Freeman v. State

• Decision Date: 09 May 2017
• Docket Number: NO. 03-16-00130-CR,03-16-00130-CR
• Citation: 525 S.W.3d 755
• Parties: Matthew FREEMAN, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

525 S.W.3d 755

Matthew FREEMAN, Appellant

v.The STATE of Texas, Appellee

NO. 03-16-00130-CR

Court of Appeals of Texas, Austin.

Filed: May 9, 2017

Discretionary Review Refused September 27, 2017

Mr. Nathan H. Butler, Attorney at Law, 180 Stoneham, San Angelo, TX 76905, for Appellant.

Ms. Dana Bell Nolen, Dana Nolen Attorney at Law, 1226 Paseo de Vaca, San Angelo, TX 76901, Mr. John R. Messinger, Assistant State Prosecuting Attorney, P. O. Box 13046, Austin, TX 78711-3046, Ms. Meagan White, Tom Green County Courthouse Annex, 124 W. Beauregard, Suite B, San Angelo, TX 76903, for Appellee.

Before Chief Justice Rose, Justices Field and Bourland

OPINION

Scott K. Field, Justice

We 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.

Appellant 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 proceedings.

"The 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ); see Sullivan v. Louisiana , 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (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, 90 S.Ct. 1068 (quoting Leland v. Oregon , 343 U.S. 790, 803, 72 S.Ct. 1002, 96 L.Ed. 1302 (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, 90 S.Ct. 1068 (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 writ) (same).

In 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 incorrect standard.¹

In its 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, 111 S.Ct. 1246, 113 L.Ed.2d 302 (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.

The United States Supreme Court has held that "a constitutionally deficient reasonable-doubt [jury] instruction" is structural error. Sullivan , 508 U.S. at 276, 113 S.Ct. 2078. 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, 113 S.Ct. 2078 (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).

By 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...