Smith v. State

I join Chief Justice Frost’s opinion with the exception of section II.A. I write separately to address appellant’s second issue, in which he seeks a new trial on punishment. Appellant contends the trial court erroneously included a voluntary intoxication instruction in the punishment phase jury charge when the instruction is permissible only in the guilt/innocence phase charge. I conclude the challenged instruction was error under the circumstances of this case, However, based on my review of the record in light of the harm factors articulated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.…