author: Justice O’NEILL

text:
    Robinetta WILKINS, Petitioner, v. The METHODIST HEALTH CARE SYSTEM, Respondent.
    No. 03-0750.
    Supreme Court of Texas.
    Argued Sept. 8, 2004.
    Delivered March 11, 2005.
    Rehearing Denied May 13, 2005.
    Roy Alan Camberg, The Camberg Law Firm, Timothy F. Lee, Ware, Jackson, Lee & Chambers, L.L.P., Jamie Penton Cooper, Ware, Snow, Fogel & Jackson, L.L.P., Houston, Marshall J. Simien, Jr., The Sim-ien Law Firm, Lake Charles, LA, for Petitioner.
    Oscar Luis De la Rosa, The De la Rosa Law Firm, Stephen Douglas Pritchett, Vinson & Elkins, L.L.P., Houston, for Respondent.
   Justice O’NEILL

delivered the opinion of the Court.

In this case, the trial court granted the defendant’s motion for summary judgment, but then granted the plaintiffs motion for new trial, reconsidered the summary-judgment motion and the additional evidence and argument plaintiff offered in response, and again granted summary judgment in the defendant’s favor. We must decide whether the plaintiffs motion for new trial, which was granted before the second judgment was signed, operated to extend the appellate timetable. We hold that, because a motion for new trial that is granted cannot assail a later-signed judgment, it did not. Accordingly, we reverse the court of appeals’ judgment and dismiss the appeal for lack of jurisdiction.

I

Robinetta Wilkins underwent gall bladder surgery at Methodist Hospital. During the procedure, a surgical instrument became dislodged in her abdomen, and a second incision was required to remove the instrument. Wilkins sued Methodist Health Care System d/b/a Methodist Hospital System (the “System”) shortly before the statute of limitations expired and served the System’s registered agent with citation. She also brought products liability claims against Aesculap, Inc., the manufacturer of the surgical instrument, but Aesculap was dismissed because limitations had already run on those claims. About a year after Wilkins filed suit, the System filed an amended answer asserting that Wilkins’s claims were barred by limitations because she had sued the wrong entity and that her health care liability claims “should have been directed at The Methodist Hospital, which is an entirely separate corporation.” Wilkins amended her petition to add The Methodist Hospital (the “Hospital”) as a party and served the petition on all attorneys of record, but she never served the Hospital with citation. The System and the Hospital had the same registered agent.

The System moved for summary judgment, arguing that it was not a health care provider, that it had no involvement in Wilkins’s health care and owed her no duty of care, and that Wilkins “incorrectly sued The Methodist Health Care System, instead of The Methodist Hospital,” which was a separate corporation. The System also contended that Wilkins failed to add the Hospital as a defendant until after limitations had expired, and that the Hospital had never been served with citation and had not appeared in the case.

Wilkins responded, contending she had sued the correct defendant and simply misnamed it. She also argued that, even if she had initially sued the wrong entity, limitations did not bar her suit against the Hospital under this Court’s decision in Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975), because the Hospital was cognizant of the facts of the suit; it had not been misled or placed at a disadvantage in obtaining relevant evidence to defend the suit; it had a business relationship with the named defendant; and there was a fact question as to whether the Hospital and the System made a conscious effort to confuse the public, and Wilkins personally, as to then-respective identities.

The trial court granted the motion for summary judgment, entering a take-nothing judgment in favor of the System and dismissing without prejudice Wilkins’s claims against the Hospital because it “was never served.” Wilkins timely filed a “Motion for New Trial and for Reconsideration of Defendant’s Motion for Summary Judgment,” asserting that the System’s motion for summary judgment was untimely filed and that the trial court “erred in granting [the] motion on the basis of improper service because that finding is against the great weight and preponderance of the evidence and is manifestly unjust.” She attached new evidence that had not been submitted with her opposition to the System’s summary-judgment motion.

At the hearing on Wilkins’s motion for new trial, the trial court orally granted the motion, and the court subsequently issued a written order to that effect. In the same order, the trial court stated that it would “again consider [the System’s] motion for summary judgment” and that it had considered the System’s original summary-judgment pleadings as well as Wilkins’s motion for new trial and the related pleadings. After making several evidentiary rulings in the order with respect to the newly filed evidence, the trial court again granted the System’s motion for summary judgment and dismissed without prejudice Wilkins’s claims against the Hospital because it was never served. Wilkins filed a notice of appeal ninety days later.

The court of appeals affirmed the trial court’s judgment. 108 S.W.3d 565, 567. The court of appeals first rejected the System’s argument that it had no jurisdiction over the appeal, holding that Wilkins’s motion for new trial “assailed” the second judgment and therefore extended the appellate deadlines. Id. at 568. The court of appeals then held that, even assuming limitations should have been tolled until the proper defendant was joined, the trial court correctly dismissed Wilkins’s claims against the Hospital because it was never served with citation and had not appeared in the case. Id. at 571-72 (citing Tex.R. Civ. P. 124).

II

Before we address the court of appeals’ holding that Wilkins’s failure to serve the Hospital with citation warranted the dismissal of her claims, we must determine whether the court of appeals properly exercised jurisdiction over the appeal. A notice of appeal generally must be filed within thirty days after a judgment is signed; however, if a party timely files a motion for new trial, the notice of appeal is not due until ninety days after the judgment is signed. Tex.R.App. P. 26.1. The issue here is whether Wilkins’s motion for new trial, which was filed in response to the trial court’s first judgment and granted before the second judgment was rendered, should be treated as prematurely filed with respect to the subsequent judgment and extend the deadline for filing a notice of appeal. The court of appeals held that it should and that the notice of appeal was timely filed. 108 S.W.3d at 568. We disagree.

Our appellate procedural rules allow an appellate court to “treat actions taken before an appealable order is signed as relating to an appeal of that order and [to] give them effect as if they had been taken after the order was signed.” Tex.R.App. P. 27.2. Similarly, the Rules of Civil Procedure provide that a prematurely filed motion for new trial “shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” Tex.R. Civ. P. 306c. We therefore must determine whether a motion for new trial that is granted can assail a subsequent judgment such that the motion extends the deadline for filing a notice of appeal from that judgment.

Addressing the issue of error preservation, we held in Fredonia State Bank v. General American Life Insurance Co. that a motion for new trial that complains of error brought forward in a subsequent judgment preserves those complaints on appeal to the extent they are applicable to that judgment. 881 S.W.2d 279, 281 (Tex.1994). We now hold that such a motion also generally operates to extend the appellate timetable on the judgment that it assails; however, we also hold that a motion for new trial that has been granted cannot assail a subsequent judgment.

We recognized in Fredonia that the courts of appeals are split on whether a motion for new trial that is no longer “live” in the sense that it has been ruled upon can assail a subsequent judgment for purposes of extending the appellate deadlines. Compare, e.g., A.G. Solar & Co. v. Nordyke, 744 S.W.2d 646, 647 (Tex.App.-Dallas 1988, no writ) (citing Miller v. Hernandez, 708 S.W.2d 25, 26 (Tex.App.-Dallas 1986, no writ)) (holding that a motion for new trial did not assail a second judgment rendered after the motion had been overruled by operation of law), with Harris County Hosp. Dist. v. Estrada, 831 S.W.2d 876, 880 (Tex.App.-Houston [1st Dist.] 1992, no writ) (declining to limit application of the rules regarding premature filings to “live” pleadings). In Fredonia, we expressly declined to resolve the conflict between Solar and Estrada. Fredonia, 881 S.W.2d at 282 n. 2. We concluded, however, that “the better reasoned application of Rule 58 [Rule 27’s predecessor], more congruent with the Rule’s purpose, is set forth in Estrada.” Id. at282.

The Estrada court noted that the premature filing rules were enacted to prevent cases from being dismissed merely because the motion for new trial was filed too soon and to avoid “technical” dismissals of appeals if possible. 831 S.W.2d at 880; see also Fredonia, 881 S.W.2d at 282 (“The Rules of Appellate Procedure, and particularly Rule 58, should not be read to defeat the right to appeal except when such a construction is absolutely necessary.”). These purposes would be defeated, the court continued, by imposing a “live pleading” requirement when the complaints raised in a motion have not been cured by and remain applicable to a subsequent judgment. Estrada, 831 S.W.2d at 880.

We continue to agree with this reasoning, but neither Estrada nor Fredonia specifically discussed the effect of a motion for new trial that has been granted; rather, those cases involved motions for new trial that were denied either expressly, Estrada, 881 S.W.2d at 878, or by operation of law. Fredonia, 881 SW.2d at 281. Significantly, the Estrada court recognized that a “live pleading” requirement “may be appropriate in a case where the premature motion for new trial has become moot because all the relief it sought was subsequently granted.” 881 S.W.2d at 880. The court of appeals in this case held that, even if the Estrada exception applied, the trial court did not grant Wilkins all the relief she sought because her request to dismiss the System’s summary-judgment motion and continue the suit against the Hospital was denied. 108 S.W.3d at 568. We agree with the live-pleading exception the Estrada court recognized, but disagree with the court of appeals’ application of that exception here. Specifically, we disagree with the court of appeals’ conclusion that Wilkins did not obtain all the relief she sought in her new-trial motion because the trial court, by its second judgment in the System’s favor, refused to dismiss the summary-judgment motion and continue the case. When a motion for new trial is granted, it becomes moot as to any effect it may have on a subsequent judgment. Moreover, the granting of Wilkins’s motion for new trial did not entitle her to a dismissal of the System’s motion for summary judgment.

Except in very limited circumstances, an order granting a motion for new trial rendered within the period of the trial court’s plenary power is not reviewable on appeal. Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex.1984); see also Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985) (noting that we have recognized two instances when a Texas appellate court has overturned the trial court’s grant of a new trial: when the trial court’s order was wholly void, and where the trial court specified in the written order that the sole ground for granting the motion was that the jury’s answers to special issues were irreconcilably conflicting). When a motion for new trial is granted, “the case shall be reinstated upon the docket of the trial court and stand for trial the same as though no trial had been had.” Wichita Falls Traction Co. v. Cook, 122 Tex. 446, 60 S.W.2d 764, 768 (1933); see also Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (‘When a motion for new trial is granted, the original judgment is set aside and the parties may proceed without prejudice from previous proceedings.”). Thus, when the trial court grants a motion for new trial, the comb essentially wipes the slate clean and starts over.

If a trial court were to grant a new trial to a losing party after a full trial on the merits, and the party then lost again after the second trial, one could not realistically argue that the motion for new trial filed after the first trial would assail the judgment rendered after the second so as to extend the appellate deadlines. We see no reason to conclude otherwise in the summary-judgment context. In this case, the trial court wiped the slate clean when it granted Wilkins’s motion for new trial; it is as though the court’s first order granting summary judgment never existed, which is all the relief to which Wilkins was entitled. Just as the losing party after a full trial on the merits would not be entitled to a different outcome in the second trial just because a new trial had been granted, Wilkins was not entitled to a different outcome with regard to the System’s summary-judgment motion after her motion for new trial was granted. She was entitled to a new ruling on the summary-judgment motion, which is exactly what the trial court provided. Once Wilkins’s motion for new trial was granted, it became moot because the relief sought had been granted.

Ill

We hold that a motion for new trial that has been granted cannot “assail” a subsequent judgment for purposes of determining the deadline for filing a notice of appeal. Wilkins’s motion for new trial was not prematurely filed with respect to the trial court’s second judgment, and her notice of appeal was due thirty days after that judgment was signed. Because Wilkins’s notice of appeal was untimely, the court of appeals lacked jurisdiction over the appeal, and we do not reach the issue of whether Wilkins’s claims against the Hospital were correctly dismissed based on lack of service of citation. Accordingly, we reverse the court of appeals’ judgment and dismiss the appeal for want of jurisdiction.

Justice BRISTER did not participate in the decision.

      . While her appeal was pending in the court of appeals, Wilkins filed a motion requesting that the court of appeals order the trial court to conduct a hearing on whether the clerk's record should be supplemented to include a second motion for new trial Wilkins alleged she filed after the second judgment was entered. The trial court held a hearing at the court of appeals’ direction and denied Wilkins’s request to supplement the record, finding that there was no motion for new trial properly filed with regard to the second judgment. The court of appeals held that its disposition rendered the supplementation issue a moot point. 108 S.W.3d at 568 n. 7. Because Wilkins never disputed the trial court’s order or findings in the court of appeals on that issue, she waived any complaints about the order. Thus, in determining whether Wilkins’s notice of appeal was timely, we consider only the effect of the motion for new trial that she filed in response to the trial court's first order granting summary judgment.

      . We relied on Rule 58(c) in deciding Fredo-nia, which stated: “In civil cases, if the trial court has signed an order modifying, correcting, or reforming the order appealed from, or has vacated that order and signed another, any proceedings relating to an appeal of the first order may be considered applicable to the second....” Tex.R.App. P. 58(c) (1986, repealed 1997). That provision is now Rule 27.3, and the language has been amended to apply to actions relating to the appeal of an order that has been modified or vacated after the order or judgment has been appealed. Tex.R.App. P. 27.3. In any event, Rule 27.3 does not apply to this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PINNACLE GAS TREATING, INC., Petitioner, v. Raymond Michael READ, Mark William Read, and Thomas I. Fetzer, II, Respondents.
    No. 04-0660.
    Supreme Court of Texas.
    March 11, 2005.
    Rehearing Denied May 13, 2005.

      Edward Robert Human, Celia C. Flowers, Flowers Davis, PLLC, William Dean Farrar, Tyler, for petitioner.
    Karl C. Hoppess, Daniel P. Meanor, Karl C. Hoppess & Associates, P.C., Houston, Joe Cannon, Cannon & Simmons, Gro-esbeck, for respondents.
   PER CURIAM.

This case presents the question whether a district judge had jurisdiction to sign orders in a condemnation case pending in another district court in the same county. The court of appeals held that the district judge did not have jurisdiction • because there had been no exchange of benches. 143 S.W.3d at 169. We hold there was jurisdiction; we therefore reverse the decision of the court of appeals and remand the case to the trial court.

In 1997, Pinnacle Gas Treating, Inc. initiated eight condemnation proceedings in Leon County. Pursuant to the Property Code, the district clerk distributed the eight cases among the three courts serving the county: the 12th, 87th, and 278th Judicial District Courts. See Tex. Prop.Code § 21.013(d). This case, which involves an easement over the Reads’ property for a gas pipeline, was assigned to Judge Sandel of the 278th court. However, Judge Bour-nias of the 87th court signed orders appointing special commissioners in all eight proceedings. The commissioners determined that the Reads were entitled to an award of $7,527 for the easement. After Pinnacle filed a notice of deposit, Judge Bournias granted Pinnacle a writ of possession for the easement. Pinnacle then filed an objection to the commissioners’ award and converted the administrative condemnation into a judicial proceeding. See Tex. Prop.Code § 21.018.

Pinnacle filed a motion for partial summary judgment with Judge Sandel to establish that Pinnacle was entitled to condemn the property as a matter of law. The Reads filed a plea to the jurisdiction and a motion to dismiss, arguing that Judge Bournias never had jurisdiction over the case because there had been no proper reassignment of the case or exchange .of benches. They also sought damages for wrongful entry and attorneys’ fees. Judge Sandel dismissed Pinnacle’s condemnation proceeding and submitted the Reads’ claim for damages to a jury, which awarded $104,290.57. Meanwhile, Pinnacle initiated a second condemnation proceeding to secure its right to the easement, over which it had already built a pipeline. The trial court rendered judgment on the jury’s verdict, and Pinnacle filed its notice of appeal.

A divided court of appeals dismissed the appeal, holding that the second condemnation proceeding rendered the case moot. Pinnacle petitioned this Court for review, and we reversed, holding that because damages were at issue, Pinnacle had a continuing stake in the outcome of the case, and it was therefore not moot. We remanded that case to the court of appeals for consideration on the merits. 104 S.W.3d 544 (Tex.2003).

The court of appeals again affirmed, holding that Judge Bournias lacked jurisdiction to appoint the commissioners because Judge Sandel never agreed to exchange benches with him. Chief Justice Gray dissented, arguing that any defect was procedural, not jurisdictional.

Both the 87th and 278th Judicial Districts include Leon County. Tex. Gov’t Code §§ 24.189(a), 24.455. Both Judge Bournias and Judge Sandel therefore had concurrent jurisdiction over Pinnacle’s eminent domain case. See Tex. Const, art. V, § 8; In re U.S. Silica Co., 157 S.W.3d 434, 438 (Tex.2005).

The Texas Constitution provides that “[t]he District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.” Tex. Const, art. V, § 11. No formal order is needed for an exchange or transfer to take place. See In re Houston Lighting & Power Co., 976 S.W.2d 671, 673 (Tex.1998); Davila v. State, 651 S.W.2d 797, 799 (Tex.Crim.App.1983). If a judge lacks subject matter jurisdiction over a case, that judge cannot gain jurisdiction through an exchange of benches. See Johnson v. State, 869 S.W.2d 347, 348-49 (Tex.Crim.App.1994). This rule is incompatible with the Reads’ view that exchanging benches is about jurisdiction-swapping. Rather, the right of district judges to exchange benches assumes that they already have concurrent jurisdiction over the same cases in a common county. Judge Bourni-as had jurisdiction irrespective of whether his appointment of the commissioners was erroneous.

Under the heading “Venue,” the Property Code directs the district and county clerks to “assign an equal number of eminent domain cases in rotation to each court with jurisdiction that the clerk serves.” Tex. Prop.Code § 21.013(d) (emphasis added). The statute does not purport to confer exclusive jurisdiction upon the court to which a case is assigned, and explicitly recognizes that jurisdiction can lie with multiple courts. Furthermore, the Government Code provides:

A district or statutory county court judge may hear and determine a matter pending in any district or statutory county court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. The judge may sign a judgment or order in any of the courts regardless of whether the case is transferred. The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter.

Tex. Gov’t Code § 74.094(a). On the other hand, section 21.014 of the Property Code provides that “[t]he judge of a court ... to which an eminent domain case is assigned shall appoint three disinterested freeholders who reside in the county as special commissioners.” Tex. Prop.Code § 21.014(a). The court of appeals noted that specific statutes control general ones, see Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex.2000), and concluded that section 21.014 definitively established that only Judge Sandel could appoint the commissioners. 143 S.W.3d at 169. However, section 21.014 contains no language suggesting that it confers exclusive jurisdiction to appoint commissioners to the judge to which an eminent domain ease is assigned, and might well conflict with district judges’ constitutional right to exchange benches if it did.

Judge Bournias had jurisdiction over this action, and any error was curable by a trial de novo. See Gulf, C. & S.F. Ry. Co. v. Ft. Worth & R.G. Ry. Co., 86 Tex. 537, 26 S.W. 54, 60 (1894). The court of appeals therefore erred in affirming the trial court’s order dismissing the action. Pinnacle was never wrongfully in possession of the Reads’ land, and the Reads therefore cannot maintain an action for wrongful entry and attorneys’ fees.

Therefore, without hearing oral argument, we reverse the judgment of the court of appeals and render judgment that the Reads take nothing in their suit against Pinnacle. See Tex.R.App. P. 59.1. The record does not reflect whether the second condemnation proceeding has resolved all outstanding issues relating to condemnation damages, or whether a trial on damages in the original condemnation proceeding is still required. We therefore remand the condemnation proceeding to the trial court for further proceedings consistent with this opinion.

      . A writ of possession was issued in the second proceeding, but the record does not reflect its ultimate outcome.

      . The Rules of Civil Procedure reinforce this rule. In counties with more than one district court, “any judge may hear any part of any case." See Tex.R. Civ. P. 330(g). And Rule 330(h) provides that in such counties,
      any judge may hear ... all preliminary matters, questions, and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting. [] Any judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.
      Tex.R. Civ. P. 330(h); see also In re Garza, 981 S.W.2d 438, 441 (Tex.App.-San Antonio 1998) (holding that a district judge can rule on matters filed in another court in the same county). Although these rules create the possibility for conflicting orders to be issued by two courts both asserting jurisdiction, mandamus relief is available to remedy such situations. See Bigham v. Dempster, 901 S.W.2d 424, 428 (Tex. 1995).

      . The Reads argue that exchange of benches is inapplicable to an order appointing commissioners or granting a writ of possession based on an award of commissioners, because such acts are "ministerial” or "administrative” and are not "judicial.” See Rose v. State, 497 S.W.2d 444, 445 (Tex.1973). But an order granting such a writ of possession is ministerial only in that it is an administrative judgment from which no direct appeal will lie. See id. The Government Code provides that a "judge may sign a judgment or order in any of the courts [in the county] regardless of whether the case is transferred.” Tex. Gov’t Code § 74.094(a). Appointing commissioners and issuing writs of possession are accomplished by signing orders. We see no reason to depart from the plain language of the statute.

      .The Reads argue that this position renders administrative condemnation proceedings irrelevant. But parties are always entitled to a jury trial if they feel they need one. See Tex. Prop.Code § 21.018. Administrative condemnation remains relevant because when the parties are satisfied with the administrative proceeding, they can forgo their right to a trial, saving time and expense.


author: MEYERS, J.,

text:
    Kenneth Wayne JACKSON, Appellant v. The STATE of Texas.
    No. PD-1655-03.
    Court of Criminal Appeals of Texas.
    April 13, 2005.

      Lydia M.V. Brandt, Richardson, for appellant.
    Kim Schaefer, Asst. DA, Dallas, Matthew Paul, State’s Attorney, Austin, for state.
   MEYERS, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and PRICE, JOHNSON, HOLCOMB, and COCHRAN, JJ, joined.

Appellant was convicted of murder and sentenced to sixty years’ imprisonment. Texas Penal Code Sec. 19.02(b)(1). Appellant appealed the trial court’s limitation of his use of mental-illness testimony. The court of appeals affirmed the conviction. Jackson v. State, 115 S.W.3d 326 (Tex.App.-Dallas 2003). We granted review to determine whether the doctrine of diminished capacity exists in the jurisprudence of Texas. We will affirm.

FACTS

Appellant and his older brother, Eric, arrived home between 4:00 and 5:00 in the morning after an evening out with friends. Their sister, Tina, heard her brothers come in and went into the living room to talk to them. She testified that Appellant wanted to wake up his mother, but Eric would not allow him to go into her bedroom. Eric blocked the door to the bedroom and restrained Appellant from entering. The brothers began to fight, pushing each other, hitting each other and pulling each other’s hair. The fighting awakened their mother, and she came into the living room and told Appellant and his brother to go to bed. Tina testified that they continued to argue, and Eric asked her to call the police because Appellant was becoming violent and would not stop fighting. She also stated that Appellant threatened his brother and told him that he was going to get him if he went to sleep. Tina did not call the police, but the fighting eventually calmed down. Appellant went to sleep on the couch in the living room, and Eric went to sleep in their mother’s bedroom. Several hours later, Tina drove their mother to work. While his mother and sister were out of the house, Appellant went into the kitchen, got a hammer, entered his mother’s bedroom where Eric was sleeping, and hit him in the head with the hammer. Appellant returned the hammer to the cabinet in the kitchen and then called 911. The first police officer to arrive testified that Appellant told them he didn’t know what happened, but he thought his brother had been shot.

At trial, Appellant presented testimony regarding his mental illness. His mother and sister testified ■ that Appellant had “spells” and exhibited strange behaviors including talking to himself, hiding food in his bedroom, and hanging clothes on the walls and windows rather than in the closet. His mother testified that doctors had told her that Appellant was capable of killing, and had instructed her to call the police whenever Appellant acted violently toward his brother. When the family called the police, Appellant was usually released the next day, but on one occasion he was admitted to Timberlawn mental hospital after he pulled a knife on his brother. Tina testified that Appellant had been diagnosed as being a paranoid schizophrenic. She stated, “I don’t think Kenneth thinks about the things that he is doing before he does them. I don’t think he thinks about it. I don’t think he even knows what the circumstances would be. Sometimes Kenneth is — he’s fine, and the next minute, it’s like he’s another person.” She also stated, “I don’t think that Kenneth meant to kill him. I think he just wanted to hurt him, because, you know, he was — they had been fighting.”

The defense called forensic psychiatrist Dr. James Grigson to testify. The State requested a hearing under Rule of Evidence 705(b), to examine the facts upon which the doctor based his opinions. The trial court denied the State’s request, but limited the mental-illness testimony, stating that it would not allow an insanity defense to be raised at that late date without notice to the State. The following is the testimony of the defense psychiatrist regarding Appellant’s history of mental illness.

[Defense] Would you please explain to the ladies and gentlemen of the Jury your findings from the — tell us a little bit about his history, some of the findings that — where he’s been located, et cetera?
[Dr. Grigson] He’s been seen at Parkland emergency room, and also in 1998, he was hospitalized at Timber-lawn Psychiatric Hospital here in Dallas for about a week. In his history it stated that he became mentally ill somewhere around about age 14. He has been diagnosed as schizophrenic and as bipolar disorder, both psychotic episodes.
[Defense] Explain to the ladies and gentlemen of the jury what you mean by schizophrenic?
[Dr. Grigson] Schizophrenia is one of our more severe mental illnesses. The individual has gross impairment in terms of interpersonal relationships, the way they get along with other people, and gross impairment in terms of reality testing. They mis-perceive what’s going on around them.
[Defense] What about paranoia?
[Dr. Grigson] Paranoid is a descriptive term of a type of schizophrenia where the individual that is suffering from paranoid schizophrenia usually believes that people are plotting against them or trying to do something to them, trying to harm them in some way.
[Defense] What about bipolar?
[Dr. Grigson] Bipolar is another severe mental illness. The individuals may only have manic states, or they may only have depressive states, or they may have alternating manic and depressive states.
[Defense] What about mental retardation, sir?
[Dr. Grigson] Mental retardation is where the individual has an IQ below 70.
[Defense] Okay. Was there any — in his history or your examination, was there any mental retardation that you can recall?
[Dr. Grigson] No, sir, there’s not any.
[Defense] Pass the witness, your honor.
[CROSS EXAMINATION]
[State] Dr. Grigson, you’ve had an opportunity to review his various medical files?
[Dr. Grigson] I did.
[State] And did you notice that he in some — in his files and on occasions, he had — the Defendant, Mr. Jackson, had a tendency to become violent?
[Dr. Grigson] He has.
[State] With his brother or with his dad or other family members?
[Dr. Grigson] That’s correct.
[State] And, in fact, that’s the way — -is that a way that some people with schizophrenia or have these psychotic episodes, that’s how it manifests itself where they actually become violent?
[Dr. Grigson] It can happen in individuals with schizophrenia or bipolar, or it can happen in an individual that has neither.
[State] And they can become really violent. I mean, on some occasions he was known to have pulled a knife on his brother, or hit his brother, or hit his dad with a bat?
[Dr. Grigson] That’s correct.
[State] And you — you say that you analyzed him on May 15, what would be ten days after the offense date?
[Dr. Grigson] Yes, sir, I did.
[State] And it’s your opinion that he was competent?
[Dr. Grigson] Right. He had sufficient present mental ability to consult with his attorney with a reasonable degree of rational understanding, and he had a rational, as well as a factual understanding regarding the proceedings against him. Therefore, it was my opinion that he was competent at that time to stand trial.
[State] And he was still competent in June when you interviewed him?
[Dr. Grigson] Yes, sir, he was.
[State] And that’s the last time that you talked to him or interviewed him?
[Dr. Grigson] Yes, sir, it is.
[State] And I mean, you’re not here telling the Jury that he’s insane or didn’t know what he was doing?
[Dr. Grigson] No. He was sane at the time. He was aware of what he was doing.
[State] And he knew the difference between right and wrong?
[Dr. Grigson] Yes, sir, he did.
[State] Okay. So he was — he was sane, and he was competent in your opinion?
[Dr. Grigson] Yes, he was.
[State] Okay. That’s all I have.

In closing argument, the defense attempted to argue that the jury should find that Appellant lacked the mental capacity to intentionally or knowingly cause bodily injury. The State objected to the improper argument, and the objection was sustained. The jury found Appellant guilty, and he was sentenced to sixty years’ imprisonment.

COURT OF APPEALS

Appellant appealed, arguing in part that his due process rights were violated because the jury was not allowed to consider evidence of diminished capacity to negate the element of mens rea. Appellant relies on an exception to the rule set out in Cowles v. State, 510 S.W.2d 608 (Tex.Crim.App.1974), that evidence of mental illness short of the inability to distinguish right from wrong is not admissible at the guilt stage of the trial. Although Cowles involved a non-specific-intent crime, the exception stated that such evidence may be admissible when specific intent is an element of the offense. The court of appeals cited Wagner v. State, 687 S.W.2d 303 (Tex.Crim.App.1985), in which we referred to the exception from Cowles as “dicta” and stated that lack of impulse control does not diminish criminal responsibility. Id. at 311. The court of appeals concluded that, because there is no diminished-capacity defense in Texas, the trial court did not err in failing to allow the jury to consider appellant’s mental-illness evidence for the purpose of negating mens rea. Jackson v. State, 115 S.W.3d at 328.

Appellant filed a petition for discretionary review stating that the holding of the court of appeals conflicts with our holdings in Penry v. State, 903 S.W.2d 715 (Tex.Crim.App.1995), Cowles, and Wagner. Appellant reasons that past opinions have confused the doctrine of “diminished capacity” with the affirmative defense of “diminished responsibility,” and that diminished capacity is recognized in Texas. Finally, Appellant argues that the U.S. and Texas Constitutions require that a defendant be allowed to introduce evidence of diminished capacity. We granted review to determine whether the doctrine of diminished capacity exists in the jurisprudence of Texas.

ANALYSIS

This case does not really present us with a reason to determine whether the doctrine of diminished capacity exists in Texas because the evidence of mental illness in this case does not negate mens rea. Rather,'the evidence presented an excuse for the crime, i.e., that Appellant killed his brother because he was so paranoid that he thought his brother was out to get him. In fact, this evidence makes it even more apparent that Appellant intended to cause serious bodily injury or death to his brother. The evidence of appellant’s paranoia simply provides a motive for the intentional act. The evidence presented was the type of excuse-based evidence that would be raised as an affirmative defense. As even Appellant acknowledges, Texas law does not recognize a lesser form of the insanity affirmative defense. However, we will address Appellant’s claims.

First, we disagree with Appellant’s contention that the opinion of the court of appeals conflicts with our opinion in Wagner. As in the ease before us, Wagner did not raise an insanity defense. He did, however, want to admit evidence of a physical injury which may have caused impaired mental function and lack of impulse control. We stated that the evidence may have been admissible if it showed that Wagner acted with sudden passion arising from an adequate cause. Wagner, 687 S.W.2d at 311. However, because it did not, we held that admitting evidence of impaired mental function at the guilt phase of the trial would have confused the jury and therefore, it was not admissible. Id. at 312. We note that this has changed because sudden passion is now a punishment issue. As a result, even the part of Wagner which states that the doctrine of diminished capacity might require the admission of evidence of sudden passion arising from an adequate cause now would apply only to the punishment phase of trial and does not require evidence of mental illness falling short of insanity to be admitted at the guilt phase. Under Penal Code section 19.02(d), sudden passion and adequate cause are raised at the punishment stage of a trial to reduce the offense to a second-degree felony.

We additionally disagree with the Appellant that the holding of the court of appeals conflicts with our holding in Penry. As in the case before us, Penry presented evidence of his mental impairments at trial and emphasized this evidence in closing arguments. Penry argued that the charge to the jury should have included an instruction to consider abnormal physical or mental conditions when deciding the issue of intent. Penry, 903 S.W.2d at 753. We stated that there was no reason to conclude that the jury failed to consider Pen-ry’s proffered evidence and held that “[a] specific instruction calling attention to the evidence on appellant’s impaired mental abilities was unnecessary, and might have inappropriately vested this evidence with a disproportionate legal significance in the eyes of the jury.” Id. at 754. Judge Maloney wrote a concurring opinion agreeing that the instruction requested by Pen-ry would have been an improper comment on the weight of the evidence and was properly denied. He then explained the difference between the diminished-capacity affirmative defense and the presentation of evidence of diminished capacity to negate mens rea. Id. at 767-68. Stating that past cases have confused the issues, Judge Maloney emphasized that most state and federal courts allow defendants to present evidence of diminished capacity to negate mens rea. Id. at 768-69.

As for Appellant’s argument that the 8th and 14th Amendment of the U.S. Constitution and the right to due course of law under the Texas Constitution require that a defendant be allowed to introduce evidence of diminished capacity, we again fail to see how this applies to the facts of this case. While barring, excluding, or prohibiting all evidence relating to a mental condition may violate a defendant’s rights in certain cases, in the case before us, no such violation occurred.

DIMINISHED CAPACITY

The court of appeals correctly stated that Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity. In contrast, the diminished-capacity doctrine at issue in this case is simply a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense. To counter the State’s evidence of the defendant’s state of mind, the defense wishes to present evidence that the defendant has mental or physical impairments or abnormalities and that some of his abilities are lessened in comparison to someone without such problems.

As with the other elements of the offense, relevant evidence may be presented which the jury may consider to negate the mens rea element. And, this evidence may sometimes include evidence of a defendant’s history of mental illness. Texas Code of Criminal Procedure Art. 38.36(a) states that:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

However, this evidence must still meet the admissibility requirements of Rule of Evidence 403. In Smith v. State, 5 S.W.3d 673 (Tex.Crim.App.1999), we stated that evidence admissible under Article 38.36(a) may be excluded under Rule 403 if the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. Even if evidence is relevant to an element of the offense, the trial court still must determine whether the evidence is admissible. Therefore, the trial judge has discretion to determine whether evidence of mental illness may be presented to negate the element of mens rea, or whether the evidence should be excluded on special grounds. If such evidence is admitted, the trial judge additionally has the discretion to determine whether the evidence supports a lesser-included-offense instruction. In cases where such evidence was not admitted, it may be presented in the punishment phase in order to reduce the sentence assessed by the jury.

Appellant has not indicated what evidence, if any, he was prevented from introducing. He was able to present extensive evidence regarding his mental illness, his relationship with the victim, and his frame of mind on the night of the offense. There is no indication in the record that he was prevented from presenting any evidence at all. Therefore, we disagree with Appellant’s assertion that he was prevented from introducing evidence relevant to whether he possessed the requisite mens rea. The State presented evidence that Appellant intentionally and knowingly caused the death of his brother. Appellant attempted to negate this evidence by introducing evidence of his history of mental illness through the testimony of his mother' and sister, as well as the defense expert witness, Dr. Grigson. Appellant himself testified about his frame of mind on the night of the offense. The jury was able to hear all of this evidence, determine the weight of the evidence, and choose whether or not Appellant possessed the requisite mens rea to commit this offense. The jury believed that he did. The only thing Appellant was prevented from doing is arguing that the jury should find that he did not have the capacity to make the decision to intentionally and knowingly cause bodily injury and- thus should find him not guilty. However, presenting evidence of mental illness does not then allow the defense to argue that the defendant is absolutely incapable i.e., does not have the capacity to intentionally or knowingly perform an act. There is simply no defense recognized by Texas law stating that, due to the defendant’s mental illness, he did not have the requisite mens rea at the time of the offense because he does not have the capacity, or is absolutely incapable of ever forming that frame of mind. There is no indication of an abuse of discretion in this case.

In conclusion, the judge may determine whether mental-illness evidence may be presented, and if it is presented, may determine whether it raises the issue of a lesser-included offense. Then, the jury may decide if the evidence lessens the defendant’s culpability by finding him guilty of a lesser-included offense if presented at the guilt phase of trial or by assessing a lesser sentence at the punishment phase.

In this case, the judge admitted evidence of mental illness and decided that it did not raise the issue of a lesser-included offense. The jury considered the evidence and believed that the State proved each element of the offense beyond a reasonable doubt, including the mens rea of intentionally and knowingly. The judgment of the court of appeals is affirmed.

KEASLER, and HERVEY, JJ„ concurred.

WOMACK, J., did not participate.

      . Appellant claimed he hit his brother only once but the medical examiner who performed the autopsy testified that the injuries to the skull indicated that the victim had been struck twice.

      . Note that at the time of the Cowles decision, Texas used the M'Naghten Rule to determine the defense of insanity. The M'Naghten Rule asked whether the accused could distinguish right from wrong at the time of the offense. Texas Penal Code Section 8.01(a) now states that “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” This is also different from the insanity statute at the time of the Wagner decision, which included "or was incapable of conforming his conduct to the requirements of the law he allegedly violated.”

      . In Bradley v. State, 688 S.W.2d 847, 853 n. 13 (Tex.Crim.App.1985), we invited the legislature to make sudden passion either an affirmative defense or a punishment issue. By a 1994 Legislative amendment to Penal Code Sec. 19.02, they chose to make it a punishment issue.

      . In the case before us, the court of appeals correctly held that, “There was no evidence here that if appellant was guilty, he was guilty only of a lesser mens rea. Thus, we conclude the trial court did not err in refusing to instruct on involuntary manslaughter and criminally negligent homicide.” Jackson, 115 S.W.3d at 330-31.


author: KEASLER, J., HOLCOMB, J.,

text:
    Rodney L. RICH, Appellant, v. The STATE of Texas.
    No. PD-1275-03.
    Court of Criminal Appeals of Texas.
    April 13, 2005.

      Robert Ford, Fort Worth, for Appellant.
    Danielle A. Legault, Asst. DA, Fort Worth, Matthew Paul, State’s Attorney, Austin, for State.
   KEASLER, J.,

delivered the opinion of the Court joined by

KELLER, P. J., and PRICE, WOMACK, HERVEY, and COCHRAN, JJ.

During voir dire, the trial judge denied Rodney Rich’s request to ask a proper question of the venire. In assessing harm, the Court of Appeals relied on the test for individual voir dire examinations. We conclude that this test does not apply when voir dire is conducted in a group setting rather than individually.

Factual and Procedural History

Rich was charged with attempted capital murder, attempted murder, aggravated assault, and burglary of a habitation. He pleaded not guilty and the case went to trial. During voir dire, the following transpired:

[DEFENSE COUNSEL]: Mr. Downey, we’ve been talking a lot about beyond a reasonable doubt. In other words, the State has to prove all the elements of the offense beyond a reasonable doubt. What does “reasonable doubt” mean to you?
PROSPECTIVE JUROR: Basically—
[PROSECUTOR]: Judge, I’m going to object to him trying to get them to — -
THE COURT: I’ll sustain the objection.
[DEFENSE COUNSEL]: In just a minute the Judge will give you some instructions as to what beyond a reasonable doubt is.
[PROSECUTOR]: I think I’m going to object to that, because that’s not the law.
THE COURT: I agree. I’ll sustain the objection. You will not be getting any instructions from me as far as specifically what reasonable doubt is. You will be given an instruction as to how you are to consider. Go ahead if you would, please.
[DEFENSE COUNSEL]: Your Honor, am I allowed to inquire to the jury as to what their concept of beyond a reasonable doubt is?
THE COURT: No.
[DEFENSE COUNSEL]: Very well, Your Honor. Please note our objection.

Court of Appeals

On appeal, the State conceded, and the Court of Appeals found, that the trial judge erred in not allowing Rich to ask a proper question of the venire. The appellate court found the error harmless under Rule 44.2(b). Citing Anson v. State, the court held that “voir dire error is deemed harmful when the defendant: (1) exhausts all his peremptory challenges; (2) requests additional peremptory challenges; (3) has this request denied; and (4) identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge.” Since Rich did not request any additional peremptory strikes, the Court of Appeals concluded that he was not harmed by the error.

We granted Rich’s petition for discretionary review, in which he argues that the Court of Appeals failed to perform a proper harm analysis.

Analysis

A tidal judge’s impermissible exclusion of a proper question during jury voir dire is subject to a harmless error analysis. The Court of Appeals found this to be non-constitutional error and applied Rule 44.2(b). Rich does not contest this conclusion, so we assume that to be the proper rule.

Under Rule of Appellate Procedure 44.2(b), we disregard all non-constitutional eirors that do not affect the appellant’s substantial rights. A substantial right is affected “when the error has a substantial and injurious effect or influence in determining the jury’s verdict.”

Rich argues that the Court of Appeals erred in applying “a capital harm analysis” to this non-capital case. He explains that voir dire is conducted individually in capital prosecutions, but in this case the venire was questioned at large.

Rich errs in basing his argument on the difference between capital and non-capital cases. Trial judges have discretion to order individual voir dire in any case. Nevertheless, we agree with Rich that the test in Anson is inapplicable to cases in which voir dire is conducted in a group setting rather than individually. Rich was prevented from asking a valid question to the entire venire. Exhausting his peremptory challenges and requesting additional peremptory challenges would not have remedied the trial judge’s error since the error extended to the entire venire.

Instead, a harm analysis in this instance should assess whether the defendant’s substantial rights were affected— that is, whether the error had a substantial and injurious effect or influence in determining the jury’s verdict. In the case of the erroneous admission of evidence, we have said that the appellate court should consider everything in- the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. We believe these same general factors are relevant considerations in determining the harm from being denied a proper question to the venire.

Conclusion

We reverse the judgment below and remand this case to the Court of Appeals to conduct a proper harm analysis.

JOHNSON, J., dissented.

HOLCOMB, J., filed a dissenting opinion joined by MEYERS, J.

HOLCOMB, J.,

dissenting, in which MEYERS, J., joined.

I respectfully dissent. The trial court’s error in prohibiting appellant from asking the venire members a proper question was, under binding precedent, an error of constitutional dimension, and it is therefore inappropriate for this Court to remand the case to the court of appeals for a harm analysis under Texas Rule of Appellate Procedure 44.2(b), which is our harmless error rule for non-constitutional errors. For this Court to remand this case for a harm analysis under Rule 44.2(b) will only serve to compound the errors already committed by the courts below. Such a remand will mislead the court of appeals and the parties, not to mention the general bench and bar, as to the true nature of this type of voir dire error. This unhappy situation has arisen because the majority has unwisely restricted its analysis to the somewhat incomplete argument presented in appellant’s petition for discretionary review. I would decide this case correctly, without being constrained by the literal terms of the grant of review, as our precedents allow. Furthermore, I would conduct a proper harm analysis myself under Texas Rule of Appellate Procedure 44.2(a), rather than keeping this case in further appellate orbit by remanding it to the court of appeals, and I would affirm in part and reverse in part the judgment of the court of appeals.

The Relevant Facts

In late November of 2000, a Tarrant County grand jury presented an indictment that charged appellant with several felony offenses, including aggravated assault' and burglary. See Tex. PemCode §§ 22.02(a)(2) and 30.02(a)(1) & (3). The State later brought appellant to trial under the indictment. During voir dire, appellant asked for the opportunity to question the venire members on their understanding of the term “beyond a reasonable doubt,” ie., the State’s burden of proof. Although appellant’s proposed voir dire question was, under our holding in Woolridge v. State, 827 S.W.2d 900 (Tex.Crim.App.1992), a proper question, the trial court denied him the opportunity to ask it.

At the guilt stage of trial, the complainant, appellant’s estranged common-law wife, testified that, on October 29, 2000, at approximately 2:00 a.m., appellant forced his way into her Forest Hill home and, after a brief exchange, stabbed her several times with a kitchen knife. Appellant took the stand in his defense and testified that, at the time in question, the complainant voluntarily allowed him into her home and that shortly after she did so she actually attacked him with a kitchen knife. Appellant testified- further that he wrested the knife away from the complainant and then stabbed her with it. On cross-examination, appellant admitted that he stabbed the complainant out of anger and not out of fear for his own safety.

At the close of the evidence, the trial court instructed the jury on the various offenses charged in the indictment, as well as certain lesser included offenses. In addition, the trial court, apparently out of an abundance of caution, instructed the jury on the law of self-defense as applied to each of the charged offenses, even though the record evidence did not raise the issue of self-defense. See Tex. Pen. Code § 9.32(a).

The jury found appellant guilty of aggravated assault and burglary and assessed his punishment at imprisonment for eleven years for the aggravated assault and imprisonment for five years, probated, for the burglary. The trial court rendered judgment accordingly.

On direct appeal, appellant argued, and the State conceded, that the trial court erred in prohibiting appellant’s proposed voir dire question concerning the State’s burden of proof. The State insisted, though, that the trial court’s error was harmless because “[ajppellant took the stand [and] admitted committing the aggravated assault.”

The Second Court of Appeals rejected appellant’s argument and affirmed the judgment of the trial court. Rich v. State, 114 S.W.3d 54 (Tex.App.-Fort Worth 2003). Although the court of appeals agreed with appellant that the trial court erred in prohibiting the proposed voir dire question, the court of appeals held that the trial court’s error was harmless under Texas Rule of Appellate Procedure 44.2(b):

“In Jones [v. State, 982 S.W.2d 386 (Tex.Crim.App.1998)], the court of criminal appeals held that voir dire error amounts to constitutional error “[o]nly in very limited circumstances.” Jones, 982 S.W.2d at 391. The court then identified the following as errors of constitutional magnitude: (1) “when a juror is erroneously excused because of general opposition to the death penalty” and (2) when a juror is excluded for an “impermissible” reason “such as race, sex, or ethnicity.” Id. If the error is not constitutional, then we must analyze the harm under Rule 44.2(b). See Tex.R.App. Proc. 44.2(b).
“Because the trial court’s error in this case does not fall within the “very limited circumstances” identified in Jones as amounting to constitutional error, the harm analysis of Rule 44.2(b) applies. 982 S.W.2d at 391.
“Under Rule 44.2(b), we must disregard the error unless it affects a substantial right. Tex.R.App. Proc. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001).
“In cases involving the erroneous prohibition of proper questioning of individual prospective jurors, the Texas Court of Criminal Appeals has employed the same harm analysis applied to the erroneous denial of a defendant’s challenge for cause. Anson v. State, 959 S.W.2d 203, 204 (Tex.Crim.App.1997), cert. dism’d, 525 U.S. 924, 119 S.Ct. 290, 142 L.Ed.2d 241 (1998). Under this harm standard, voir dire error is deemed harmful when the defendant: (1) exhausts his peremptory challenges; (2) requests additional peremptory challenges; (3) has this request denied; and (4) identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Id.
“The record does not indicate whether or not appellant exhausted all of his peremptory challenges, and appellant does not claim that he did. The record does show, however, that appellant did not request additional peremptory challenges. Therefore, appellant was not harmed by the trial court’s error.” Rich v. State, 114 S.W.3d at 57-58.

Appellant later filed a petition for discretionary review, arguing generally that “[t]he court of appeals erred in failing to apply a proper harm analysis to this case.” Appellant also argued, more particularly, that the court of appeals erred in “applying] a capital harm analysis to the instant case.”

We granted appellant’s petition in order to determine whether the court of appeals erred in its harm analysis. See Tex. R.App. Proc. 66.3(b).

Analysis

In my view, the court of appeals made two errors. The court of appeals’ first error was its holding that the trial court’s error was non-constitutional in nature when, in fact, the trial court’s error was clearly constitutional in nature. The right to an impartial jury guaranteed by the Sixth Amendment to the United States Constitution includes within it the right to adequately voir dire prospective jurors in order to identify and eliminate unqualified jurors. Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Franklin v. State, 138 S.W.3d 351, 354 (Tex.Crim.App.2004). Furthermore, the right to counsel guaranteed by Article I, § 10, of the Texas Constitution includes within it the right to adequately voir dire prospective jurors “in order to intelligently and effectually exercise peremptory challenges and challenges for cause.” Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990). See also Linnell v. State, 935 S.W.2d 426, 428 (Tex.Crim.App.1996). Thus, when the trial court in this case denied appellant the opportunity to ask a proper voir dire question, the trial court violated appellant’s constitutional rights. Consequently, the harm, if any, from the trial court’s error must be assessed under Texas Rule of Appellate Procedure 44.2(a), the harmless error rule for constitutional errors.

The court of appeals’ reliance on Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998), for the proposition that the trial court’s error was non-constitutional in nature, was misplaced. Our discussion of voir dire error in Jones was, on its face, limited to situations in which a trial court erroneously excuses a prospective juror. Id. at 391. That discussion has no application to the situation here, in which the trial court erroneously denied a proper voir dire question.

The court of appeals’ second error, in my view, was in applying an Anson-type capital-style harmless error analysis to the trial court’s error. In Anson v. State, 959 S.W.2d 203 (Tex.Crim.App.1997), also a non-capital case, we held that a trial court’s error in prohibiting the defendant from asking a proper voir dire question of an individual venire member would be harmless beyond a reasonable doubt unless the defendant (1) exhausted all of his peremptory strikes, (2) requested additional peremptory strikes, (3) was denied additional peremptory strikes, and (4) identified an objectionable person seated on the jury on whom he would have exercised a peremptory strike. Id. at 204, fn. 3. Anson requires, in effect, that if a trial court, in a capital -or a non-capital case, erroneously denies the defendant the opportunity to ask a proper voir dire question of an individual venire member, then the defendant must “remedy” that error by peremptorily striking the venire member prophylactically and then asking for another peremptory strike to make up for the one expended. However, the Anson rule does not logically apply to the situation in this case, in which the trial court denied appellant the opportunity to ask a proper voir dire question of the entire venire. In this case, appellant’s prophylactic use of a peremptory strike would not have “remedied” the trial court’s error, since the error extended to the entire venire. See Janecka v. State, 937 S.W.2d 456, 471, fn. 9 (Tex.Crim.App.1996).

In his petition for discretionary review, appellant did not complain of the court of appeals’ first error — i.e., the court of appeals’ holding that the trial court’s error was non-constitutional in nature — and the majority, therefore, does not address it. But, in my view, if we are to decide this case correctly, we must address both of the court of appeals’ errors. Remanding this ease to the court of appeals for a harm analysis under Rule 44.2(b), when the trial court’s error was plainly constitutional in nature, will only confuse the situation and compound the errors of the courts below.

There is no question that this Court has the power to decide a case without being constrained by the literal terms of the grant of review, and, exercising our sound discretion, we have often done just that. See G. Dix & R. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 44.62 (2nd ed. 2001 & Supp.2004), and cases cited therein.

We could, of course, properly remand this case to the court of appeals for a proper harmless error analysis under the correct legal standard, i.e., Rule 44.2(a). See Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003). My preference, however, would be for this Court to exercise its sound discretion and perform the harmless error analysis itself.

After examining the record in this case, I conclude beyond a reasonable doubt that the trial court’s error did not contribute to appellant’s conviction or punishment for the aggravated assault. Since appellant took the stand and admitted the aggravated assault, and since the record evidence did not raise the issue of self-defense, any rational juror would have voted to convict and punish appellant for the aggravated assault regardless of that juror’s understanding of the State’s burden of proof. On the other hand, I cannot conclude beyond a reasonable doubt that the trial court’s error did not contribute to appellant’s conviction for burglary. The evidence at trial concerning the alleged burglary was in sharp conflict — the complainant testified that appellant entered her residence without her consent, and appellant testified that the complainant voluntarily allowed him into her residence — and I cannot say that any rational juror would have voted to convict appellant for burglary regardless of that juror’s understanding of the State’s burden of proof. In my view, there is a reasonable probability that one or more of the jurors who sat on appellant’s jury voted to convict him of burglary because they had a skewed understanding of the State’s burden of proof.

I would affirm the judgment of the court of appeals as it relates to appellant’s conviction for aggravated assault, I would reverse the judgment of the court of appeals as it relates to appellant’s conviction for burglary, and I would remand the case to the trial court for further proceedings.

      . Rich v. State, 114 S.W.3d 54 (Tex.App.-Fort Worth 2003).

      . 959 S.W.2d 203 (Tex.Crim.App.1997).

      . Rich, 114 S.W.3d at 57-58.

      . Id. at 58.

      . Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App.1999); Cena v. State, 991 S.W.2d 283, 283 (Tex.Crim.App.1999).

      . Russell v. State, 155 S.W.3d 176 2005 Tex. Crim.App. LEXIS 150, 6-7 (Tex.Crim.App.2005).

      . Tex.Code Crim. Proc. Art. 35.17.

      . Motilla V. State, 78 S.W.3d 352, 355-356 (Tex.Crim.App.2002).

      . See discussion, infra.

      . See discussion, infra.


author: FELIPE REYNA, Justice.

text:
    Hubert Lee STEADMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-13-00168-CR.
    Court of Appeals of Texas, Waco.
    Jan. 26, 2005.

      John M. Hurley, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Christy Barber, McLennan County Asst. Dist. Atty., Waco, for appel-lee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Hubert Lee Steadman of two counts of sexual assault. Steadman pleaded “true” to an allegation that he had been previously convicted of sexual assault, and the jury assessed his punishment at life imprisonment on both counts. Steadman contends in five issues that: (1) the enhancement allegation of the indictment did not give him adequate notice that the State would seek a mandatory life sentence; (2) the life sentences constitute cruel and unusual punishment; (3) the life sentences violate his right to equal protection; (4) the punishment verdict is invalid because the court failed to submit a separate verdict form for each count; and (5) the punishment verdict is void because the jury rather than the court found the enhancement allegation “true.”

Because Steadman failed to preserve most of these complaints or is estopped to raise them, because the court’s charge is not erroneous, and because Steadman suffered no egregious harm from the punishment charge that was submitted, we will affirm.

Steadman Failed To Preserve His Objection To The Indictment And The Court’s Charge Is Not Erroneous

Steadman contends in his first issue that the enhancement allegation did not give him adequate notice that the State would seek mandatory life sentences under section 12.42(c)(2) of the Penal Code and that the court erroneously instructed the jury to sentence him to life imprisonment on both counts.

The caption of the indictment reads in part, “2nd Degree Felonies Enhanced.” The body of the indictment alleges two counts of sexual assault, both second degree felonies. The sole enhancement allegation asserts that Steadman was previously convicted of sexual assault. As Steadman notes, if the general enhancement provision of section 12.42(b) applies, then his punishment would be for a first degree felony (5 to 99 years or life and up to a $10,000 fine). See Tex. Pen.Code Ann. § 12.32 (Vernon 2003), § 12.42(b) (Vernon Supp.2004-2005). Conversely however, because Steadman was convicted of sexual assault and has a prior conviction for the same offense, the mandatory life provision of section 12.42(c)(2) applies. Id. § 12.42(c)(2)(A)(i), (B)(ii) (Vernon Supp. 2004-2005).

Steadman contends that because the caption of the indictment states generally “2nd Degree Felonies Enhanced” and because the indictment does not specifically refer to section 12.42(c), he did not have adequate notice that the State would seek mandatory life sentences. Ordinarily, a complaint regarding the adequacy of an indictment must be raised before trial to preserve the issue for appellate review. See Tex.Code Crim. Proo. Ann. art. 1.14(b) (Vernon Supp.2004-2005); Sanchez v. State, 120 S.W.3d 359, 364 (Tex.Crim.App.2003). In a similar context however, the Court of Criminal Appeals has held that the pretrial objection requirement of article 1.14(b) does not apply to certain punishment issues relative to the indictment. See Luken v. State, 780 S.W.2d 264, 268 (Tex.Crim.App.1989); Brooks v. State, 921 S.W.2d 875, 879 (Tex.App.-Houston [14th Dist.] 1996), aff'd, 957 S.W.2d 30 (Tex.Crim.App.1997).

In Luken, the defendant complained that neither the indictment nor any special plea gave him notice that the State would seek a deadly weapon finding. See Luken v. State, 744 S.W.2d 274, 275-76 (Tex.App.-Houston [1st Dist.] 1987), vacated, 780 S.W.2d 264 (Tex.Crim.App.1989). The State argued that the defendant failed to preserve the complaint because he did not raise a pretrial objection to the indictment under article 1.14(b). See Luken, 780 S.W.2d at 266.

The Court of Criminal Appeals rejected this contention.

Plainly put, an indictment sufficient to allege an offense, but containing no allegation of use or exhibition of a deadly weapon, suffers no “defect, error, or irregularity of form or substance” on that account. It would be unconscionable to require an accused to complain that the State has failed by its pleadings to present an issue on some fact beyond what is necessary to “eharg[e] a person with the commission of an offense,” Article V, § 12, supra, which additional fact may further adversely impact his own liberty interest.

Id. at 268 (citation omitted) (footnote added).

The Court went further to discuss the interaction of article 1.14(b) and enhancement allegations in general.

Even after enactment of Article 1.14(b), supra, we would not hold that a trial court is authorized to find, or to submit the question to the jury whether an accused has been formerly convicted for purposes of enhancement of punishment under Chapter 12 of the Penal Code, on the theory that the accused failed to object that the indictment did not include enhancement allegations. Again, there is no “defect, error, or irregularity” in an indictment containing no enhancement paragraph. It simply fails to place the accused’s status as a recidivist in issue. Surely in an accusatory system of criminal justice we cannot require, consonant with due course of law, that the accused complain he faces too lenient a range of punishment!

Id.

The Fourteenth Court of Appeals applied this latter observation in Brooks. There, the defendant contended that the court erred by submitting an issue to the jury regarding enhancement of punishment because indictment did not contain an enhancement allegation. Brooks, 921 S.W.2d at 877. The Court held that an objection under article 1.14(b) was unnecessary in this instance because the indictment was not defective. Id. at 879.

Here, Steadman’s case is different than Luken and Brooks because Steadman argues that the enhancement allegation is defective (ie., inadequate). Because of this distinction, we hold that Steadman failed to preserve his complaint regarding the adequacy of the enhancement allegation because he failed to raise it by pretrial objection. See Tex.Code Crim. Proo. ANN. art. 1.14(b); Shaw v. State, 794 S.W.2d 544, 544 (Tex.App.-Dallas 1990, no pet.); Chambless v. State, 776 S.W.2d 718, 719 (Tex.App.-Corpus Christi 1989, no pet.); accord Sanchez, 120 S.W.3d at 364.

Nevertheless, Steadman also contends that the court erred by charging the jury that it must sentence him to life imprisonment on both counts under section 12.42(c)(2) rather than charging the jury under the general enhancement provision of section 12.42(b). Even though Stead-man did not raise this objection at trial, he may raise this issue for the first time on appeal, but he can obtain a reversal only if the alleged error resulted in egregious harm. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)); see also Kucha v. State, 686 S.W.2d 154, 155 (Tex.Crim.App.1985) (ap-plyng Almanza standard to punishment charge). To prevail in this instance, Steadman must establish that the charge is erroneous and that this error caused him egregious harm. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Phillips v. State, 72 S.W.3d 719, 721 (Tex.App.-Waco 2002, no pet.).

The indictment alleges that Steadman committed two sexual assaults and that he has a prior conviction for sexual assault. The court instructed the jury in the charge that, because the jury had convicted Stead-man of two counts of sexual assault and because he pleaded “true” to the enhancement allegation, a mandatory life sentence was required by law for each count.

The court’s charge comports with the enhancement allegation in the indictment, with the defendant’s plea to the enhancement allegation, and with section 12.42(c)(2). Thus, no error is shown. Cf. Throneberry v. State, 109 S.W.3d 52, 60 (Tex.App.-Fort Worth 2003, no pet.) (punishment charge erroneous because it included enhancement instruction despite State’s failure to give notice); Brooks, 921 S.W.2d at 879 (same).

Accordingly, we overrule Steadman’s first issue.

Steadman Failed To Preserve His Constitutional Claims

Steadman contends in his second issue that his life sentences constitute cruel and unusual punishment in violation of the Eighth Amendment. He contends in his third issue that his sentences violate the Fourteenth Amendment’s equal protection guarantee. However, because he did not raise these contentions at trial, he has failed to preserve them for appellate review. See Schneider v. State, 645 S.W.2d 463, 466 (Tex.Crim.App.1983) (cruel-and unusual-punishment claim not preserved); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (same); Steadman v. State, 31 S.W.3d 738, 742 (Tex.App.-Houston [1st Dist.] 2000, pet. ref d) (equal-protection and cruel-and-unusual-punishment claims not preserved); accord Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App., 2004) (due process claim not preserved). Accordingly, we overrule Steadman’s second and third issues.

Steadman Did Not Suffer Egregious Harm Because Of The Court’s Failure To Submit Separate Verdict Forms

Steadman contends in his fourth issue that the court erred by failing to submit a separate verdict form for each count under which he was convicted. Because Steadman did not object to the punishment charge, he can obtain reversal only if the alleged error caused him egregious harm. See Mann, 964 S.W.2d at 641; Phillips, 72 S.W.3d at 721.

Article 37.07, section 1(b) provides that “If the plea is not guilty, [the jurors] must find that the defendant is either guilty or not guilty, and, except as provided in Section 2, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” Tex.Code Ckim. PROC. Ann. art. 37.07, § 1(b) (Vernon Supp.2004-2005). Section 2 establishes the procedures by which a defendant may elect to have the jury assess his punishment or waive that right. Id. § 2 (Vernon Supp.2004-2005). Section 2(c) provides that, when a jury is assessing punishment, “[p]unishment shall be assessed on each count on which a finding of guilty has been returned.” Id. § 2(c).

Here, Steadman pleaded “true” to the enhancement allegation. Therefore, he faced a mandatory life sentence on both counts. See Tex. PeN.Code Ann. § 12.42(e)(2)(A)(i), (B)(ii). Accordingly, the trial court should have excused the jury after receiving Steadman’s plea of “true” and assessed Steadman’s punishment without the jury. Tex.Code Crim. Pkoc. Ann. art. 37.07, § 1(b); Zaragosa v. State, 516 S.W.2d 685, 686 (Tex.Crim.App.1974); Corswell v. State, 679 S.W.2d 155, 156 (Tex.App.-Dallas 1984, no pet.); Lynch v. State, 635 S.W.2d 172, 174-75 (Tex.App.-Houston [1st Dist.] 1982), rev’d on other grounds, 643 S.W.2d 737 (Tex.Crim. App.1983).

Even if we were to conclude (which we do not) that the court erred by failing to submit separate verdict forms to the jury, no “egregious harm” is shown. The jury had only one option for sentencing: a life sentence on both counts. Steadman and his counsel knew this before the trial began, as evidenced by counsel’s comments made in Steadman’s presence during a pretrial hearing in which the parties discussed whether the punishment issue should be addressed during voir dire.

Accordingly, we overrule Steadman’s fourth issue.

Steadman Is Estopped To Complain That The Jury Rather Than The Court Found The Enhancement Allegation True

Steadman contends in his fifth issue that, assuming the issue of punishment was not properly before the jury, his punishment verdict is void because the court did not affirmatively find that he had been previously convicted as alleged.

Steadman suggests that the issue of punishment was not properly before the jury because the record contains no indication that he desired jury sentencing. However, the record plainly reflects that Steadman’s counsel insisted at the punishment charge conference that the matter be submitted to the jury. See Rushton v. State, 695 S.W.2d 591, 594-95 (Tex.App.Corpus Christi 1985, no pet.) (defendant may verbally request jury sentencing at trial).

Therefore, because Steadman insisted that the jury assess punishment, he is estopped to complain that the jury rather than the court found the enhancement allegation “true.” See Ripkowski v. State, 61 S.W.3d 378, 388-89 (Tex.Crim.App.2001); Wisdom v. State, 143 S.W.3d 276, 280 (Tex.App.-Waco 2004, no pet.); see also Fontenot v. State, 500 S.W.2d 843, 844 (Tex.Crim.App.1973) (no reversible error shown where defendant did not object to jury assessing punishment). Accordingly, we overrule his fifth point.

We affirm the judgment.

      . After indicating the style of the case, the caption of the indictment reads as follows: PRIMARY OFFENSE: Sexual Assault (Enhanced) — Count I; Sexual Assault (Enhanced) — Count II § 22.011, Texas Penal Code 2nd Degree Felonies Enhanced

      . Article V, § 12(b) of the Texas Constitution provides in pertinent part, "An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense.”

      . The statement in the caption of the indictment that Steadman was charged with "2nd Degree Felonies Enhanced” has no bearing on this issue because the caption is not considered to be a part of the indictment. See Stansbury v. State, 128 Tex.Crim. 570, 82 S.W.2d 962, 964 (1935); Miller v. State, 687 S.W.2d 33, 41 (Tex.App.-Corpus Christi 1985), aff'd, 736 S.W.2d 643 (Tex.Crim.App.1987); see also Jackson v. State, 880 S.W.2d 432, 433 (Tex.App.-Houston [14th Dist.] 1994, pet. ref’d) (applying same rule to information).


author: TOM GRAY, Chief Justice.

text:
    Shawna BELLER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-02-00282-CR.
    Court of Appeals of Texas, Waco.
    Jan. 26, 2005.
    Karen Zellars, Spring, for appellant.
    John S. Holleman, Polk County Dist. Atty., William Lee Hon, Polk County Asst. Dist. Atty., Livingston, for appellee.
   DISSENTING OPINION TO ABATEMENT ORDER OF DECEMBER 1, 2004, ON PETITION FOR DISCRETIONARY REVIEW

TOM GRAY, Chief Justice.

For the reasons stated in my dissenting opinion to the order withdrawing the judgment and opinion on petition for discretionary review, the Court lacks jurisdiction to issue an abatement order. See Better v. State, No. 10-02-00282-CR, 2004 WL 3015320, at *1, 2004 Tex.App. LEXIS 10354, at *4 (Tex.App.-Waco Dec. 29, 2004, order) (per curiam) (Gray, C.J., dissenting). Accordingly, I dissent.