## IN THE COURT OF CRIMINAL APPEALS OF TEXAS

N O

. PD
- 0753
- 20

BETHANY GRACE MACIEL , Appel l ant

v.

STATE OF TEXAS

ON APPELLANT ’ S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS FROM BRAZOS COUNTY

N EWELL , J. , filed a concurring opinion

. I agree that the court of appeals erred to hold that Appellant was
not entitled to a jury instruction on the defense of necessity. And I
agree with the Court that the proper course of action is to remand the
case to the court of appeals for a determinatio n of whether the refusal
of the defensive instruction harmed Appellant. I join the Court’s opinion.Maciel Concurring

— 2

I write separately because I believe the Court should recognize

that an evaluation for harm flowing from error is as much a systemic
requirement as determining whether that error has been preserved. As
such, this Court should feel free ( a fter holding that error occurred ) to
address the question of whether a particular error harmed the

defendant . Reflexively remanding for an evaluation of harm under well

established standards is unnecessary

.
We have long recognized that courts of appeals should address
whether error has been preserved regardless of whether the parties
raise it because preservation of error is a systemic requirement. 1 This

is true re gardless of whether the issue is raised by the parties. And, we
have recognized tha t this Court can and should do so when confronted
with a preservation issue. 2
Similarly, we have recognized that all errors, except for certain
federal constitutional errors labeled by the United States Supreme Court
as “structural”, are subject to a harm analysis. 3 And we have
recognized, at least in the context of jury charge er ror, that neither

1 See, e.g. , Darcy v. State , 488 S.W.3d 325, 327

- 28 (Tex. Crim. App. 2016).

2 See, e.g. , Ford v. State , 305 S.W.3d 530, 533 (Tex. Crim. App. 2009).

3 See, e.g. , Lake v. State , 532 S.W.3d 408, 411 (Tex. Crim. App. 2017).Maciel Concurring

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party bears a burden to establish that the error was harmful. 4 This is

because burdens and requirements of proving actual facts are
appropriate in the law of evidence, but they have little meaning when it
comes to a harm analysis. 5 Wh en conducting a harm analysis, the
reviewing court makes its own assessment as to what degree of

likelihood exists as to the prejudicial or non

- prejudicial impact of a
particular error. 6 Like the issue of preservation, assessing harm is
effectively condu cted independently of the arguments of the parties.
While I recognize the value of affording a court of appeals the
opportunity to address issues in the first instance, I disagree that this
Court benefits from having the court of appeals conduct a harm analysis

after this court has made the determination of error . For example, we
have noted that remand is applicable to allow a court of appeals to
wrestle with undecided legal issues on the merits of a claim because we
might benefit from a “carefully wrou ght decision from the court of
appeals .” 7 But we did so in the context of an unresolved claim on the

4 See, e.g. , Warner v. State , 245 S.W.3d 458, 463 (Tex. Crim. App. 2008).

5 Ovalle v. State , 13 S.W.3d 774, 787 (Tex. Crim. App. 2000).

6 Id. (quoting W AYNE R. L A F AVE & J EROLD H. I SRAEL , C RIMINAL P ROCEDURE 1165 (2d ed. 1992) )

.

7 McClintock v. State , 444 S.W.3d 15, 21 (Tex. Crim. App. 2014) (“But the issue of the proper application of the exclusionary rule to the facts of this case is not remotely clear cut, and we believe that the proper disposition here should be to remand for the court of appeals to address it in the first instance. The parties make a number of substantial arguments inMaciel Concurring

— 4

merits

. 8 In contrast, conducting a harm analysis is based upon an

examination of the record under established harm standards. 9 Indeed,

there is littl e “legal analysis” involved as we identify the applicable harm

standard before we remand and we clarify how the analysis should be

conducted. 10 Rather than expecting the courts of appeals to be
clairvoyant on remand, we should just answer the question whe n we

have the chance.
With these thoughts, I join the Court’s opinion.

Filed : October 6, 2021

Publi sh

support of their respective positions in this Court, and our resolution of the issue (if any should even be necessary after a remand) would benefit from a carefully wrought decision from the court of appeal s.”).

8 Id.

9 See, e.g. , Hernandez v. State , 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (“We reverse the judgment of the Court of Appeals and remand for a harm analysis pursuant to Rule of Appellate Procedure 44.2(a).” ); Aguierre

- Mata v. State , 992 S.W.2 d 495, 499 (Tex. Crim. App. 1999) (“Accordingly, we grant the State’s petition, vacate the judgment of the Court of Appeals, and remand the cause to that court to conduct a harm analysis pursuant to Rule 44.2(b).”).

10 See, e.g. , Haggard v. State , 612 S.W. 3d 318, 330 (Tex. Crim. App. 2020) (“Having clarified the harm analysis for the denial of face

- to

- face confrontation, we reverse the judgment of the court of appeals and remand the cause to that court to reassess whether Haggard was harmed.”).