I respectfully dissent.

Appellant was convicted of murder and sentenced by a jury to sixty-years confinement in the Texas Department of Criminal Justice - Institutional Division. The court of appeals reversed the conviction, finding that appellant was entitled to an instruction on the right to defend against multiple assailants and that the lack of such instruction constituted some harm to appellant. Dickey v. State, 979 S.W.2d 825 (Tex.App.--Houston (14^th Dist.) 1998, pet. granted). We granted the state's petition for discretionary review to consider whether "the court of appeals erred in holding appellant was harmed by the trial court's failure to give a multiple assailants charge."⁽¹⁾

In Almanza, we held, inter alia, that the actual degree of harm "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole."⁽²⁾ Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). While the court of appeals found that the trial court erred in refusing to instruct the jury on his right to defend himself against multiple assailants and further concluded that the error was harmful, nowhere in its opinion did the court of appeals discuss or apply the factors we have held are to be considered in assessing the degree of harm. Dickey, 979 S.W.2d at 828; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). Rather, the court of appeals concluded:

The State argues the error was harmless because an instruction on self-defense was included in the charge. We disagree. While the trial court's instruction on self-defense was extensive and quite detailed, it was based on Brown being the only assailant. It did not cover the situation that allegedly occurred here, namely, that appellant believed Brown and Marvis were going to attack him, Marvis reached for his gun, and appellant shot Brown. This is precisely the situation covered in a multiple assailants instruction. Thus, we find the error constitutes some harm to appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).

Dickey, 979 S.W.2d at 828.

We faced a similar situation in Bailey v. State, where the court of appeals cited Almanza, but did not discuss or apply the factors mandated therein. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993). As we found there, and as I believe we should find in the instant case, that because the charge error "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole," the court of appeals erred in failing to consider and apply these factors required by Almanza. See Almanza, 686 S.W.2d at 171; see also Bailey, 867 S.W.2d at 43.

Assuming, arguendo, that this Court is authorized to perform a harm analysis in these circumstances, the majority has failed to do so, saying only that "[g]iven the ambiguity of the evidence, we conclude that Dickey has failed to meet his burden of proving that he suffered some actual harm . . . ." Ante, at ___ (slip op. at ___). A proper Almanza analysis would show that appellant was indeed harmed and is entitled to a new trial.

Because appellant properly preserved error in the charge with regard to the absence of a multiple-assailant instruction, a reversal is mandated if appellant shows "some harm." Almanza, 686 S.W.2d at 171. We have interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). In determining whether there was "some harm," the actual degree of harm must be determined by balancing (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the argument of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

Although the jury charge did not contain a multiple-assailants charge, it did include a self-defense instruction. As the court of appeals noted, while the self-defense instruction was extensive and detailed, it was based upon Brown being the only assailant. Dickey, 979 S.W.2d at 828. Evidence was presented, however, that revealed that appellant believed that Brown and Marvis were both going to attack him. As properly noted by the court of appeals, the instruction did not cover this situation. The majority seems to fear that under such reasoning "every single case of multiple assailants in which the trial court failed to give the proper instruction would result in harm." Ante, at ___ (slip op. at ___). This may be true in the extremely rare cases, such as this one, that warrant a multiple-assailants instruction and where the instruction is not given, and may also be the correct and just result.

The second Almanza factor requires a review of the evidence, including a determination of whether the jury charge error related to a contested issue. In his confession, appellant stated:

They (Brown and Marvis) started looking at each other and I felt they were about to turn on me. [Marvis] had a pistol in his pants pocket and he had his hand on the gun. I heard him cock the hammer back. [Brown] started to go for his gun that he had in his front waist band. I thought they were going to team up on me so I pulled my Glock .40 from my waist and fired at [Brown]. After that [Marvis] started shooting at [Brown] who was on the ground. I was surprised because I expected him to shoot me. [Marvis] had a colt .38 revolver. After [Marvis] shot so many times he turned the gun on me and pointed it at my head. He pulled the trigger but it just clicked. We both started fighting over the Glock.

Appellant's written confession constituted some evidence that he believed he was confronting two attackers. While the confession need not be corroborated in order to be sufficient evidence to mandate a multiple-assailant instruction,⁽³⁾ additional evidence was introduced in front of the jury that did corroborate portions of the confession. For example, consistent with appellant's confession that Marvis "pulled the trigger but it just clicked," other evidence was introduced that the .38 revolver used by Marvis had misfired. A Houston police sergeant assigned to the homicide division testified that he found a Rome .38 Special at the scene, in the parking lot, which was "recovered with five fired casings in it and one misfired case." Later in his testimony, the officer reiterated that "there were five fired casings and one appeared to have been fired but did not discharge." Another police officer also testified in front of the jury that there was a round that "didn't go off." Thus, the existence of a misfired round from the gun used by Marvis, which corroborated a portion of appellant's confession, was repeatedly presented to the jury.

Appellant admits that he is the one who brought Brown to Marvis' home and that Marvis was angry that Brown owed him money. Ante, at ___ (slip op. at ___). The majority assumes that this indicates the lack of collusion between Brown and Marvis, and therefore negates the multiple-assailant defense. Id. Even accepting the majority's assumption, the requested jury instruction was related to the contested issue of multiple assailants, an issue which the jury was entitled to evaluate.

The third factor in the Almanza analysis is the jury argument. This factor weighs heavily in favor of appellant. During closing arguments, the prosecutor made several references to the multiple-assailants theory:

[Appellant] says, I felt they were about [to] turn on me. Zerick (sic) (Marvis) had a pistol in his pocket, and he had his hand on the gun, I heard him cock the hammer back. Now, if you were afraid of something - - then he (appellant) says, about Carlton Brown, he started to go for his gun that he had in his waistband. Doesn't tell you what he did to go for that gun. You know, based on the pictures, that he was dressed in an oversized shirt, and that gun was inside. He did something that looked like he was going for a gun. Now, if you're scared of both of these people, who are you gonna shoot, the one that looks like he's maybe gonna go for a gun, or the one you already know has got the gun in his hand with the hammer cocked back.

Thus, the state argued against inclusion of the multiple-assailant instruction, yet presented this very argument for the jury's consideration. The jury was given this information, suggesting that it should make the credibility determination; yet, by virtue of the lack of the appropriate instruction, the jury was then not given the opportunity to do so.

The state continued its argument:

What makes more sense if you want to believe what he's telling you is that was the signal to open fire. I thought they were gonna team up on me, so I fired at Carlton. That doesn't make any sense at all.....

***

How does that make sense? And even if you believe - - and we're going to believe everything he said. I want - - are we just gonna believe everything he said?

The state again acknowledged appellant's belief that he thought Brown and Marvis were going to "team up on" him. The state even urged the jury to believe everything in appellant's confession, but then to conclude that it made no sense. However, if the jury did believe appellant's confession, it could believe that it was appellant's belief that both Brown and Marvis were going to attack him. Whether or not that makes sense is a question for the jury, as the state itself seems to suggest. Yet, again, the jury was prevented from making such credibility determinations by the lack of a multiple-assailant instruction.

Thus, in its closing argument, the state repeatedly presented the issue of multiple-assailants to the jury. But even after the state, in its closing argument, suggested that the jury could believe each and every word of appellant's confession, the jury was not allowed to render a decision based upon the multiple-assailants defense. Such omission weighs heavily in favor of appellant.

The fourth factor in the Almanza harm analysis, other relevant information revealed by the record, has been included in the analysis of the first three factors. I have found no other material, relevant information that should be included.

Based upon the above application of Almanza, I believe that, had a proper Almanza harm analysis been performed, the court of appeals would have reached the same result: appellant suffered some harm in being denied a multiple-assailants instruction and would be entitled to a new trial.

Consistent with a unanimous Court in Bailey, I believe that the judgment of the court of appeals in the instant case should be vacated and this cause remanded to the court of appeals to conduct a proper harm analysis pursuant to our opinion in Almanza. Bailey, 867 S.W.2d at 43. As an alternate disposition, I would hold, after a proper Almanza analysis, that the judgment of the court of appeals should be affirmed. Therefore, I respectfully dissent.

Johnson, J.

Date Delivered: December 15, 1999

En Banc

Publish

1. In its petition for discretionary review, the state presented two grounds for review. The list of granted petitions for April 7, 1999, indicated we had granted the state's petition for discretionary review in total. However, an examination of the relevant paperwork indicates that we granted only ground two.

2. We found in Almanza that these factors apply regardless of whether or not the accused preserved error. Almanza, 686 S.W.2d at 171. We held that if the error in the charge was the subject of a timely objection, as it was in the instant case, then reversal is required if the error constitutes "some harm." Id. We also held that in the absence of a proper trial objection to error in the charge, the accused will obtain reversal only if the error constitutes "egregious harm." Id.

3. In determining whether the evidence raises the issue of a defensive issue charge, all the evidence must be considered, regardless of "whether it is strong, weak, unimpeached or contradicted." Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App. 1984).