Druery v. State

In Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007), the trial court found a jailhouse letter authenticated by evidence showing that: (1) the defendant was in a position to have mailed the letter from the jail; (2) the writer identified himself by the defendant's nickname; (3) the letter was sent to the defendant's cousin, a witness in the case; (4) the content of the letter identified five witnesses who were going to testify against the defendant; (5) the letter included the cover pages of the witnesses interviews with police, implying that the writer had access to those interviews; (6) the letter discussed facts know to the defendant about his case; (7) the letter stated that the return address is false because of an attempt to keep jail staff from reading the letter; (8) appellant's fingerprints were on the letter. Id. at 503. The court also noted that there was no evidence of tampering or any other fraud regarding the letter. Id.The Texas Court of Criminal Appeals applied the doctrine to an error that the appellant claimed was fundamental. In Druery, the capital-murder defendant complained that the trial court should have instructed the jury on the lesser-included offense of first-degree murder and that the failure to include such an instruction was "fundamental error." Id. at 505. The Court applied the invited-error doctrine and concluded that because the defendant, through his attorney, had "affirmatively requested" that the instruction on the lesser-included offense not be given, he was estopped on appeal from claiming that it was error to omit the instruction. Id. at 506. Therefore, the Court did not address the merits of whether the failure to give the instruction on the lesser-included offense was error or had "egregiously harmed" the defendant. Id. The Texas Court of Criminal Appeals applied the doctrine to an error that the appellant claimed was fundamental. There, the appellant, who was convicted of capital murder, complained that the trial court should have instructed the jury on the lesser included offense of first-degree murder and that the failure to include such an instruction was "fundamental error." Id. at 505. The court first observed the general rule that if there was no proper objection to an alleged jury charge error, then the appellant must claim that the alleged error was fundamental, and he can obtain a reversal only if there was "egregious harm." Id. The court then noted, however, the doctrine of invited error. Id. at 505-06. Thus, because the appellant, through his attorney, had "affirmatively requested" that the instruction on the lesser included offense not be given, he was estopped on appeal from claiming that it was error. Id. at 506. Therefore, the court did not address whether the failure to give the instruction on the lesser included offense was error or had "egregiously harmed" the appellant. Id.