What the Texas Court of Criminal Appeals found in Jennings v. State, No. PD-0261-09, 2010 WL 298071 (Jan. 27, 2010) is not very surprising. If the verdict form for the jury to fill out only offers a verdict of "guilty" for a lesser included offense but does not offer "not guilty," even if the defendant does not object, an appeals court needs to consider whether the error caused egregious harm. If it did, the case needs to be reversed. The Amarillo Court of Appeals said that Jennings had waived the error entirely by not objecting. Even Presiding Judge Keller seemed to say that Amarillo was too much a stickler here. I get the impression, though, that her sending the case back to Amarillo is for them to use the right verbiage with their affirmation, while the other judges are sending it back to Amarillo to a new trial.
The opinion says that NO BODY appeared to notice this flaw in what was given to the jury. This is very much contrary to my experience. The trial judge, the prosecutor, the defense counsel, each of them-- for very different reasons have a major stake in not making a big goof. The judge doesn't want to look bad in front of the jury and the courts of appeals. The prosecutor doesn't want to have the judge look bad. And what must the client have thought when her attorney forgot to ask the jury for the option to acquit her on one of the charges? Thank God Darrell Jordan and the Texas Supremes kept defenders from being sued for malpractice..
Lastly, a research note: Judge Cochran says that Amarillo mistakenedly relied on a couple of pre-Almanza (686 S.W.2d 157, Tex. Crim. App. 1984) opinions (implicitly-- the cases aren't mentioned in what the Seventh District wrote), while Presiding Judge Keller says her colleagues misunderstand the old cases and the historical practice they addressed. If you're appealing a criminal jury charge, be very careful to be able to articulate why the cases you're using that predate Almanza are not overruled by it-- or don't use them.