            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                              NOS. PD-0234-17 & PD-0235-17

                                 SCOTT NILES, Appellant

                                              v.

                                  THE STATE OF TEXAS

                    ON PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTEENTH COURT OF APPEALS
                                HARRIS COUNTY

       Y EARY, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       Under Section 22.07(a)(2) of the Texas Penal Code, “[a] person commits an offense

if he threatens to commit any offense involving violence to any person or property with intent

to . . . place any person in fear of imminent serious bodily injury[.]” T EX. P ENAL C ODE §

22.07(a)(2). This offense is a Class B misdemeanor. T EX. P ENAL C ODE § 22.07(c). However,

the offense becomes a Class A misdemeanor if it “is committed against a public servant.”

T EX. P ENAL C ODE § 22.07(c)(2). Although the charging instruments in these two cases

alleged that the persons whom Appellant threatened were public servants, the jury charges
                                                                                    NILES — 2


made no mention whatsoever of that particular element, much less did they authorize the jury

to make a finding in that respect. Indeed, the jury charges perfectly presented the jury with

the Class B misdemeanor offenses. The jury’s verdict in each of these cases reflected: “We,

the Jury, find the defendant ‘Guilty.’” The jury did not specifically find Appellant to be guilty

of the offenses as alleged in the charging instruments. By all appearances, Appellant was thus

found guilty of the Class B—not the Class A—misdemeanor offenses.

       Under these circumstances, it is not at all surprising that Appellant should argue on

direct appeal that, because he was only convicted of the Class B misdemeanor, the one-year

sentence imposed in the trial court’s written judgment was illegal. After all, a trial court is

required to enter judgment “immediately” upon receiving a verdict of conviction, T EX. C ODE

C RIM. P ROC. art. 37.12, and the jury’s verdicts found Appellant guilty only of—indeed,

could have found him guilty only of—the Class B misdemeanor offenses. The Harris County

District Attorney’s Office conceded this error in its reply brief on direct appeal,1 and the

court of appeals reformed the judgment accordingly, and remanded the cause to the trial court

for re-assessment of punishment within the Class B misdemeanor range.2

       In a motion for rehearing in the court of appeals, the State Prosecuting Attorney [SPA]

intervened for the first time to argue that the court of appeals mis-characterized the error on


       1
           State’s Brief on Direct Appeal at 27.
       2
      Niles v. State, Nos. 14-15-00498-CR & 14-15-00499-CR, 2016 WL 7108248, at *10-11 (Tex.
App.—Houston [14th Dist.] Dec. 6, 2016) (mem. op., not designated for publication).
                                                                                   NILES — 3


original submission. According to the SPA, the true nature of the error in the case was not

an illegal sentence; it was a defect in the jury charge. The charge was defective in that it

omitted an essential element of the Class A misdemeanor, the “public servant” element.

Moreover, the SPA asserted, the error in the case—as so reformulated—was subject to an

analysis for harm, under settled federal constitutional precedents of the United States

Supreme Court, and of this Court;3 and it was harmless, to boot. When the court of appeals

denied the motion for rehearing sans comment, the SPA renewed the claim in a petition for

discretionary review in this Court. We refashioned the SPA’s ground for review somewhat,

but essentially granted discretionary review to examine the SPA’s contention.

       Now the Court accepts the SPA’s argument that the issue in this case is one of jury

charge error, and it remands the cause to the court of appeals “for proceedings consistent

with” its opinion—presumably to conduct a harm analysis of the federal constitutional error

in the jury charge. I dissent to this reformulation of Appellant’s appellate complaint on

several grounds. First, I believe the federal cases upon which the SPA depends are materially

distinguishable from this case. Second, the State did not preserve any objection to the jury

charge—and it should be the State’s obligation to object on the facts presented here, not

Appellant’s. And finally, even if it is appropriate to convert Appellant’s point of error on

appeal into a jury charge issue rather than an illegal sentence issue, Appellant should be


       3
         Neder v. United States, 527 U.S. 1 (1999); Washington v. Recuenco, 548 U.S. 212 (2006);
Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006).
                                                                                    NILES — 4


given the latitude on remand to argue that the error was structural as a matter of state, if not

federal, constitutional law. I will develop each of these arguments in turn.

                                               I.

       In Neder v. United States, 527 U.S. 1 (1999), the appellant was convicted of several

federal fraud offenses even though the jury charge did not require the jury to determine

materiality, a necessary element of those offenses. Instead, the trial judge in Neder had taken

it upon himself to supply the necessary findings on that element, and so the issue devolved

into a question of whether an improper entity made that elemental finding necessary to

conviction, in violation of the appellant’s Sixth Amendment right to a jury trial. Id. at 6. The

United States Supreme Court acknowledged that the appellant’s constitutional right had been

violated, but it held that such a violation did not amount to “structural” error, and was

therefore subject to the federal harmless error rule. Id. at 8. On the facts of Neder itself, the

Supreme Court found the error harmless. Id. at 17.

       Washington v. Recuenco, 548 U.S. 212 (2006), involved a similar situation in which

a trial judge commandeered a fact-finding function that the Sixth Amendment properly

assigns to the jury—namely, whether the appellant used a “firearm” in the commission of his

offense, which, if true, would mandate a three-year enhancement of the sentence. Relying

upon Neder, the Supreme Court declared this Apprendi violation to be subject to the federal
                                                                                           NILES — 5


harmless error rule as well.4 Id. at 220. But again, in Recuenco, at least the trial judge had

made the “firearm” finding, even if the jury did not. Id. at 215.

        Here, there has simply been no finding—by any fact-finding entity—of the element

that would justify raising the level of Appellant’s terroristic threat offense to a Class A

misdemeanor.5 This is not a question of whether the correct entity made the requisite finding.

It is a question of whether Appellant may be sentenced beyond the range of punishment

justified by the only fact-findings that have been made—by any entity, properly or not.6 In

short, Appellant appropriately presented his point of error on appeal in the form of an illegal

sentence claim. Such a claim may be raised for the first time on appeal.7 We have no

occasion to reformulate Appellant’s point of error for him.


        4
         See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that, “other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury”).
       5
         The Court notes that, in response to Appellant’s motion for new trial, “the trial judge said of
the ‘public servant’ element, ‘The Houston Department firefighter, they got that.’” Majority Opinion
at 8-9. Even assuming this vague comment could count as a finding of fact in support of the written
judgment reflecting a conviction for the Class A misdemeanor, it would have come too late.
        6
          Perhaps it could be argued that, by entering the written judgment reflecting a conviction for
the Class A misdemeanor, the trial court made an implied finding with respect to the “public servant”
element of that greater offense. But it makes no sense to me to recognize such an implied finding when
both Neder and Recuenco stand for the proposition that such a finding would be constitutionally
prohibited (even if not “structural” error) unless the accused had waived his constitutional right to jury
trial. The Appellant did not waive his right to jury trial here. It would be inappropriate to imply a
finding of fact that the trial court was not authorized to make.
        7
         See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A trial or appellate court
which otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal
sentence.”).
                                                                                           NILES — 6


                                                   II.

        Even assuming, for the sake of argument, that it is somehow acceptable to transform

Appellant’s claim into something it was not, it is unclear to me that the State is in any

position to urge that transformation now. The State made no objection to the lack of the

elevating element in the jury charge. The Appellant cannot reasonably have been expected

to level such an objection—for all he knew, the State’s failure to object manifested a

deliberate abandonment of the greater offense.8 As the Court observes, during his closing

argument, the prosecutor did not even mention the necessity of finding the “public servant”

element. Majority Opinion at 9. That the State later conceded that Appellant was punished

beyond the statutorily authorized range is consistent with the inference of abandonment.

        To illustrate the anomaly of allowing the State at this late date to unilaterally alter the

character of Appellant’s point of error on appeal, consider the following thought experiment:

Suppose that, following the jury’s verdict in this case, the trial court took note of the fact that

the charge it gave to the jury failed to authorize a finding on the “public servant” element,

but that the verdict otherwise wholly supported a conviction for the Class B misdemeanor

offense. Suppose that, in accordance with Article 37.12, the trial court therefore entered a


       8
          See T EX. C ODE C RIM. P ROC. art. 37.08 (“In a prosecution for an offense with lesser included
offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser
included offense.”). “In fact, the State can abandon an element of the charged offense without prior
notice and proceed to prosecute a lesser-included offense.” Grey v. State, 298 S.W.3d 644, 650 (Tex.
Crim. App. 2009). What would Appellant’s objection have been at this point? “Your Honor, I object
to the prosecutor apparently exercising his unfettered discretion to abandon the greater offense!”
                                                                                        NILES — 7


judgment of guilt for that lesser offense. Suppose further that, unhappy with some perceived

trial error in the case, Appellant appealed the conviction, and that the State, pursuant to

Article 44.01(c) of the Code of Criminal Procedure, then filed a cross-appeal.9 Suppose that,

in that cross-appeal, the State argued that the trial court erred to enter judgment for the lesser,

Class B misdemeanor offense. An appellate court would be justified, under this scenario, to

reject the State’s argument on the ground of procedural default—that the State failed to

object to the jury charge.10 In that case, the State’s attempt to convert the appellant’s

conviction for the lesser offense into something greater would surely fail.

       It seems anomalous to me, then, that we should allow the State to convert Appellant’s

true point of error on appeal into a claim of jury charge error that the State did nothing within

its power at trial to prevent. It is the classic straw man—the State takes an argument it should

lose and (belatedly) transforms it into an argument it thinks it can win. I would not tolerate

such a transformation, at least in the absence of a trial objection from the State that the jury

charge was inadequate to justify a conviction for the greater offense it sought. And I would

therefore affirm the judgment of the court of appeals.


       9
         See T EX. C ODE C RIM. P ROC. art. 44.01(c) (“The state is entitled to appeal a ruling on a
question of law if the defendant is convicted in the case and appeals the judgment.”).
       10
          I presume that the Almanza standard, allowing for the review of unobjected-to jury charge
errors, would not operate to benefit the State in this scenario. See Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985) (on State’s mot. for reh’g) (when the defendant objects to jury charge
error, he must only demonstrate “some” harm to obtain a reversal; when he does not object, he must
demonstrate “egregious” harm). 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 — 8


                                                   III.

        But now that the Court has (belatedly) accepted the SPA’s invitation to reformulate

the issue, the Appellant should at least be permitted to argue, on remand, that the jury charge

did not simply violate the federal constitution—it violated the Texas Constitution as well.11

Indeed, he should even be allowed to claim, in supplemental briefing, that this charge error

should not be regarded as subject to a harmless error analysis at all, under principles of our

own constitution. Unlike the Sixth Amendment, Article I, Section 15, of the Texas

Constitution proclaims that “[t]he right of trial by jury shall remain inviolate.” 12 There is

ample room for argument that the failure of the jury to render a verdict that passed on every

element necessary to constitute the offense that is reflected in the judgment is “structural”

error for state constitutional purposes, and not subject to a harm analysis at all.13 Moreover,


       11
          It is true that Appellant has made no such argument up to this point. But that is because he
has consistently taken the position that the court of appeals was correct to take his point of error at face
value—as a challenge to the legality of the sentence. We cannot fairly expect him to abandon that
claim and contest the SPA’s suggested resolution of the issue as reformulated unless and until he has
to—i.e., after this Court’s opinion today remanding the case to the court of appeals.
        12
           Compare U.S. C ONST. amend. VI (“[T]he accused shall enjoy the right to . . . trial, by an
impartial jury[.]”), with T EX. C ONST. art. 1, § 15 (“The right of trial by jury shall remain inviolate.”).
We have said before that there is no difference in scope between the Sixth Amendment’s right to a jury
trial and that of Article I, Section 10, of the Texas Constitution. Jones v. State, 982 S.W.2d 386, 391
(Tex. Crim. App. 1998). The Jones opinion, however, took no account of Article I, Section 15.
        13
          See Lake v. State, 532 S.W.3d 408, 419 (Tex. Crim. App. 2017) (Yeary, J., concurring) (“I
am not inclined to straightjacket our construction of [the harmless error rule] as the plurality continues
to do today, in derogation of this Court’s authority to, for example, declare certain state constitutional
violations to be immune to harm analysis[.]”); Neder, 527 U.S. at 34, 38 (Scalia, J., dissenting) (“The
underlying theme of the Court’s opinion is that taking the element of materiality from the jury did not
render Neder’s trial unfair, because the judge certainly reached the ‘right’ result. But the same could
                                                                                              NILES — 9


the right to a jury trial is a “waiver-only” right,14 and Appellant did nothing to waive his right

to have the jury pass on every element necessary to constitute the offense reflected in the

judgment. The court of appeals may well conclude that Appellant’s state constitutional right

to a jury trial was denied him; that this error was not subject to a harm analysis; and that he

is entitled to an entirely new trial, not just a new punishment proceeding.

        But this assumes that the Court is correct to reformulate the issue at all. Because I

would simply affirm the court of appeals’ judgment, I respectfully dissent.




FILED:                   June 13, 2018
PUBLISH




be said of a directed verdict against the defendant—which would be per se reversible error no matter
how overwhelming the unfavorable evidence. The very premise of structural-error review is that even
convictions reflecting the ‘right’ result are reversed for the sake of protecting a basic right. * * *
Harmless-error review applies only when the jury actually renders a verdict—that is, when it has
found the defendant guilty of all the elements of a crime.”) (internal citation omitted).
        14
          See T EX. C ODE C RIM. P ROC. arts. 1.12-1.14 (providing that the right to a jury trial in criminal
cases “shall remain inviolate[,]” while providing express mechanisms which must be followed before
it may be concluded that the right has been waived); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim.
App. 1993) (failure of the trial court to implement waivable rights “is an error which might be urged
on appeal whether or not it was first urged in the trial court”).
