HERVEY, WILLIE MAURICE, JR. v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1101-19

WILLIE MAURICE HERVEY, JR., Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
WICHITA COUNTY

KELLER, P.J., filed a concurring opinion in which YEARY and KEEL, JJ.,
joined.

The Court says that the State forfeited error by not objecting to the inclusion of a defensive

instruction in the jury charge. This holding is problematic for four reasons and is not necessary to

the resolution of the case. First, the State is not the appealing party, and the Court cites no authority

for the proposition that a non-appealing party can forfeit jury charge error in this way. Second, the

Court’s conclusion is at odds with our recent decision in Lozano v. State,1 where we held that an

1
636 S.W.3d 25 (Tex. Crim. App. 2021).
HERVEY CONCURRENCE — 2

error in a defensive instruction was harmless because the defendant was not even entitled to the

instruction. Third, the Court’s forfeiture conclusion is inconsistent with the holding in Almanza v.

State2 that the absence of an objection to an error in the jury charge does not forfeit the error entirely

but merely changes the harm analysis. Fourth, by encouraging the State to object when the

defendant’s entitlement to a defensive issue is uncertain, the Court’s forfeiture rule undermines the

policy of taking a cautious approach that favors giving defensive instructions. For these reasons, I

think the Court should just assume, without deciding, that Appellant was entitled to a voluntariness

instruction on the charged offense and then proceed with the remainder of its analysis.

1. The State is not the appealing party here.

The Court cites no authority for the proposition that the law of forfeiture can work in the way

the Court claims. The State prevailed at trial by obtaining a conviction and is not the appealing

party. An appellee, who is the “winning” party, does not have to preserve error.3 There is perhaps

a sense in which the State can be said to have “lost” because Appellant got a defensive issue that the

State now thinks he was not entitled to. But the State is not asking for relief. It is not filing a cross-

point asking us to find error in the trial court.4 It is simply asking this Court not to grant relief on

Appellant’s complaint because Appellant’s non-entitlement to the instruction means that he received

a windfall, and so suffered no harm. If it hadn’t done so before, the Court legitimized that sort of

argument in Lozano.

2. The Court’s forfeiture holding is contrary to Lozano.

2
686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).
3
Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022).
4
See TEX. CODE CRIM. PROC. art. 44.01(c).
HERVEY CONCURRENCE — 3

In Lozano, the jury charge included the defense of deadly force in self-defense.5 But the self-

defense instructions included erroneous language about a duty to retreat.6 In finding the errors

harmless, we did a full-blown Almanza analysis, but the fact that Appellant was not even entitled to

a deadly-force self-defense instruction was a determinative part of each of the four factors in the

analysis.7 In looking at the entirety of the jury charge, we explained, “[T]he jury charge factor only

slightly weighs in favor of an egregious-harm finding here where there is no evidence that Appellant

acted in self-defense with his use of deadly force when he shot and killed Jorge.”8 We held that the

“state of the evidence and contested issues” factor weighed against Appellant because he “was not

entitled to a charge on self-defense”9 and “deadly force self-defense was not raised by the

evidence.”10 On the “arguments of the parties” factor, we held, “Erroneous arguments of counsel

about a defensive issue not raised by the evidence do not weigh in favor of finding egregious harm

because the error benefitted the defendant.”11 And on the “other relevant information” factor, we

explained that, though the self-defense instruction was worded erroneously, the defendant “was still

provided with the windfall of a possible acquittal” and that the instructions “increased the State’s

5
636 S.W.3d at 29-30.
6
Id.
7
Lozano, 636 S.W.3d at 31-35.
8
Id. at 31-32.
9
Id. at 32.
10
Id. at 34.
11
Id.
HERVEY CONCURRENCE — 4

burden of proof” beyond what the law actually required.12

Lozano did not say whether the State objected to the instructions. But the analysis clearly

assumed that such an objection would not be necessary. A major point Lozano made was that the

defensive instruction, albeit erroneous, was still a “windfall” to the defendant. That “windfall”

language is reminiscent of our decision in Malik v. State, where we held, in the context of a

sufficiency review, that the State did not have to object to an error in the jury charge that increased

the State’s burden of proof.13 The reasoning in Malik supports the holding in Lozano: A windfall

in the jury instructions should not result in a new trial any more than it would result in an acquittal.

If the wrongness of a defensive instruction just makes the instruction less favorable, and the

defendant was not entitled to the instruction in the first place, it still can only benefit the defendant,

and so the error is harmless.14

The Court does not even cite Lozano, much less distinguish or overrule it. Lozano makes

sense, and we should continue to adhere to it.

3. The Court’s forfeiture holding conflicts with Almanza.

Saying that the State “lost” and can forfeit error creates problems under our Almanza

jurisprudence. Under Almanza, error in the jury charge is never truly forfeited—the absence of an

12
Id. at 34-35.
13
953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (criticizing old Benson/Boozer rule that
required an acquittal when “the State failed to object to an erroneous and/or unnecessary instruction
favorable to the defendant” because it contemplated that a guilty person would be acquitted because
he “received a windfall in the jury instructions”).
14
If, in an unusual case, an erroneous defensive instruction puts a defendant in a worse
position than he would be without the defensive instruction at all, nothing in Lozano prevents an
appellate court from considering that fact in conducting a harm analysis.
HERVEY CONCURRENCE — 5

objection simply affects the standard of harm, making “egregious harm” the applicable harm

standard.15 What might seem like an exception to that principle is really an expression of it: A

defensive issue that is raised by the evidence but not requested by the defense is forfeited, but that

is because it is not error for the jury charge to omit an unrequested defensive issue, even one that

is raised by the evidence.16 But the inclusion of a defensive issue that is not raised by the evidence

is clearly an “error” in the jury charge, even if that particular error prejudices only the State.17

If Almanza applies to the defendant, why doesn’t it apply to the State? If Almanza applied

to the State, the State’s failure to object to the inclusion of the defensive issue in the charge would

be analyzed for egregious harm. But then the question would be: How would that harm analysis

work? By the time the case is before an appellate court, the jury will have convicted the defendant

despite the erroneous submission of a defensive issue. Reversal in favor of the defendant would

seem to undo the obvious lack of harm to the State shown by the fact that the defendant was

convicted. So could we find harm by looking at the State having to retry the case on the basis of an

error in a defensive instruction the defendant was not entitled to? Practically speaking, that would

duplicate the result of the rule in Lozano, but by a more circuitous route.

4. The Court’s forfeiture holding conflicts with taking a cautious approach to defensive
instructions.

15
Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008).
16
Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018).
17
See Bennett v. State, 726 S.W.3d 32, 36-37 (Tex. Crim. App. 1986) (“That it would have
been error for the trial court to have given an instruction on the law of defense of a third person as
it pertained to appellant, since that issue was not raised by the evidence, does not mean the court
lacked authority to instruct the jury on the deceased’s right to defend a third person, should a full
assessment of appellant’s claim of self-defense, as developed by the evidence, warrant it.”)
(emphasis added).
HERVEY CONCURRENCE — 6

In Grey v. State, we explained, in the context of lesser-included offenses, that the State might

sometimes want a lesser-included offense even when a defendant might not be entitled to its

submission.18 We explained that, among other reasons, “[t]here can be a legitimate dispute about

the meaning of the language” of an element of an offense and that “appellate interpretations of

statutes are not always foreseeable and can even involve the overruling of precedent.”19 We

counseled that the State should take a “cautious approach” that favors submitting lesser -included

offenses.20 This approach should be based not merely on maximizing the chance of a conviction but

also on meeting the prosecutor’s duty “to see that justice is done.”21

Lesser-included offenses are in some ways like defensive issues,22 and I think the reasoning

in Grey applies here. The cautious approach is to err on the side of the defendant when it comes to

giving a defensive instruction. In a marginal case, where the defendant’s entitlement to a defensive

instruction is uncertain, it would be better for the trial court to give the instruction rather than have

the parties litigate it on appeal. The State might refrain from objecting for just that reason. Such

caution should be encouraged. But the Court’s forfeiture holding today is contrary to a cautious

approach because it would encourage the State to object in a marginal situation, lest it lose an

argument for upholding the conviction later on appeal. And if the State objects more often to

defensive instructions, trial courts are going to deny them more often.

18
298 S.W.3d 644, 650-51 (Tex. Crim. App. 2009).
19
Id.
20
Id. at 651.
21
Id.
22
Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010).
HERVEY CONCURRENCE — 7

5. We do not need to address the forfeiture issue.

If the Court wishes to avoid addressing whether the submitted voluntariness defensive issue

was raised by the evidence in this case, it can do so without imposing a forfeiture rule. The Court

decides this case adversely to Appellant anyway, so all it has to do is assume without deciding that

the voluntariness instruction was raised by the evidence and then continue with the remainder of its

analysis.

Because the Court creates an untenable forfeiture rule that conflicts with Lozano, Malik, and

Almanza, and conflicts with a cautious approach to submitting defensive issues, I cannot join its

opinion but concur in the Court’s judgment.

Filed: May 1, 2024
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