Sanchez v. State
| Decision Date | 13 December 2006 |
| Docket Number | No. PD-1754-05.,PD-1754-05. |
| Citation | 209 S.W.3d 117 |
| Parties | Arthur Garcia SANCHEZ, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Stephanie L. Stevens, San Antonio, for appellant.
Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, Matthew Paul, State's Attorney, Austin, for State.
This cause is before us for a third time. The appellant was convicted for the offense of official oppression, a Class A misdemeanor,1 and sentenced to one year in jail, probated, and a $3,000 fine. On direct appeal, the Fourth Court of Appeals reversed the conviction and dismissed the prosecution, holding that the statute was unconstitutionally vague on its face and as applied, in violation of the Due Process Clause of the Fourteenth Amendment, and also overbroad, in violation of the First Amendment.2 We granted discretionary review, held that the statute was neither unconstitutionally vague on its face and as applied nor unconstitutionally overbroad. We reversed the judgment of the court of appeals, and remanded the cause for the court of appeals to address the appellant's further contentions.3
On remand, the court of appeals once again reversed the conviction, this time remanding the cause for a new trial.4 We granted discretionary reviewed a second time, and vacated the judgment of the court of appeals, remanding the cause to that court for reconsideration of its harm analysis.5 On second remand, the court of appeals reconsidered the harm issue, found the error to be harmful a second time, and reversed the conviction again.6 In the alternative, the court of appeals reversed the conviction on the basis of two other, unassigned errors it perceived in the jury charge.7 We granted the State's petition for discretionary review for a third time, on three grounds. First, we granted review of the question whether the court of appeals properly conducted the harm analysis on remand. Second and third, we granted review of the question whether the court of appeals correctly held that the errors it perceived in the jury charge were reversible. On our own motion we granted review of a fourth issue regarding whether the court of appeals was authorized to reverse the conviction on the basis of unassigned error.8 Should we find that the court of appeals properly reversed the appellant's conviction on any one of the three bases upon which it held that a reversal was warranted, then we need not reach the other two substantive issues.
We hold that the court of appeals was authorized to reach the unassigned jury-charge issues in this cause and that it properly reversed the conviction based upon the first unassigned error it identified. Accordingly, we will overrule the State's second ground for review, and dismiss the State's first and third grounds as moot.
The appellant was indicted for official oppression in that, acting as a public servant and under color of his office or employment, he intentionally subjected Diane Gonzalez to sexual harassment.9 "Sexual harassment" is defined to mean "unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly."10 On his initial appeal, the appellant argued that this definition rendered the statute unconstitutionally vague, both on its face and as applied to the facts of his case. The court of appeals agreed, and reversed the conviction and ordered a judgment of acquittal.11
We reversed this judgment.12 In the course of rejecting the appellant's contention that the statute is unconstitutional, we resolved an ambiguity in the scope of the requirement that the sexual conduct be "unwelcome."13 We recognized that on the face of the statute it was unclear whether the elemental requirement of "unwelcome" was meant to modify only "sexual advances," or was also meant to modify "requests for sexual favors, or other verbal or physical conduct of a sexual nature[.]" We construed the statute to mean the latter. We also held that the culpable mental state of "knowing" applied to the element that the sexual conduct be unwelcome;14 in other words, we construed the statute to require a showing that the appellant was aware that the alleged sexual conduct to which he was subjecting his victim was unwelcome.15
On remand, the court of appeals again reversed the conviction, this time remanding for a new trial.16 The court of appeals held, inter alia, that the indictment was substantively defective for failing to allege the elements that this Court had construed to be contained in the statute.17 Among the missing elements are two that are relevant here. First, the indictment failed to expressly allege that all of the alleged statutory variants of sexual conduct (not just "sexual advances") were unwelcome. Second, it failed to allege that the appellant knew that any of the instances of alleged sexual conduct were unwelcome. However, in a second petition for discretionary review, we once again reversed the court of appeals' reversal.18 We sustained the State's contention that the appellant had failed to preserve his argument that the indictment was substantively defective, and held that the court of appeals therefore erred to reach the merits of that claim.19 We vacated the court of appeals' judgment and again remanded the cause for the court of appeals, this time for that court to reconsider its harm analysis with respect to a second ground for reversal that it had identified in Sanchez III.20
On second remand, the court of appeals reversed the conviction for a third time.21 The court of appeals identified three independent bases which it believed entitled the appellant to a new trial. Two of those bases were not raised in the appellant's brief, but the court of appeals reached them as unassigned error.22 The first unassigned error the court of appeals identified was a failure of the jury charge to require the jury to find, as a prerequisite to convicting the appellant, that he committed each and every element of sexual harassment as required by our construction of the statute in Sanchez II.23 Among the elements the court of appeals found lacking in the jury charge were the same two we have already alluded to with respect to the indictment. First, the jury charge failed to unambiguously require the jury to find that some of the alleged statutory variants of sexual conduct that it might rely upon to convict were unwelcome.24 Instead, like the face of the statute itself, the jury charge only expressly required the jury to find that any "sexual advances" were unwelcome, and did not unambiguously require it to find that any "requests for sexual favors, or other verbal or physical conduct of a sexual nature" upon which it might rely to convict were likewise unwelcome. Second, it failed to require the jury to find that the appellant knew that any of the instances of alleged sexual conduct were unwelcome.25 The court of appeals concluded that these omissions in the jury charge caused the appellant egregious harm, and therefore reversed the conviction under Almanza v. State.26
Shortly after the courts of appeals acquired criminal appellate jurisdiction in Texas, it was established in Carter v. State27 that those courts, like this Court when we are acting in our direct-appeals capacity, are authorized under the Texas Constitution to reach unassigned error. We recently "reaffirmed" that "appellate courts are free to review `unassigned error'—a claim that was preserved in the trial below but was not raised on appeal."28 But errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court.29
At issue in this case is jury-charge error—the failure to give "a written charge distinctly setting forth the law applicable to the case[.]"30 Under our construction of Article 36.19 of the Code of Criminal Procedure in Almanza v. State, such a jury-charge error is regarded as "fundamental"—that is to say, it may subject the conviction to reversal on appeal regardless of whether the appellant raised an objection to it in the trial court—if that error caused the appellant "egregious harm."31 The court of appeals did not err to reach this question as unassigned fundamental error on appeal.32 Of course, absent a trial objection, the court of appeals was not free to reverse the conviction on the basis of jury-charge error absent a finding of the requisite egregious harm.33 We turn next to that question.
As the court of appeals recognized, jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.34 In examining the record to determine whether jury-charge error is egregious, the reviewing court should consider the entirety of the jury charge itself, the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole.35 In this case, the court of appeals did not examine the state of the record with respect to the two errors we address today, holding instead that it was sufficient to establish egregious harm that the jury charge authorized the jury to convict without finding every requisite element of the offense beyond a reasonable doubt.36 Our own review of the record confirms that, considering also the conflicts in the evidence and the arguments that counsel made, the error was egregious.
The jury charge abstractly defined sexual...
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...mental state “is nevertheless required unless the definition plainly dispenses with any mental element”); Sanchez v. State, 209 S.W.3d 117, 122 n. 38 (Tex.Crim.App.2006) (“The failure to instruct the jury to find every necessary culpable mental state constitutes jury-charge error.”); Cook v......
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...basis of a case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. (citing Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006)). In examining the record for egregious harm, we must consider the entire jury charge, the state of the evidence, the cl......
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...basis of a case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. (citing Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006)). In examining the record for egregious harm, we must consider the entire jury charge, the state of the evidence, the cl......
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