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McIntosh v. State

Under the Texas Code of Criminal Procedures Article 36.19, when, as here, a defendant fails to object or states that he has no objection to a charge, an error in the charge does not require reversal unless the record shows "egregious harm" to the defendant. To determine whether a defendant has sustained harm from a non-objected-to instruction, the court considers the entire charge, the state of the evidence, arguments from counsel, and any other relevant information. Houston Court of Appeals, No. 01-08-00582-CR, 10-01-2009

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OPINION

Under Texas Rule of Appellate Procedure 50, we withdraw our July 23, 2009 opinion, substitute this opinion in its place, and vacate our July 23, 2009 judgment.*fn1 A jury found appellant, John Paul McIntosh, guilty of the offense of burglary of a habitation,*fn2 and the trial court, after finding true the allegation in one enhancement paragraph that appellant had one prior felony conviction, assessed his punishment at confinement for ten years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and that the trial court, in its charge, erroneously instructed the jury on the law of burglary of a habitation, the lesser-included offense of criminal trespass, and the facts regarding mistake of fact.

We affirm.

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