Affirmed and Opinion on Remand filed July 16, 2019.




                                        In The

                     Fourteenth Court of Appeals

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

                             SCOTT NILES, Appellant
                                          V.

                        THE STATE OF TEXAS, Appellee

            On Appeal from County Criminal Court at Law No. 14
                           Harris County, Texas
                 Trial Court Cause No. 2018917 & 2018918

                             OPINION ON REMAND

      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 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


       1
         A terroristic threat is elevated from a Class B misdemeanor to a Class A misdemeanor if
it is committed against a public servant. Tex. Penal Code §§ 22.07(a), 22.07(c)(2). As a Class B
misdemeanor, the offenses were only punishable by up to 180 days in jail.

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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). 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


        2
            Appellant’s supplemental brief on remand contends for the first time that the judgments and
sentences in each case violate his right to a trial by jury under TEX. CONST. art. I, § 15. Appellant has also
filed a letter to bring to our attention a recent decision by the United States Supreme Court, United States
v. Haymond, 139 S. Ct. 2369 (2019), in support of his position. The Texas Court of Criminal Appeals
expressly held that the failure to include the public-servant element in the charging instruments in these
cases is “jury charge error subject to a harm analysis.” Niles II, 555 S.W.3d at 564. To any extent Haymond
can be read to suggest that a harmless error analysis is not appropriate, the Niles II court based its decision
upon an analysis of Apprendi and Alleyne v. United States, 570 U.S. 99 (2013), which are also examined in
Haymond. The Court noted that “[b]oth parties on direct appeal recognized Apprendi error—that is jury
charge error” and expressly rejected appellant’s position that it was “reformulating” his issue. 555 S.W.3d
at 569. We accordingly limit our opinion on remand to the question of whether the charge error was harmful
to appellant.


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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.

                                   The Jury Charge

      The 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.

                               The State of the Evidence

      This 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


                                            4
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).

                                Counsel’s Arguments

      The question of whether or not the complainants were public servants was not
argued to the jury by either appellant or the State. The defense moved for an
instructed verdict on the basis of insufficient evidence that appellant intended to
place Chief Haygood in fear of imminent serious bodily injury. During that
discussion, the trial court made the following observations:

            THE COURT: I see here it says -- let’s just go through the
      elements. April 29th, they’ve proved that. The aggravated assault on a
      public servant, they got that. Namely, Andrew Haygood, they got that.
      The Houston Department firefighter, they got that. Hereafter styled the
      complainant, okay, with the intent to place the complainant in fear of
      imminent serious bodily injury.
             ....
             THE COURT: I think you are right if you don’t plead it that way.
      But, in this case, for whatever reason, you did. You pled it very
      specifically, that he would have to threaten aggravated assault on a
      public servant, namely, Andrew Haygood. Not with the intent to place
      another in fear of imminent serious bodily injury.
      At no time during the discussion on defense’s motion for an instructed verdict
was any suggestion made that the State failed to prove the complainants were public
servants. This factor therefore weighs against finding egregious harm.

                             Other Relevant Information

      The record reflects that during voir dire, the panel was informed by the State
that it was alleged in each case that appellant “did then and there unlawfully threaten
to commit an offense involving violence, namely, aggravated assault, upon a public
servant.” Further, the State told the panel, “I have to prove that he threatened it
against our complainants who are public servants, and they are firefighters with the
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Houston Fire Department.” The State again told the venire:

             I have to prove that the threat was against our complainants who
      are public servants. Now public servants can be firefighters, police
      officers, judges, etc. And you’ve already heard in this case our
      complainants are Houston Fire Department firefighters. So I have to
      prove that they’re firefighters.
      Also, the indictment in each case was read to the jury. They both state that
appellant “did then and there unlawfully threaten to commit an offense involving
violence, namely, aggravated assault, upon a public servant.”

      During trial, the following exchange occurred:

      [The State] Now is Captain Andrew Haygood a Houston Fire
      Department firefighter?
      A. Yes, ma’am.
      [The State] He’s a public servant?
      A. Yes, ma’am.
      [The State] Same thing with Mark Keelen, is he a Houston
      Fire Department firefighter?
      A. Yes, ma’am.
      [The State] Is he a public servant?
      A. Yes, ma’am.
      There is nothing in the record that would support a finding that the
complainants were not public servants. Accordingly, this factor also weighs against
finding egregious harm.

                                     CONCLUSION

      The record clearly establishes the complainants were public servants.
Accordingly, we cannot conclude appellant was egregiously harmed by the charge



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error. We therefore overrule appellant’s third issue. In each case, the trial court’s
judgment is affirmed.




                                             /s/      Margaret “Meg” Poissant
                                                      Justice


Panel consist of Justices Wise, Spain and Poissant.
Publish — Tex. R. App. P. 47.2(b).




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