Dissenting Opinion from Denial of En Banc Reconsideration filed April 2, 2020.




                                       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

           DISSENTING OPINION FROM DENIAL OF EN BANC
                       RECONSIDERATION

      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 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,
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

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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 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
servant” element by not objecting to the jury charge, failing to mention it in closing

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arguments, and conceding error on appeal. Second, in his dissent to Neder, Justice
Scalia highlights the inherent tension in remanding this case for a harm analysis.
      The Court’s decision today is the only instance I know of (or could
      conceive of) in which the remedy for a constitutional violation by a trial
      judge (making the determination of criminal guilt reserved to the jury)
      is a repetition of the same constitutional violation by the appellate court
      (making the determination of criminal guilt reserved to the jury).

Neder v. United States, 527 U.S. 1, 32 (1999) (Scalia, J., dissenting). In performing
a harm analysis, we are impermissibly usurping the role of the jury, becoming the
factfinders, and substituting our judgment for what we believe the jury would have
done if they had been given a different jury charge.
      Still, because the Court of Criminal Appeals directed us to perform a harm
analysis, I turn to the problem we face: determining the harm analysis we should
apply to examine this issue. On remand, the panel picks Almanza, although neither
the Court of Criminal Appeals nor common sense would direct it to do so. The
conundrum lies in the years of Apprendi type cases that provide an ever changing
spectrum of guidance on how to analyze cases in which the jury charge is missing
an element that is also an aggravating factor which affects the allowable punishment
range. The Apprendi line of cases creates some confusion concerning how to analyze
this particular harm. Much of the confusion lies in the shifting focus of the Supreme
Court’s determination of “harmless error” and its disposition of cases in which the
jury does not make a finding on an element or a sentencing factor.
      In Neder v. United States, the United States Supreme Court 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. Id. at 8. Neder was
charged with mail fraud, wire fraud, and bank fraud. Id. at 6. At trial, the court failed
to include materiality, which is an element of all three crimes, as an element of the
offense in its jury instructions. Id. at 4-6. The Supreme Court held that this omission
was error and subject to a Chapman harmless-error analysis – in short, the Court
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decided that the constitutional error of omitting an element from the jury charge is
harmless when it appears beyond a reasonable doubt that the error did not contribute
to the verdict. Id. at 4 (citing Chapman v. California, 386 U.S. 18, 24 (1966)).
      A year after Neder, the Supreme Court decided Apprendi and held that any
fact that increases the penalty beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). Apprendi pleaded guilty to three separate offenses – two
second-degree offenses, with a punishment range of five to ten years, and a third-
degree offense, with a punishment range of three to five years. Id. at 469-70. A
separate statute provided for a second-degree offense to be enhanced to a punishment
range of ten to twenty years if the trial judge finds, by a preponderance of the
evidence, that the defendant committed a hate crime. Id. at 468-69. In discussing the
difficulty of determining the differences between a sentencing factor and an element,
the court makes clear that “the relevant inquiry is one not of form, but of effect –
does the required finding expose the defendant to a greater punishment than that
authorized by the jury’s guilty verdict?” Id. at 494. The Court differentiated between
a “sentencing factor,” describing a circumstance that supports a specific sentence
within the range authorized by the jury’s verdict, and a “sentence enhancement,”
describing an increase beyond the maximum authorized statutory sentence that thus
“fits squarely within the usual definition of an ‘element’ of the offense.” Id. at 494
n.19. The jury found that the State proved the elements of a second-degree offense
beyond a reasonable doubt; the jury did not, however, make any finding on the “hate
crime” element because it was not presented with that element. Id. at 495. Apprendi
was reversed and remanded with no discussion of harmless error.
      In Washington v. Recuenco, the Supreme Court held that the failure to submit
a sentencing factor to the jury was subject to harmless-error analysis under Neder.
Washington v. Recuenco, 548 U.S. 212, 221-22 (2006). Recuenco was found guilty

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by a jury of second-degree assault with a deadly weapon. Id. at 215. The verdict
form asked the jury to make a deadly weapon finding but did not ask the jury to find
that Recuenco had used a firearm. Id. Regardless, the trial court applied the three-
year firearm enhancement to his sentence, rather than the one-year deadly weapon
enhancement. Id. Recuenco effectively merged the Apprendi and Neder lines of
cases, finding that a violation of Recuenco’s constitutional right to a jury
determination on each element is not structural error and thus is subject to a harmless
error analysis.
      Further muddying the waters, Alleyne v. United States seemed to echo back to
Apprendi’s holding, and the Court, without discussing harmless error, vacated
Alleyne’s sentence and remanded his case for resentencing consistent with the jury’s
verdict. 570 U.S. 99, 117-18 (2013). Alleyne had been charged with using or
carrying a firearm in relation to a violent crime which carried a five-year mandatory
minimum sentence, increased to a seven-year minimum if the firearm was
brandished, and a ten-year minimum if the firearm was discharged. Id. at 104. The
jury convicted Alleyne but did not find that he had brandished or discharged the
firearm. Id. The judge found that Alleyne had brandished the weapon and sentenced
him to seven years’ imprisonment. Id. The Court did not discuss Neder or harmless
error. In fact, it declared that “[w]hen a finding of fact alters the legally prescribed
punishment so as to aggravate it, the fact necessarily forms a constituent part of a
new offense and must be submitted to the jury.” Id. at 114-15.
      Recently, the Supreme Court reiterated the rationale from the Apprendi and
Alleyne line of cases in United States v. Haymond, stating succinctly that “[a] judge’s
authority to issue a sentence derives from, and is limited by, the jury’s factual
findings of criminal conduct.” 139 S. Ct. 2369, 2376 (2019).
      The conflict lies in the two intertwined but starkly different treatments of cases
in which the jury does not make a finding on an aggravating element of an offense

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beyond a reasonable doubt. One strain leads us to harmless error analysis; the other
leads us to remand for a punishment resentencing according to the jury’s verdict.
That said, the Court of Criminal Appeals’ opinion directs us to perform a harm
analysis. Although it seems in conflict with Alleyne, the Court of Criminal Appeals
in Niles relies on Neder and Recuenco to suggest that a harmless error type analysis
is appropriate. Guiding our focus, Niles gives us this framework:
      [T]he courts asked whether the element not included in the instructions
      was inherent in the elements that the jury did find. If the missing
      element was logically encompassed by the guilty verdict and was not
      in fact contested, the error was considered harmless. See, e.g., United
      States v. Stanford, 823 F.3d 814, 832 (5th Cir. 2016), cert. denied, –––
      U.S. ––––, 137 S. Ct. 453, 196 L.Ed.2d 330 (2016) (discussing Neder).

Niles, 555 S.W.3d at 572.
      In following the Court of Criminal Appeals’ directive, we should then look at
the elements that were actually presented to the jury and whether the missing element
was incorporated. Here, the public servant element was not inherently encompassed
by the terroristic threat elements.
      Because the panel opinion does not apply the correct framework to analyze
harm, I respectfully dissent from the denial of en banc reconsideration. Under the
correct framework, I would find the omission of the public servant element to be
harmful and remand this case to the trial court.



                                       /s/       Frances Bourliot
                                                 Justice

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).

Publish—Tex. R. App. P. 47.2(b).

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