DocketNumber： 14-09-00575-CR
Filed Date： 2/1/2011
Status： Precedential
Modified Date： 9/23/2015
Affirmed and Majority and Concurring Opinions filed February 1, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-09-00575-CR
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Jerrod Duanya Ferguson AKA Jerry Fuller, Appellant
V.
State of Texas, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 57729
CONCURRING OPINION
The majority unnecessarily analyzes an issue that appellant has not raised regarding the punishment-phase jury charge and, in the process, treats an unpublished opinion of this court as having precedential value. Though I concur in today’s decision to affirm the trial court’s judgment, I disagree with the majority’s analysis and respectfully decline to join it.
In his ninth issue, appellant asserts that the trial court “failed to do a ‘Sua Sponte Duty’ thereby abusing its discretion.” In his statement of this issue, appellant cites the part of the record containing the jury charge in the guilt/innocence phase of the trial. In his argument under this issue, appellant cites a case dealing with the jury charge during the guilt/innocence phase of the trial. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Relying on this case, appellant argues that the trial court failed in its sua sponte duty to “ensure that all of the law applicable to the criminal offense that is set out in the indictment or information is incorporated into the jury charge as well as the general admonishments, including reference to the presumption of innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” Id. Appellant underlines for emphasis in his brief the phrase “including reference to the presumption of innocence.” Notably, there is no presumption of innocence during the punishment phase of trial. See Marquez v. State, 725 S.W.2d 217, 227 (Tex. Crim. App. 1987). Appellant cites two cases regarding the jury charge during the guilt/innocence phase and no cases regarding the jury charge during the punishment phase. Appellant does not mention anything about evidence of extraneous offenses during the punishment phase or the trial court’s duty to charge the jury regarding them. Appellant twice cites the jury charge for the guilt/innocence phase and does not cite the jury charge for the punishment phase. Appellant asserts that the error alleged under the ninth issue entitles him to a reversal of the entire judgment and a new trial as to his guilt. This relief corresponds to error during the guilt/innocence phase but not to error during the punishment phase. Although the majority states that it is not clear whether appellant is challenging the jury charge in the guilt/innocence phase or in the punishment phase, it is clear that appellant is challenging only the jury charge during the guilt/innocence phase.
As the majority notes, the trial court complied with its duty to ensure that all of the law applicable to the criminal offense set out in the indictment was incorporated into the guilt/innocence jury charge, including the general admonishments referring to the presumption of innocence, proof beyond a reasonable doubt, and unanimity of the verdict. During the guilt/innocence phase the trial court has no sua sponte duty to charge the jury regarding the burden of proof as to extraneous offenses. See Delgado, 235 S.W.3d at 246. Therefore, appellant’s argument under the ninth issue lacks merit.[1]
In addressing the unassigned error, the majority finds error in the punishment-phase jury charge and conducts an analysis to determine whether there was egregious harm. There are many published cases upon which the majority could rely to conclude that the trial court’s failure to give the reasonable-doubt instruction during the punishment phase did not result in egregious harm to appellant. See, e.g., Sansom v. State, 292 S.W.3d 112, 132–34 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (trial court’s error in failing to give reasonable-doubt instruction on extraneous offenses at punishment phase did not result in egregious harm to defendant); Zarco v. State, 210 S.W.3d 816, 823–27 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no egregious harm due to trial court’s failure to give reasonable-doubt instruction on extraneous offenses during punishment phase). Rather than rely upon published cases that have precedential value, the majority chooses to rely upon an unpublished opinion from this court. See ante at pp. 14–15. Neither appellant nor the State cited this case; indeed, there is no citation to any unpublished opinions in any of the briefing in this appeal.
In criminal appeals, opinions that are not designated for publication have no precedential value.[2] See Tex. R. App. P. 47.7 & 2008 cmt.[3] That means unpublished cases are not part of Texas jurisprudence and cannot be either binding or persuasive authority. See State Farm Lloyds v. Borum, 53 S.W.3d 877, 889 & n.7 (Tex. App.—Dallas 2001, pet. denied) (refusing to consider unpublished opinion because such opinions have no precedential value and are not authority); Frizzell v. Cook, 790 S.W.2d 41, 43 (Tex. App.—San Antonio 1990, pet. denied) (equating an opinion withdrawn by the issuing court with an unpublished opinion and stating that both withdrawn and unpublished opinions have no precedential value and should not be considered by appellate courts). Unpublished opinions contain the reasons for a court’s prior decision; but, the reasoning in these opinions is non-jurisprudential and is not entitled to respect and consideration as a precedent decided by an appellate court. See Borum, 53 S.W.3d at 889 & n.7; Frizzell, 790 S.W.2d at 43.
Counsel may cite unpublished opinions,[4] but appellate courts may not treat them as binding or persuasive authority. See Tex. R. App. P. 47.7 & 2008 cmt.; Borum, 53 S.W.3d at 889 & n.7; Frizzell, 790 S.W.2d at 43; see also Black’s Law Dictionary 1195 (7th ed. 1999). Though the majority correctly states that the unpublished opinion has no precedential value, the majority then states that the reasoning of that opinion is persuasive and that the majority has decided to “adopt [this reasoning] here.” Ante at p. 14. In so doing, the majority improperly treats this unpublished opinion as a persuasive authority having precedential value. See Borum, 53 S.W.3d at 889 & n.7. The better course would be to cite the available published opinions on this issue or, better yet, not address the unassigned error at all.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Anderson, Frost, and Brown. (Anderson, J., majority).
Publish — Tex. R. App. P. 47.2(b).
[1] Under the ninth issue, appellant also repeats the argument regarding inferences and the guilt/innocence jury charge that he makes under his seventh issue. This argument also lacks merit.
[2] This raises the issue of what “no precedential value” means. The plain meaning of “precedent” is “[a] decided case that furnishes a basis for determining later cases involving similar facts or issues.” Black’s Law Dictionary 1195 (7th ed. 1999). A “binding precedent” is “[a] precedent that a court must follow,” and a “persuasive precedent” is “[a] precedent that a court may either follow or reject, but that is entitled to respect and careful consideration.” Id.
[3] The comment to the 2008 revisions to Rule 47 states: “Effective January 1, 2003, Rule 47 was amended to prospectively discontinue designating opinions in civil cases as either ‘published’ or ‘unpublished.’ Subdivision 47.7 is revised to clarify that, with respect to civil cases, only opinions issued prior to the 2003 amendment and affirmatively designated ‘do not publish’ should be considered ‘unpublished’ cases lacking precedential value. All opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value. The provisions governing citation of unpublished opinions in criminal cases are substantively unchanged. Subdivisions 47.2 and 47.7 are amended to clarify that memorandum opinions are subject to those rules.”
[4] Since January 1, 2003, counsel have been free to cite unpublished opinions in any way they wish; but, they are required to add the notation “(not designated for publication)” in the citation. See Tex. R. App. P. 47.7 & 2008 cmt.