Niles v. State, 14-15-00498-CR

• Court: Court of Appeals of Texas
• Citation: 595 S.W.3d 709
• Docket Number: NO. 14-15-00499-CR,NO. 14-15-00498-CR,14-15-00498-CR
• Parties: Scott NILES, Appellant v. The STATE of Texas, Appellee
• Decision Date: 16 July 2019

595 S.W.3d 709

Scott NILES, Appellant
v.
The STATE of Texas, Appellee

NO. 14-15-00498-CR
NO. 14-15-00499-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion on Remand filed July 16, 2019
Rehearing En Banc Denied April 2, 2020

Jonathan Landers, Houston, for Appellant.

Eric Kugler, John Messinger, Kim K. Ogg, Houston, for Appellee.

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

595 S.W.3d 711

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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

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