Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL
DISTRICT NO. D-15-0520-SA, HONORABLE THOMAS J. GOSSETT, JUDGE
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice.
withdraw our opinion and judgment issued on March 22, 2017,
and substitute the following opinion and judgment in their
place. We overrule the State's motion for rehearing.
Matthew Freeman was charged by indictment with assault on a
family member by impeding the normal breathing or circulation
of the blood, a third-degree felony. See Tex. Penal
Code § 22.01(b)(2)(B). The indictment also alleged a
prior felony conviction, enhancing the offense to a
second-degree felony. See id. § 12.42(a).
Freeman pleaded not guilty to the charged offense but pleaded
guilty to the lesser-included offense of assault on a family
member with bodily injury and pleaded true to the enhancement
paragraph. Following a bench trial, the trial court signed a
judgment convicting Freeman and sentencing him to 15
years' imprisonment. In one appellate issue, Freeman
contends that the trial court violated his constitutional
rights by convicting and sentencing him without finding him
guilty beyond a reasonable doubt. We agree, and we will
reverse his conviction and remand the case for further
Due Process Clause of the Fourteenth Amendment 'protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.'" Miles v.
State, 357 S.W.3d 629, 631 (Tex. Crim. App. 2011)
(quoting In re Winship, 397 U.S. 358, 364 (1970));
see Sullivan v. Louisiana, 508 U.S. 275, 278 (1993)
("This beyond-a-reasonable-doubt requirement, which was
adhered to by virtually all common-law jurisdictions, applies
in state as well as federal proceedings."); Tex. Penal
Code § 2.01 ("All persons are presumed to be
innocent and no person may be convicted of an offense unless
each element of the offense is proved beyond a reasonable
doubt."). This requirement is "basic in our law and
rightly one of the boasts of a free society." In re
Winship, 397 U.S. at 362 (quoting Leland v.
Oregon, 343 U.S. 790, 803 (1952) (Frankfurther, J.,
dissenting)). "The reasonable-doubt standard plays a
vital role in the American scheme of criminal procedure . . .
. The standard provides concrete substance for the
presumption of innocence-that bedrock axiomatic and
elementary principle whose enforcement lies at the foundation
of the administration of our criminal law." Id.
at 363 (internal quotation marks omitted). We will presume
that a trial court applied the reasonable-doubt standard
unless the defendant rebuts that presumption. See In re
D.E.W., 654 S.W.2d 33, 36 (Tex. App.-Fort Worth 1983,
writ ref'd n.r.e.) ("The trial court, sitting
without a jury, is presumed to have used the correct standard
of proof absent a showing to the contrary. The burden is on
appellant to show that the proper standard was not
applied."); see also Ex parte Jackson, 911
S.W.2d 230, 234 (Tex. App.-Houston [14th Dist.] 1995, no
this case, Freeman has rebutted the presumption that the
trial court applied the correct standard. Freeman points out
that, at the conclusion of the guilt-or-innocence phase of
the bench trial, the trial court stated:
The Court finds by the clearer greater weight and degree of
credible testimony that the Defendant is guilty of the
offense of assault by impeding the breath or circulation, as
alleged in Paragraph 1 of the indictment.
This statement indicates that the trial court did not apply
the correct standard. Instead of finding Freeman guilty
"beyond a reasonable doubt, " the trial court
purported to find him guilty "by the clearer greater
weight and degree of credible testimony." We cannot
assume in light of this express statement by the trial court
that it used a different standard in finding Freeman guilty
than the one that it articulated. Therefore, Freeman has met
his burden of showing that the trial court applied the
appellate brief, the State suggests that, even if the trial
court committed constitutional error by applying the
incorrect standard, we should perform a harm analysis
pursuant to Rule 44.2(a). See Tex. R. App. P.
44.2(a) (providing that court of appeals must reverse
judgment of conviction for constitutional error "unless
the court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment").
However, if the trial court's failure to find Freeman
guilty beyond a reasonable doubt was "structural error,
" we must reverse his conviction without performing a
harm analysis. See Schmutz v. State, 440 S.W.3d 29,
35 (Tex. Crim. App. 2014) ("A 'structural' error
'affect[s] the framework within which the trial proceeds,
rather than simply an error in the trial process itself,
' and is not amenable to a harm analysis.") (quoting
Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim.
App. 2008)); see also Arizona v. Fulminante, 499
U.S. 279, 309 (1991) ("These are structural defects in
the constitution of the trial mechanism, which defy analysis
by 'harmless-error' standards."). "All
structural errors must be founded on a violation of a federal
constitutional right, but not all violations of federal
constitutional rights amount to structural errors."
Schmutz, 440 S.W.3d at 35.
United States Supreme Court has held that "a
constitutionally deficient reasonable-doubt [jury]
instruction" is structural error. Sullivan, 508
U.S. at 276. The Court explained that "[d]enial of the
right to a jury verdict of guilt beyond a reasonable
doubt" is an error not subject to a harm analysis
because it violates a "basic protectio[n] whose precise
effects are unmeasurable, but without which a criminal trial
cannot reliably serve its function." Id. at 281
(internal quotation marks omitted; brackets in original). We
conclude that a similar structural error occurs when a trial
judge fails to find a defendant guilty beyond a reasonable
doubt in a bench trial. Requiring a harmless-error analysis
under these circumstances would result in a situation in
which, as Justice Scalia wrote for the Court in
Sullivan, a "reviewing court can only engage in
pure speculation-its view of what a reasonable jury would
have done. And when it does that, the wrong entity judge[s]
the defendant guilty." Id. (internal quotation
marks omitted; brackets in original).
applying the incorrect standard, the trial court denied
Freeman his right to a conviction based on proof beyond a
reasonable doubt. Therefore, we must reverse Freeman's
conviction without performing a harm analysis and remand to
the trial court. See id. at 282 (concluding that
structural error had occurred, declining to perform harm
analysis, and stating that "the case is remanded for
proceedings not inconsistent with this opinion");
Steadman v. State, 360 S.W.3d 499, 510 n.41 (Tex.
Crim. App. 2012) (citing cases where courts found structural
error and remanded for new trial).
we sustain Freeman's ...