Appeal from County Criminal Court at Law No. 14 Harris
County, Texas Trial Court Cause No. 2018917 & 2018918
consist of Justices Wise, Spain and Poissant.
OPINION ON REMAND
MARGARET "MEG" POISSANT JUSTICE
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.
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. Therefore, it was error for the
trial court to enter judgments convicting him of Class A
misdemeanors and to sentence him accordingly.
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.
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).
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.
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.
State of the Evidence
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).