IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0753-20

BETHANY GRACE MACIEL, Appellant

v.

STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

FROM BRAZOS COUNTY

NEWELL, 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 determination 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 (after holding that error occurred) to 

address the question of whether a particular error harmed the 

defendant. Reflexively remanding for an evaluation of harm under wellestablished 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 regardless of whether the issue is raised by the parties. And, we 

have recognized that 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 error, 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 — 3

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 When 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 conducted 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 wrought 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 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 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 in 
Maciel 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 little “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 when we 

have the chance.

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

Filed: October 6, 2021

Publish

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 appeals.”).

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.2d 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.”).