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

• Court: Court of Appeals of Texas
• Citation: 629 S.W.3d 303 (Mem)
• 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: 02 April 2020

629 S.W.3d 303 (Mem)

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.).

Fled April 2, 2020

Jonathan Landers, for Appellant.

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

Before the court en banc.

Reconsideration en banc denied.

En Banc Panel consists of Chief Justice Frost and Justices Christopher, Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, and Poissant. ( Bourliot, J., dissenting, joined by Zimmerer, J., Spain, J., Hassan, J.; Spain, J., dissenting).

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

Charles A. Spain, Justice, dissenting.

I join the dissenting opinion from the denial of en banc reconsideration. I write separately to note that no motions for rehearing were filed in these appeals. Were they to have been filed, I would have voted to grant rehearing.

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

Frances Bourliot, Justice, dissenting.

I respectfully dissent from the Court's denial of en banc reconsideration. The panel opinion misconstrues the Court of Criminal Appeals' opinion remanding the case and analyzes harm through the wrong framework.

Niles was charged by information with two counts of Class A misdemeanor terroristic threat to a public servant. But the jury charges set forth the elements for Class B misdemeanor terroristic threat and wholly failed to include any language about whether the complainant was a public servant. The State also failed to discuss the "public servant" element during closing

629 S.W.3d 304

arguments. Based on the jury charge given, the jury found Niles guilty of two counts of the Class B terroristic threat offense. The judgment, however, reflected convictions for Class A offenses, and the judge sentenced Niles to the maximum allowable sentence for a Class A misdemeanor, which is double the maximum allowable sentence for a Class B misdemeanor for which the jury found him guilty.

On direct appeal, the State conceded that the sentence was illegal. This court reformed the judgment to reflect a Class B conviction and reversed and remanded for a new punishment consistent with the jury's verdict. Niles v. State , No. 14-15-00498-CR, 2016 WL 7108248, at *11 (Tex. App.—Houston [14th Dist.] Dec. 6, 2016) (mem. op., not designated for publication) (" Niles I "), rev'd , 555 S.W.3d 562 (Tex. Crim. App. 2018). The State Prosecuting Attorney independently petitioned the Court of Criminal Appeals, arguing for the first time that Niles's illegal sentence claims should be reviewed for harmless error. The high court ultimately granted review on its own motion to decide whether we had erred in reforming the judgments to Class B misdemeanors. Finding that Niles's Sixth Amendment right to a jury trial was violated, the court remanded the case to this court to conduct a harm analysis consistent with its opinion. Niles v. State , 555 S.W.3d 562, 573 (Tex. Crim. App. 2018).

In this court's opinion on remand, the panel incorrectly states that "[the Court of Criminal Appeals] 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)." Niles v. State , No. 14-15-00498-CR, 595 S.W.3d 709, ––––, 2019 WL 3121781, at *1 (Tex. App.—Houston [14th Dist.] July 16, 2019, no pet. h.) (op. on remand). In actuality, Almanza is cited in the high court's opinion exactly once – in a footnote to the dissent noting that " Almanza construed Article 36.19 of the Code of Criminal Procedure, which speaks to claims of jury charge error when raised by the defendant, not by the State." Niles , 555 S.W.3d at 576 n.10 (Yeary, J., dissenting). Instead, the court's majority opinion discusses Neder , Apprendi , and its progeny and remanded the case with instructions for this court to conduct a harm analysis consistent with its opinion. Id. at 573.

In examining the rationale and the caselaw surrounding Almanza , it is evident that Almanza should not apply in this situation. Almanza 's analysis is based on Article 36.19 of the Texas Code of Criminal Procedure, and its harm analysis exists to analyze those times when the defendant's rights were harmed by the jury charge. By contrast, the missing "public servant" element here is the State's issue, as it was the State's burden to prove that element beyond a reasonable doubt. See Williams v. State , 273 S.W.3d 200, 222 (Tex. Crim. App. 2008). Because it was the State's issue, it logically follows that the State had the burden to ensure that the jury charge correctly reflected the conviction that the State was seeking. Thus, the defendant had no duty to object and reasonably could have believed the State had abandoned that aggravating element of the offense, as the State can do at any point. In fact, the State abandoned this element twice – first by not objecting to the jury charge at trial and second by conceding this point on its initial appearance in front of this court.

This court's holding creates an unsustainable absurdity. If defense counsel had objected to the omission of the "public servant" element in the jury charge, requesting that his client face a higher offense level than the one the State had

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agreed to, we would likely be faced with a potentially sustainable ineffective assistance of counsel claim. What possible strategic reason would an attorney have for urging a charge with a higher punishment range than the one that the State desires?

I firmly believe that Niles I , which remanded the case for a new punishment hearing for the Class B offenses, was correct. First, the State abandoned the "public...