                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-18-00273-CR

DANIEL BENITO GUAJARDO,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2017-1908-C2


                         CONCURRING OPINION


       At the outset, I recognize that the lead opinion correctly concluded that the

evidence in this case does not support the enhancement allegation. The question then is

what should be done about it. Simply because Guajardo complains that the evidence is

“insufficient” should not, per se, obviate a harm analysis.           With respect to the

enhancement allegation, we are addressing a punishment issue that impacts the

sentencing range, not guilt/innocence. In a similar vein, in her dissent in Jordan, Presiding
Judge Keller compared this situation to relief afforded when the evidence is insufficient

to support a deadly-weapon finding. See Jordan v. State, 256 S.W.3d 286, 294 (Keller, P.J.,

dissenting). In that instance, we simply delete the deadly-weapon finding. See id. Or, in

other words, “[a] conclusion on appeal that the evidence is legally insufficient to support

a particular verdict or finding serves to remove that verdict or finding from the case.

Period.”    Id.     Therefore, because the evidence in the record failed to support the

enhancement allegation, the enhancement should have never been submitted to the jury.

Accordingly, the lower end of the punishment range would have been fifteen years,

rather than twenty-five years. Like Presiding Judge Keller, I would conclude that

Guajardo’s request for relief is really jury-charge error that flows from the evidentiary

insufficiency. See id. at 294.

        However, regardless of whether one agrees with the preceding conclusion, the

next step involves whether or not a harm analysis should be conducted. I recognize that,

under similar circumstances, a majority on the Court of Criminal Appeals concluded that

the “court of appeals was correct in refusing to conduct a harm analysis in this case” and

reversed the trial court’s judgment and remanded for a new punishment hearing. See id.

at 292-93. The facts in this case are identical to those in Jordan and, thus, provide a second

opportunity to review Jordan in light of the law on structural error and more recent

decisions from the Court of Criminal Appeals. For the reasons articulated below, I




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believe that a complete harm analysis should have been done in Jordan and should be

done in this case.

        A structural error is a “‘defect affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.’” Johnson v. United States,

520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (quoting Arizona v. Fulminante,

499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 302 (1991)); see Mendez v. State, 138 S.W.3d

334, 339 (Tex. Crim. App. 2004). Structural errors “give rise to automatic reversal, with

no harm analysis whatsoever.” Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App.

2005). An appellate court may “not review and analyze a claim of error as structural error

unless the United States Supreme Court has defined the error as structural . . . .” Burks v.

State, 227 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Gray v.

State, 159 S.W.3d 95, 97 (Tex. Crim. App. 2005)). In the following types of cases, the

United States Supreme Court has found structural errors: (1) a total deprivation of the

right to counsel; (2) lack of an impartial trial judge; (3) unlawful exclusion of grand jurors

of a defendant’s race; (4) violation of the right to self-representation; (5) violation of the

right to a public trial; (6) Ake error; and (7) an erroneous reasonable-doubt instruction to

the jury. See Mendez, 138 S.W.3d at 340 (citing Johnson, 520 U.S. at 468-69); see also Rey v.

State, 897 S.W.2d 333, 345 (Tex. Crim. App. 1995).

        “All structural errors must be founded on a violation of a federal constitutional

right, but not all violations of federal constitutional rights amount to structural errors.”


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Schmutz v. State, 440 S.W.3d 25, 29 (Tex. Crim. App. 2014). Indeed, “[m]ost constitutional

errors are not ‘structural.’” Mendez, 138 S.W.3d at 340. “For federal constitutional error

that is not structural, the applicable harm analysis requires the appellate court to reverse

unless it determines beyond a reasonable doubt that the error did not contribute to the

defendant’s conviction or punishment.” Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim.

App. 2017) (plurality op.) (citing TEX. R. APP. P. 44.2(a)).

        The situation in the case at bar is not listed among those deemed structural by the

United States Supreme Court. Therefore, the error in this case is not structural and should

be subjected to a harmless-error analysis.1 See Lake, 532 S.W.3d at 411.

        Nevertheless, the Jordan majority relied on prior decisions in Russell v. State, 790

S.W.2d 655 (Tex. Crim. App. 1990) and Jones v. State, 711 S.W.2d 634 (Tex. Crim. App.

1986) to support its conclusion that a harm analysis should not be conducted when the

State failed to meet its burden of showing finality of the enhancement conviction. See 256

S.W.3d at 291. Both of these cases predate the Court’s major pronouncement in Cain v.

State regarding the application of harmless-error analysis to all errors not deemed


        1 It is also noteworthy that the United States Supreme Court has held that the failure to submit an
element of the offense to the jury was not structural error and was thus subject to a constitutional harmless-
error review. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 35 (1999). Neder was charged
with mail fraud, wire fraud, and bank fraud. Id. at 6. At trial, the court failed to include materiality as an
element of the offense in its jury instructions, although it is an element of all three crimes. Id. at 4-6. The
Supreme Court held that this was error, but subject to a Chapman harmless-error analysis. Id. at 4 (citing
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1966)). Surely, if the omission of a
necessary element in the charge during the guilt-innocence phase is subject to harmless-error analysis, the
trial court’s error in submitting the enhancement allegation in this case without sufficient evidence of the
proper sequencing should also warrant harmless-error analysis.


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structural by the United States Supreme Court. 947 S.W.2d 262, 264 (Tex. Crim. App.

1997) (“Except for certain federal constitutional errors labeled by the United States

Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness

of a plea, or any other mandatory requirement, is categorically immune to a harmless

error analysis. Of course, where the error involved defies analysis by harmless error

standards or the data is insufficient to conduct a meaningful analysis, then the error will

not be proven harmless beyond a reasonable doubt . . . . Hence, it may be true that some

kinds of errors (particularly jurisdictional ones) will never be harmless . . . and that some

other kinds of errors will rarely be harmless.         But, appellate courts should not

automatically foreclose application of the harmless error test to certain categories of

errors.”).

        Additionally, the Jordan majority later emphasized that the “absence of discrete,

objective facts decided by a jury in assessing punishment” prevents a reviewing court

from quantifying what impact the unsupported finding had on a jury’s normative

sentencing function. 256 S.W.3d at 293. Thus, “[u]nder these circumstances, the State’s

failure to meet its burden of proof, even if subjected to a harm analysis, can never be

deemed harmless.” Id.

        Arguably, the Jordan majority conducted a harm analysis—albeit an abbreviated

one. See id. Furthermore, just because a particular error might result in a conclusion of

harm in most, if not all, instances should not eliminate the need for a harm analysis


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altogether. Such analysis is important for consistency in the law, especially considering

the analysis in the Jordan majority appears to be inconsistent with the law on structural

error, as well as other decisions from the Court of Criminal Appeals. See Lake, 532 S.W.3d

at 411 (“Even when an error that is not structural under Cain seems to defy proper

analysis or the data seems to be insufficient to assess harm, an appellate court is obligated

to conduct a thorough analysis to determine the extent of harm caused by this error before

reversing the conviction. . . . If, after such analysis, the harm of the error cannot be

assessed, the error will not be proven harmless beyond a reasonable doubt, but appellate

courts should not automatically foreclose application of the harmless error test.” (internal

quotations & footnotes omitted)).

        In her dissent, Presiding Judge Keller emphasized that:

        Even if the jury had been correctly instructed, it would have heard exactly
        the same evidence. The prior convictions would still have been presented
        as “convictions” rather than simple bad acts. The only differences are that
        the jury would have been permitted to assess a lower minimum
        punishment, and the range of punishment would have been expanded by
        ten years. But the jury gave appellant 99 years—the highest term of years
        possible. I could readily conclude that the ten-year difference in the lower
        end of the punishment range might have mattered if the jury had assessed
        25 years or 50 years, or even 75 years. But not 99 years.

Jordan, 256 S.W.3d at 295 (Keller, P.J., dissenting).

        Similarly, in the instant case, Guajardo was sentenced to 99 years—the highest

term of years possible. Furthermore, the prior conviction would still have been presented

to and considered by the jury. And like Presiding Judge Keller, I would have conducted


Guajardo v. State                                                                      Page 6
a harm analysis on this non-structural error and ultimately concluded that the error was

harmless, especially given that Guajardo was sentenced at the very top of the punishment

range.

         However, I am resigned to the fact that Jordan is still binding precedent regarding

this issue, and as an intermediate appellate court, we are required to follow it. See State

v. Delay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (“As an intermediate appellate

court, we lack the authority to overrule an opinion of the court of criminal appeals.”),

aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2006); State v. Stevenson,

993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision of the

court of criminal appeals is binding precedent, we are compelled to comply with its

dictates.”). Further, following Jordan, I believe that the lead opinion appropriately

reversed the trial court’s judgment and remanded for a new trial on punishment. But,

because I believe that the Court of Criminal Appeals should revisit Jordan and, at the very

least, require a complete harm analysis for his non-structural error, I respectfully concur

in the Court’s judgment.




                                                  JOHN E. NEILL
                                                  Justice

Concurring opinion delivered and filed August 5, 2020




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