COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-09-271-CR

SEAN KRESSE	APPELLANT

	V.

THE STATE OF TEXAS	STATE

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	FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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	MEMORANDUM OPINION1

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I.  Introduction

	In six points, Appellant Sean Kresse complains that the trial court erred by admitting inadmissible hearsay testimony and by including an erroneous instruction on voluntary intoxication in its punishment charge to the jury.  We reverse and remand to the trial court for a new punishment trial. 

II.  Factual and Procedural History

	In September 2007, Kresse and Lorena Sandoval were dating and living together.  After work on September 14, Kresse drank a few beers at his place of employment and then walked to a friend’s house, where he drank some more.  Kresse then went home and strangled Lorena to death.  On May 12, 2009, Kresse pleaded guilty to Lorena’s murder and requested that a jury assess punishment.  The jury assessed punishment at fifty years’ confinement, and the trial court sentenced Kresse accordingly.  This appeal followed.

III.  Voluntary Intoxication Instruction

	In Kresse’s third and fourth points, he asserts that the trial court erred by including a voluntary intoxication instruction in the jury charge and that this error resulted in some harm to him.  Over Kresse’s objection, the trial court sua sponte instructed the jury that “[v]oluntary intoxication does not constitute a defense to the commission of a crime,” and it included penal code section 8.04’s definition of intoxication in its punishment charge to the jury.2 Immediately following the voluntary intoxication instruction and the definition of “intoxication,” the jury charge read:  “It now becomes your duty under the law to determine the punishment which should be assessed against this defendant.” In his fifth and sixth points, Kresse argues that this instruction constituted an impermissible comment on the weight of the evidence and that this resulted in harm to his right to a fair trial.

A.  Standard of Review

	Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).  Initially, we must determine whether error occurred.  If so, we must then evaluate whether sufficient harm resulted from the error to require reversal.  Abdnor, 871 S.W.2d at 731–32.  Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of [the] defendant,” which means no more than that there must be some harm to the accused from the error.  Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (“A claim of jury-charge error is reviewed using the procedure set out in Almanza.”).  In other words, a properly preserved error will require reversal as long as the error is not harmless.  Almanza, 686 S.W.2d at 171. In making this determination, “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 weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”  Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).

B.  Analysis

	The State concedes that the inclusion of the voluntary intoxication instruction during the punishment stage of the trial was erroneous because, if applicable, it is to be given during the guilt-innocence stage of trial, not punishment.  See Taylor v. State, 885 S.W.2d 154, 156 (Tex. Crim. App. 1994); see also Sakil, 287 S.W.3d at 26 n.6.  However, it argues that no harm occurred because 

	the jury would not have relied on the instruction.  The instruction, by its clear language, applies to a defense rather than a mitigating factor in punishment.  Since [Kresse] pleaded guilty and judicially confessed to the offense, the instruction had no bearing on the jury’s function to assess punishment.  Further, neither the State nor [Kresse] argued in closing that [Kresse’s] voluntary intoxication should play any role whatsoever in assessing punishment.  The result of the erroneous instruction here was no different than the result of an erroneous Section 8.04 instruction in the guilt/innocence phase of trial. . . .  [T]he Section 8.04 instruction in this case was superfluous, innocuous, and resulted in no harm to [Kresse].

	The State attempts to bolster its argument by referring us to Olivarez v. State, Nos. 05-04-00862-CR, 05-04-00863-CR, 2005 WL 1163973 (Tex. App.—Dallas May 18, 2005, pet. ref’d) (not designated for publication), and Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004).  However, both are distinguishable:3  Olivarez concerned an unobjected-to voluntary intoxication instruction given during the guilt-innocence stage of trial, not during the punishment phase.  See 2005 WL 1163973, at *3.  And Ross involved an erroneous instruction on parole, which the court noted was corrected by Ross’s counsel during closing argument.  See 133 S.W.3d at 623–24 (concluding that there was not a reasonable likelihood that the good conduct time language in the parole charge misled the jury into believing that a life-sentenced appellant would be released from prison in less than forty years). 

	Kresse responds that the testimony during his trial was replete with evidence of the history of his intoxication, its effect on his actions, and his intoxication at the time of the murder, and that the State emphasized his inebriation in both its opening statement and its closing argument.  Specifically, he points out that the State opened by stating that “[t]he recurring theme you’re going to hear is that Lorena did not like it when Sean drank because he became a different person.  He became angry.  He became combative,” and closed with accusing Kresse of being an “alcohol-fueled ticking time bomb” who “gets angry [and] wants to fight.”  Therefore, Kresse argues that the inclusion of the voluntary intoxication instruction in the punishment charge drew attention to one area of evidence and enhanced the State’s argument for punishment.

	Turning to the Almanza factors, we first observe that the negative reference to intoxication in the charge is the only factual evidentiary matter in the entire charge.  Thus, the intoxication instruction, in its proximate location to the trial court’s instruction to the jury to determine punishment, was likely to draw the jury’s attention to Kresse’s history of drinking prior to the murder. Further, Kresse’s history of drinking was introduced repeatedly throughout the trial and emphasized by the State during its opening statement and closing argument.  Bearing in mind that we are required to reverse if we determine the presence of “any harm, regardless of degree, which results from a preserved charging error,” we hold that the instruction incorrectly emphasized a portion of the State’s case and drew particular attention to one aspect of it.  See Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“Cases involving preserved charging error will be affirmed only if no harm has occurred.”). Accordingly, we sustain Kresse’s third and fourth points.4  

IV.  Hearsay

	In Kresse’s first two points, he complains that the trial court abused its discretion by admitting Lorena’s friend Ruth Zavala’s testimony containing inadmissible hearsay in violation of rule of evidence 802 and that this decision adversely affected his right to a fair trial.  Although Kresse’s third and fourth issues are dispositive, we address Kresse’s complaint here in the interest of judicial economy because this is a challenge likely to be raised in Kresse’s new punishment trial.  See Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—Fort Worth 2004, pet. ref’d).

	During the punishment trial, Kresse objected that portions of Ruth Zavala’s testimony constituted hearsay, and the trial court held a hearing outside the jury’s presence to determine the testimony’s admissibility.5  The trial court overruled Kresse’s objection and allowed Zavala to testify about events Lorena had told her about.

	“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  We observe that the State’s argument at trial that Zavala’s testimony falls under the hearsay exception found in rule 804(a)(4)—that is, that the declarant is unavailable—is misguided.  Rule 804(a)(4) states that a declarant is “unavailable” if she is unable to be present or to testify at the hearing because of death.  Tex. R. Evid. 804(a)(4).  This is not a hearsay exception.  Rule 804(a) only provides guidance as to who is an “unavailable witness.”  Id.  It is Rule 804(b) that sets out the exceptions applicable to testimony by a declarant who is unavailable as a witness—these exceptions are:  (1) former testimony, (2) dying declarations, and (3) statements of personal or family history.  See Tex. R. Evid. 804(b)(1)–(3).  None of these exceptions apply here.6  Thus, the statements are not admissible under rule 804.

V.  Conclusion 

	Having sustained Kresse’s dispositive issues, we reverse the trial court’s judgment, and we remand this case for a new trial on punishment.

							BOB MCCOY

							JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 22, 2010