The State of Texas v. Albert McKnight--Appeal from County Court at Law No 6 of Bexar County

DISSENTING OPINION

No. 04- 05-00295-CR

The STATE of Texas ,

Appellant

v.

Albert MCKNIGHT,

Appellee

From the County Court at Law No. 6, Bexar County, Texas

Trial Court No. 870052

Honorable Philip Meyer , Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Dissenting opinion by: Sarah B. Duncan , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: October 18, 2006

It is uncontroverted that the trial court's charge on disorderly conduct omitted the public place element. But it is also incontrovertible that if McKnight committed the offense of disorderly conduct, he did so in a public place. The error in the disorderly conduct charge was thus not remotely harmful. Nor was this error the subject of an objection. Accordingly, the majority's affirmance of the trial court's order granting McKnight's motion for a new trial rests solely upon its conclusion that "the record is not required to establish reversible error under either the 'some harm' or 'egregious harm' standard set forth in Almanza in order for the trial court to exercise its discretion in granting a new trial."

I recognize that a trial court may grant a new trial in the interest of justice. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). But it did not even purport to do so here. Rather, the trial judge granted a new trial in this case "[d]ue to error in the portion of [the] jury charge related to Class C lesser included offense of Disorderly Conduct." Since that error was unobjected-to and unquestionably harmless, I fail to see how a new trial serves the interest of justice. Nor can I see how it was anything other than an abuse of discretion, i.e., "arbitrary or unreasonable" and "without reference to any guiding rules or principles." I would therefore reverse the trial court's order. Because the majority instead affirms, I must respectfully dissent.

Sarah B. Duncan , Justice

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