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Click here for the full text of this decision FACTS:Kim Tunnell had an affair with appellant. She broke off this relationship, but appellant did not want to end the affair. He constantly called Tunnell’s cell phone, leaving voice messages first of love, then of anger, and finally of threats. Fearing violence, Tunnell went to the Bryan Police Department office, reported the telephone harassment and left at least 59 recorded messages with them. At the suggestion of the police, Tunnell then went to her attorney’s office to obtain a restraining order against appellant. As she pulled into the attorney’s parking lot, she saw appellant walking briskly toward her truck. Appellant reached the passenger side of the truck, pulled out a pistol and tried to break the passenger side glass. The window did not break and Tunnell fled in her truck. Eventually, she drove back to the attorney’s office, and he called the police. Motorcycle Officer John Agnew responded to the call, got a description of the car appellant was driving, and soon saw that car, a beige Pontiac Bonneville registered to appellant’s mother. Agnew attempted to arrest appellant but he gave chase and got away. On three other occasions in less than a month, appellant evaded arrest by outracing Bryan or College Station police officers who were attempting to arrest him for stalking and assaulting his former girlfriend. Appellant was finally arrested on Dec. 27, 2001, when Tunnell, at the behest of the police, set up a meeting with appellant. Appellant arrived on a bike. When the police approached and ordered appellant to the ground, he jumped back on his bike and rapidly rode off. The police finally surrounded him as he was riding down a ditch. In a consolidated trial, a jury convicted appellant of stalking, aggravated assault by threat and the four evading-arrest incidents. The jury also found that appellant had used his mother’s Pontiac Bonneville as a deadly weapon during three of the evading-arrest incidents. The 10th Court of Appeals rejected appellant’s claims of legal and factual sufficiency, but it then found unassigned, fundamental, “structural” error in the jury charge, because the charge did not explain that the state had the burden to prove, beyond a reasonable doubt, that appellant used his mother’s car as a deadly weapon. The intermediate appellate court reversed the judgment in the three evading arrest cases that contained deadly weapon findings and remanded those cases for a new trial. HOLDING:The court reversed the intermediate appellate court’s judgment and reinstated the trial court’s judgment. The court first looked to precedent of the U.S. Supreme Court, which has held that a jury charge which incorrectly defines the state’s burden of proof as being less than beyond a reasonable doubt constitutes structural error. It is never harmless error. But the court also noted that recent Supreme Court precedent that a jury instruction “that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Thus, structural error goes to a complete misdirection or failure to instruct on the reasonable doubt standard, but a failure to instruct the jury on one element of an offense or a failure to submit a sentencing issue to the jury is not structural error; it is subject to a harmless-error analysis. The court reasoned that “it naturally follows that the failure to instruct the jury on the state’s burden of proof regarding one element of an offense (or on a sentencing issue) is not structural error.” Applying this law to the facts, the court found no structural error. “The jury instructions did not totally omit any reference to proof beyond a reasonable doubt, nor did those instructions misdirect the jury concerning that burden of proof. Instead, the instructions repeatedly told the jury that the State had the burden to prove every element of the offense beyond a reasonable doubt.” Next, the court stated that if the jury is given a partial or substantially correct charge on reasonable doubt, then any error therein is subject to a harm analysis under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Under Almanza, reviewing courts should consider the following four factors: 1. the charge itself; 2. the state of the evidence including contested issues and the weight of the probative evidence; 3. arguments of counsel; and 4. any other relevant information revealed by the record of the trial as a whole. Moreover, a reviewing court conducting analysis under Almanza uses different standards for analyzing jury-charge errors depending upon whether the defendant did or did not object at trial. To be reversible, any unpreserved jury-charge error must result in “egregious harm” which affects “the very basis of the case,” deprives the defendant of a “valuable right,” or “vitally affect[s] a defensive theory.” Applying the individual Almanza factors to a review of this record, the court concluded that appellant failed to show “egregious harm” � the type and level of harm that affects “the very basis of the case,” deprived him of a “valuable right” or “vitally affect[ed] a defensive theory.” OPINION: Cochran, J., delivered the opinion of the court. Meyers, J., did not participate.

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