 2, 1993 Tex. Gen. Laws 3530, 3531 and Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 6.02, 1993 Tex. Gen. Laws 3586, 3761, both repealed by Act of June 1, 1995, 74th Leg., R.S., ch. 263, § 1, 1995 Tex. Gen. Laws 2592. Now see Tex. Gov't Code § 508.149(a). The appellant’s offense was a second degree felony under Penal Code

section 22.02, and the judgment contains an affirmative finding regarding a deadly weapon under Code of Criminal Procedure

article 42.12,

section 3g(a)(2). .Considering the question of harmless error in the court's charge, we recently held, "We do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm.... No party should have a burden to prove harm from an error, and there ordinarily is no way to prove ‘actual’ harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless-error decision.” Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Cr. App.2000).

The court of appeals did not have the benefit of this decision. The appellant asked us to consider only whether the court of appeals used the correct standard, not whether it used the standard correctly. Further discussion of the question of a burden to show harm is not necessary to the decision of the case. . "Constitutional Error.

If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” TexR.App. P. 44.2(a). . Gibson v. State, 516 S.W.2d 406, 409 (Tex.Cr.App.1974). . Marin v. State, 851 S.W.2d 275, 279 (Tex.Cr.App.1993) (citation omitted). . "Subject to the provisions of

Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.

Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided.

The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury. Compliance with the provisions of this

Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over-ruling defendant's exceptions or objections to the charge.” Tex.Code Crim. Proc. art. 36.14. ‘‘Before the court reads his charge to the juiy, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury.

The requirement that the instructions be in writing is complied with if the instructions are dictated to the court reporter in the presence of the court and (he state’s counsel, before the reading of the court’s charge to the jury. The court shall give or refuse these charges. The defendant may, by a special requested instruction, call the trial court’s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court’s charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.

Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof, and the jury shall not be advised that it is a special requested charge of either party. The judge shall read to the jury only such special charges as he gives.

When the defendant has leveled objections to the charge or has requested instructions or both, and the court thereafter modifies his charge and rewrites the same and in so doing does not respond to objections or requested charges, or any of them, then the objections or requested charges shall not be deemed to have been waived by the party making or requesting the same, but shall be deemed to continue to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.” Id. art. 36.15 "After the judge shall have received the objections to his main charge, together with any special charges offered, he may make such changes in his main charge as he may deem proper, and the defendant or his counsel shall have the opportunity to present their objections thereto and in the same manner as is provided in

Article 36.15, and thereupon the judge shall read his charge to the jury as finally written, together with any special charges given, and no further exception or objection shall be required of the defendant in order to preserve any objections or exceptions theretofore made. After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony, and in the event of such further charge, the defendant or his counsel shall have the right to present objections in the same manner as is prescribed in

Article 36.15. The failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review either in the trial court or in the appellate court.” Id. art. 36.16 "The general charge given by the court and all special charges given or refused shall be certified by the judge and filed among the papers in the cause.” Id. art. 36.17. .

"Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.” Tex.Code Crim. Proc. art. 36.19. . Id. . See Almanza, 686 S.W.2d at 171. . See Beathard v.

State, 767 S.W.2d 423, 430 (Tex.Cr.App.1989). . The statutory standards do not apply to two other kinds of error in the charge even though they were objected to: structural error and an unconstitutional statute. Some federal constitutional errors that “are structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards," are not subject to the harmless-error doctrine. Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The error in this case is not a structural defect in the constitution of the trial mechanism.

The Supreme Court has said, “We have found structural errors only in a very limited class of cases: a total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of defendant's race, the right to self-representation at trial, the right to a public trial, [and an] erroneous reasonable-doubt instruction to the jury.” Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations omitted).

If the error in the charge was “the application of an unconstitutionally infirm statute to a defendant,” the general harmless-error test for errors other than charge errors applies. See Rose v. State, 752 S.W.2d 529, 553 (Tex.Cr.App.1987). The charge in this case did not result from the application of an unconstitutionally infirm statute. The reference to an "unconstitutionally infirm statute” was to one that was "passed in contravention of the Texas Constitution’s due course and separation of powers provisions.” Ibid, (emphasis added).

Such a statute (in that case, the first parole-instruction statute) is void and its application in any trial would be unconstitutional. The Court said that such a " ‘statutory’ error should be distinguished from charging error as envisioned by

Article 36.19...and Alman-za,” because it did not involve a violation of

article 36.14. See ibid. On the other hand, as we have recently held, this exception for “statutory” error does not include the failure to comply with a statute; such an error is a violation of

article 36.14, which requires a charge "setting forth the law applicable to the case,” and the

article 36.19 standard does apply. See Huizar v. State, 12 S.W.3d 479, 483-85 (Tex.Cr.App.2000). Because statute in this case was not enacted in contravention of the Texas Constitution's due course of law and separation of powers provisions, see Oakley v. State, 830 S.W.2d 107 (Tex.Cr.App.1992), and it is not inapplicable in every trial, it is not one of the type of "statutory” errors that we defined in Rose, the first parole-charge case. . Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . United States v.

Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). . See Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, 5 Criminal Procedure § 27.5(d) (2d ed.1999) (citing decisions from Iowa and Kansas). . See ibid. . See Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. . See id. at 732, 735-37, 113 S.Ct. 1770 (explaining that federal courts review only plain errors that result in a miscarriage of justice or that seriously affect the fairness, integrity, or public reputation of judicial proceedings). .

As the comment to Texas Rule of Criminal Evidence 103(

d) said, “In subsection (d), the federal rule refers to plain error. This has been changed to fundamental error, which conforms to Texas practice." See generally George E. Ddc & Robert O. Dawson, 43 Texas Practice — Criminal Practice and Procedure § 42.05 (1995). . Almanza, 686 S.W.2d at 172. . "While we have discerned the basic test for fundamental error, the ‘fair and impartial trial' phraseology still serves as only a general admonition that fundamental error must involve 'egregious harm’ in trial.

The same idea is contained in the occasional statements that a fundamental error must ‘go to the very basis of the case,’ deprive the accused of a ‘valuable right,’ or 'vitally affect his defensive theory.’ " Ibid, (citations omitted). . See supra, note 12. . The concurrence says our decision is taken "to make our lives easier,” post at 241, and that our decision fails to "resolve conflicts among various intermediate appellate courts,” ibid., which means that "similarly situated defendants may be treated differently depending on which judicial district their case is in,” post at 241.

The foremost question in this case, and the only one that is well presented, is the standard of harm for constitutional error in the charge that was not objected to. Our addressing, on this record, the question of whether the charge was erroneous would be contrary to several principles that guide appellate courts.

Issues that are not necessary to the resolution of the case should not be addressed; issues that are not properly presented because of procedural failures in the trial court should not be addressed; and constitutional issues should not be addressed if the case can be resolved on nonconstitutional grounds. Following those principles does not make our lives easier, since it would be easier to write on two issues at once, but it is the better procedure. The issue of unresolved conflicts among the courts of appeals is far from pressing.

No defendant in any district has been awarded a new trial because of the jury charge that is before us. The case now before us is from the only court of appeals that has held the charge to be a constitutional error, doing so without any recorded consideration of the decisions to the contrary in the other courts, see Edwards v. State, 10 S.W.3d 699 (Tex.App.—Houston [14th Dist.] 1999, pet. filed); Luquis v. State, 997 S.W.2d 442 (Tex.App.—Beaumont 1999, pet. filed); Boston v. State, 965 S.W.2d 546 (Tex.App.—Houston [14th Dist.] 1997, no pet.); Martinez v. State, 969 S.W.2d 497 (Tex.

App.—Austin 1998, no pet.); Garcia v. State, 911 S.W.2d 866 (Tex.App.—El Paso 1995, no pet.).