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Niles v. State

Court of Appeals of Texas, Fourteenth District

July 16, 2019

SCOTT NILES, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from County Criminal Court at Law No. 14 Harris County, Texas Trial Court Cause No. 2018917 & 2018918

          Panel consist of Justices Wise, Spain and Poissant.

          OPINION ON REMAND

          MARGARET "MEG" POISSANT JUSTICE

         Appellant was charged by information with two offenses of terroristic threat against a public servant. The jury returned verdicts of guilty in both causes. The trial court assessed punishment at concurrent terms of one year in county jail, probated for two years. Appellant claimed: (1) the trial court abused its discretion in denying a mistrial; (2) the evidence was insufficient to support appellant's conviction in Trial Court Cause No. 2018918; and (3) there was error in both judgments that entitled him to a reformation of the judgment in both cases to reflect that he was convicted of a Class B misdemeanor rather than a Class A, and a new sentencing hearing because the sentences assessed were outside the range of punishment for a Class B misdemeanor.

         In his opening brief, appellant claimed that although he was charged in both cases with committing the offense of terroristic threat against a public servant, the jury charge in each case only authorized conviction for the lesser included offense of terroristic threat.[1] Therefore, it was error for the trial court to enter judgments convicting him of Class A misdemeanors and to sentence him accordingly.

         We determined the trial court did not abuse its discretion in denying appellant's motion for mistrial and the evidence was sufficient to support appellant's conviction in Trial Court Cause No. 2018918 and overrule appellant's first two issues. Niles v. State, No. 14-15-00498-CR, 2016 WL 7108248 (Tex. App.- Houston [14th Dist.] Dec. 6, 2016) (not designated for publication), rev'd, 555 S.W.3d 562 (Tex. Crim. App. 2018) ("Niles I"). However, we agreed with appellant and the State that there was error in the judgment. Id. We reformed both judgments to reflect appellant was convicted of a Class B misdemeanor and, as reformed, affirmed the convictions. Id. Further, because the sentences assessed were outside the range of punishment for a Class B misdemeanor, we reversed and remanded for a new sentencing hearing in each case. Id.

         In response to a petition for review filed by the State Prosecuting Attorney, the Texas Court of Criminal Appeals granted petition for review on its own motion. The Court explained this is a case of charge error in that an element of the offense was omitted from the jury charge, even though the element had been pleaded in the charging instrument and tried before the jury. Niles v. State, 555 S.W.3d 562, 573 (Tex. Crim. App. 2018) ("Niles II"); see Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). Because such error is subject to a harm analysis, we erred to reform the judgments without first analyzing whether the jury charge error resulted in harm. Niles, 555 S.W.3d at 573. The Court reversed and remanded with instructions for this court to conduct a harm analysis under the legal standard articulated in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Id.[2]

         Harm Analysis

         When the defendant fails to object, as in this case, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza, 686 S.W.2d at 171). Egregious harm deprives appellant of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. Egregious harm occurs when the error "affects 'the very basis of the case,' deprives the defendant of a 'valuable right,' or 'vitally affect[s] a defensive theory.'" Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) and Almanza, 686 S.W.2d at 172). Egregious harm is a difficult standard to prove, and such a determination must be done on a case-by-case basis. Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 171). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. The record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error. Ngo, 175 S.W.3d at 750. In the egregious-harm analysis, we consider (1) the charge itself; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the trial record as a whole. See Hutch, 922 S.W.2d at 171.

         The Jury Charge

         The jury charge wholly fails to include any instruction on the public servant element of the offense as a Class A misdemeanor. Moreover, the jury found appellant "guilty" rather than "guilty as alleged in the indictment." Thus, the jury charge weighs in favor of concluding appellant has suffered egregious harm.

         The State of the Evidence

         This factor requires a determination of whether the jury-charge error related to a contested issue. Hutch, 922 S.W.2d at 173. It did not. The evidence that the complainants were public servants was strong, undisputed, and uncontradicted. See Niles, 2016 WL 7108248, at *1-6. As in Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1986), "the record suggests the issue seems to have been taken as 'given' at trial." Because the issue did not "go to the very basis of the case" or "vitally affect a defensive theory," this factor weighs against a finding of egregious harm. Kuhn v. State, 393 S.W.3d 519, 528 (Tex. App.-Austin 2013, pet. ref'd) (citing Kucha, 686 S.W.2d at 156); see also Harkins v. State, 268 S.W.3d 740, 744 (Tex. App.-Fort Worth 2008, pet. ref'd); Grider v. State, 139 S.W.3d 37, 41 (Tex. App.-Texarkana 2004, no pet.) (quoting Almanza, 686 S.W.2d at 172; Collins v. State, 2 S.W.3d 432, 436 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd).

         Counsel's ...


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