Theo Clay Bailey v. State Texas

Opinion ON STATE'S PETITION FOR DISCRETIONARY REVIEW Appellant was convicted of delivery of a controlled substance and, upon
a finding of true as to two enhancement allegations, the jury assessed punishment at sixty years confinement in the Institutional
Division of the Texas Department of Criminal Justice. The Court of Appeals reversed. Bailey v. State, 848 S.W.2d 321 (Tex.
App.--Houston [1st dist.] 1993). We granted the State's petition for discretionary review to consider whether the Court of
Appeals erred in "holding that the appellant was egregiously harmed by a portion of the trial court's charge to the jury."
See TEX. R. APP. P. 200(c)(5). On appeal appellant complained that the trial court erred in submitting at guilt a jury instruction pertaining to evidence
of extraneous offenses.1 The Court of Appeals agreed that the instruction given was erroneous, constituted an improper
comment on the weight of the evidence and drew attention to the fact that appellant exercised his right to remain silent.
Id. at 322. The Court of Appeals concluded the error was harmful. The dissent pointed out that because appellant did not object
to the charge at trial, he had the burden under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (opinion on reh'g),
of showing that the charge was so egregious that he was deprived of a fair and impartial trial. Id. at 323 (Mirabal, J., dissenting).
The dissent set forth and applied the factors identified by this Court in Almanza as appropriate for determining egregious
harm, and concluded that appellant failed to meet his burden. Id. at 323-24.