             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                 NO. PD-0234-17 & PD-0235-17


                      SCOTT NILES, Appellant

                                   v.

                       THE STATE OF TEXAS

             ON DISCRETIONARY REVIEW ON
                THE COURT’S OWN MOTION
         FROM THE FOURTEENTH COURT OF APPEALS
                     HARRIS COUNTY

      N EWELL, J., delivered the opinion of the Court in which K ELLER,
P.J., AND K EASLER, H ERVEY, A LCALA, R ICHARDSON, K EEL AND W ALKER, JJ.,
joined. Y EARY, J., filed a dissenting opinion.

     Terroristic Threat is usually a Class B misdemeanor, but the offense

is Class A misdemeanor “if the offense is committed against a public

servant.” Scott Niles, a firefighter, was charged by information with two

counts of the Class A version for threatening his fellow firefighters. He

was arraigned, tried, convicted, and sentenced on the two Class A counts.
                                                                              Niles – 2

But the jury charges had tracked the Class B misdemeanor version of the

crime; the jury was not asked if the terroristic threats were against public

servants. Niles raised an “illegal sentence” claim on direct appeal. The

State conceded that the jury charges only authorized convictions for Class

B Terroristic Threat. The court of appeals reformed the judgments to

convictions for Class B misdemeanors and remanded for re-sentencing in

the Class B range.1 The question here is whether the court of appeals

erred in doing so.       We hold that it did.       The failure to include a jury

instruction on an element of an offense included within the charging

instrument amounts to jury charge error subject to a harm analysis. We

remand the case to the court of appeals to determine whether Appellant

suffered any harm.

                                        Facts

      Appellant was a Houston firefighter assigned to Fire Station 64. The

firefighters were required to have an unexpired driver’s license–a regular

one to drive the ambulance, or “a class B CDL” to drive the “heavy

apparatus, the ladder trucks and the pumpers.” They were assigned to

drive an ambulance on a rotating basis, an assignment that paid extra.



      1
        Niles v. State, Nos. 14-15-00498-CR & 14-15-00499-CR, 2016 W L 7108248, at *10-11
(Tex. App.— Houston [14th Dist.] June 7, 2016) (not designated for publication).
                                                                                     Niles – 3

On April 29, 2014, Appellant was assigned to drive.                            But a fellow

firefighter overheard him say that he did not have a driver’s license and

reported that to Captain Bradley Maddin. Appellant was summoned to

meet with Maddin and Senior Captain Andrew Haygood. They asked for

his license, and Appellant showed them his concealed handgun license,

something that looks “very similar to a Texas driver’s license” and “said

that the concealed handgun license was enough.”                         But it wasn’t, and

Haygood ordered Appellant to assume the role of patient care for the day;

he would not be driving the ambulance.                     He was ordered to get the

appropriate driver’s license before his next shift. Appellant did not take

it well. Later that morning, firefighters Robert Gordon and Mark Keelen

approached Appellant.             Gordon said that Appellant was “mumbling

something inaudible and Firefighter Keelen asked him what’s the matter.

To that he responded, I’m going to start shooting people, I just need to

figure out who I’m going to take out first.”2 Keelen elaborated.

       Q      And what exactly did he say?

       A      I am going to shoot everyone.


       2
           Gordon had heard som ething sim ilar from Appellant before. He testified that
“Approxim ately two or three weeks . . . prior to the incident we’re discussing, Scott Niles said
to m e in reference to Captain Maddin, I’d like to stab him in the neck.” Gordon was aware that
Appellant carried a knife, with a “very unusual shaped blade, unusual curve to it,” but did not
take this threat seriously at the tim e it was m ade.
                                                                Niles – 4

     Q     How did you respond to that?

     A     I said, including me. And it wasn’t in a joke that I said
           that. I said, including me.

     Q     And what did he say?

     A     He didn’t say anything. Just stone cold face, just sat
           there, didn’t respond at all.

     Q     So once he says this and you ask him including me, then
           what happens?

     A     It brought an      uneasy    feeling   in   my   stomach
           immediately.

     Q     And then what happened?

     A     We concluded the conversation and in that time Robert
           Gordon who was with me at that time, you know, he and
           I went over to–we have a chain of command. I’m sure
           you’ve heard about it through the other guys here. My
           chain of command as I’m a firefighter would be an
           engineer operator, otherwise known as an EO. And
           Robert Gordon and myself went to go speak with him
           about this issue and tell him what was said so he can
           pass it on.

     Q     I’m sorry. I thought you were done. You said you had an
           uneasy feeling in your stomach. What does that mean?

     A     I was in fear, you know, immediately I was in fear. Fear
           for my life.

Like many of the other firefighters, Keelen knew Appellant owned several

guns. Appellant would bring his guns to the station, leave them in the

back of his Subaru, and take firefighters down to show them off or try to
                                                                                     Niles – 5

sell them. “One that I remember, I would call it an UZI MAC-10 kind of

looking gun that was black in color.” 3

       Firefighter Robert Sadler and Appellant made an emergency run

together that same day. Sadler testified that Appellant appeared to be

“distant” and “upset” when he got in the ambulance.

       A      He got in, slammed the door, leaned against the
              window. He was wearing a ball cap at the time, had the
              ball cap down and was leaning against the window and
              looking straight ahead, and just kind of off in his own–in
              a zone, I guess you could say.

       Q      Did you make an effort to talk to him?

       A      Yes, ma’am.

       Q      And what did you say to him?

       A      I asked him if everything was okay.

       Q      What was his response?

       A      And he said that–he said that if he was going to kill
              everybody in the fire station, and then he told me the
              order in which he was going to do it.



       3
          Appellant later turned over at least eleven guns, am ong them a TEC-9 with a barrel
extension (SE 36); a M arlin lever action rifle, caliber 2520 (SE 33); a Mauser Action hunting
rifle (SE 34); a Sm ith and Wesson AR-15 (SE 44); two 12-gauge shotguns (SE 46 & 56); two
Marlin 22-caliber sem i-autom atic rifles (SE 48 & 50); a vintage Japanese m ilitary bolt action
rifle (SE 58); a Jennings sem i-autom atic pistol (SE 52); and, a Rossi revolver, 38 Special (SE
54). The weapons were adm itted for dem onstrative purposes; photos of them were adm itted
into evidence. In opening, Appellant’s attorney said, “about a year-and-a-half, a year before
the incident in question here, Niles inherited a large drove of guns from an uncle of his. Niles
is not a m assive gun guy, but his uncle died and left him with a bunch of guns, all of which I’m
sure the prosecution will introduce into evidence.”
                                                                   Niles – 6

     Q     And what order was that?

     A     It started off with Captain Haygood, Robert Gordon,
           myself were the top three. And as soon as he said the
           first three, I asked him why.

     Q     And what was his response?

     A     His response was because you guys are gun owners. And
           then he said he would follow with the officers and then
           the rest of it, everybody else.

Sadler said that back at the station, and in front of another firefighter,

Michael Lucas, Appellant said “if y’all piss me off, I will just come out and

kill everyone.”

     This was not an isolated occurrence. Appellant’s next shift was on

May 5, 2014. Once again, he talked about shooting up the station–this

time to firefighter Samuel Feris.

     Q     All right. And you were sitting there, you were reading
           you said, and what happened next?

     A     Scott came up and he was talking, but I was kind of
           trying to ignore him. I get really into my books when I’m
           reading. So I was trying to ignore him, but then at some
           point he made a statement that, I mean, I thought it
           was off, so it caught my attention.

     Q     What did he actually say to you?

     A     I don’t remember exactly the words that he used, but in
           my statement I had it. But it’s been about a year.

     Q     I understand.
                                                                   Niles – 7

      A        It was something to the effect of if I was going to kill
               everybody at the station, I would kill you last because
               you–it would take you longer to get away.

Captains Maddin and Haygood became aware of the threats that same

day. Haygood was concerned about his personal safety, as well as that of

his firefighters.

      Q        And why is that?

      A        Because I know that–I know what type of firearms
               Firefighter Niles has. I know that he has military
               experience. And I know that he is–I believe he is
               definitely irritated with me. So I was definitely–I was
               definitely concerned for myself, also my other–my crew
               members. I was concerned for everybody.

      Q        What specifically were you afraid he would do?

      A        Shoot me.

      Q        And what specifically were you afraid he would do to the
               other crew members?

      A        Shoot them.

The next day Haygood called Chief Robert Gutierrez for advice, and two

days later, on May 7, 2014, Haygood called Chief Casey. “Chief Casey

told me over the phone to tell Firefighter Niles to report [immediately] to

his office.”    Appellant was also ordered to see Dr. Sam J. Buser, the

clinical staff psychologist for the Houston Fire Department.              While

Appellant was absent from the station, investigators took statements
                                                                 Niles – 8

from the firefighters regarding Appellant’s comments. Appellant was later

told not to come back to the station.

                                  Trial

     Appellant was charged by information with two offenses of

terroristic threat–one against firefighter Mark Keelen, and one against

Capt. Haygood. The informations alleged that both were public servants,

Houston Fire Department Firefighters, which made the offenses Class A

misdemeanors.     During voir dire, both the trial judge and the State

discussed the “public servant” element. The prosecutor stated,

     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.

     During the trial, it was never an issue that Keelen and Haygood

were “public servants.” Instead, Appellant’s defense was that this was

“not a crime but a human relations issue.”      There was no imminent

threat; “When you go up the chain of command, you’re talking about H.R.

When you are scared for your life, you call the police.” In response to

Appellant’s motion for directed verdict on the cases, the trial judge said

of the “public servant” element, “The Houston Department firefighter,
                                                                   Niles – 9

they got that.”   The judge ultimately denied the motion for directed

verdict on the cases.

     Unfortunately, the jury charges did not ask the jury to determine

whether Keelen and Haygood were public servants. Though there were

separate written charges for each count, the judge read the two as a

combined charge out loud. Neither the accusation nor the application

paragraph included the public servant element. And the words “public

servant” do not appear anywhere in the middle of the charge.

     In closing arguments both sides made numerous references to

firefighters, but not “public servants.” The prosecution specifically went

over the three listed elements of Class B, Terroristic Threat, with the jury,

and made no mention of a public servant element. The defense did tie

the job of firefighter to the serving of the public:

     And to send him back to work for two more–two-and-a-half
     more solid days to mingle and to be in a position to have to
     save members of the public. Imminent threat of serious bodily
     injury? No, it’s not. It’s not even close.

The jury convicted Appellant.     Sentencing was by the judge and the

sentencing hearing was very informal. The prosecution did not ask for a

specific penalty other than probation with a condition of “at least thirty

days in the Harris County Jail.”      In sentencing Appellant, the judge
                                                                Niles – 10

mentioned the context of the crime and the importance of public

servants.

     And I don’t think you grasp how significant it is for this many
     people from your station where you worked to come in and
     testify against you. That’s significant. If firefighters are
     anything like police officers, they stand together, and they
     don’t turn on one another. At least I’ve never seen it happen.
     But what you were saying and doing was so disturbing, and
     these guys did, they turned on you.

     ...

     And I hope that you are able to find employment somewhere,
     because we need guys who know what they are doing out
     there helping people. And if you want to do your community
     service with a volunteer fire department, that’s fine by me,
     because I can’t think of a better service to the community
     than being a firefighter or an emergency medical technician.
     I hope you haven’t ruined your chances of doing that.

The judge sentenced Appellant in each case to one year in jail, probated

for two. These were over the Class B misdemeanor range (a term not to

exceed 180 days), but within the Class A range (a term not to exceed one

year). T EX. P EN. C ODE §§ 12.21, 12.22. The judgments also reflected that

Appellant had been convicted of two counts of Class A terroristic threat.

                                 Appeal

     On direct appeal, Appellant argued that there was Apprendi error in

the case. “Because the ‘fact’ that the complainants were public servants

could raise Niles’ punishment range, it had to be found by the jury.”
                                                                 Niles – 11

Appellant’s Br. 44 (citing Apprendi v. New Jersey, 530 U.S. 466, 476

(2000)). And because it wasn’t, “Niles is guilty only of Class B offense[s]”

and “both sentences are illegal” because they are outside the maximum

punishment for a Class B offense. The State conceded Apprendi error and

made the same recommendation that Appellant did, that the appellate

court reform the judgments to Class B, reverse the sentences in both

cause numbers, and remand for new punishment hearing. State’s Br. 27.

     Not surprisingly, the court of appeals did just that. The court noted

that “the jury charges track the language of the statute for the offense of

terroristic threat, a Class B misdemeanor, but fail to include any

instruction on the public servant element of the offense as a Class A

misdemeanor.” Niles, 2016 WL 7108248, at *10. It found that the “the

trial court erred in rendering judgments against appellant for terroristic

threat as Class A misdemeanors.”        Id.   Finding that the one year

(probated for two years) sentences imposed were void and illegal, the

court reformed the judgments to reflect Class B degree offenses, and

reversed for a new punishment hearing. Id. at *10-11.

     The State Prosecuting Attorney filed a motion for rehearing. In the

motion, the State argued that “Appellant’s ‘illegal sentence’ claims should

have been reviewed for harmless charge error as instructed by the United
                                                                  Niles – 12

States Supreme Court and our Court of Criminal Appeals.” State’s Mot.

1. After asking for and receiving a response from Appellant, the motion

was denied. We granted review on our own motion, to decide whether

the court of appeals erred in reforming the judgments to reflect

convictions for the lesser included, Class B misdemeanors.

                           Procedural Default

     Appellant argues that the State forfeited the claim that this case

involves charge error subject to a harm analysis. Appellant points out

that the State failed to object to the charge in the trial court, and did not

raise the issue in the court of appeals. Instead, the State conceded that

Appellant’s sentence was illegal. According to Appellant, this prevents the

the State Prosecuting Attorney from raising the issue for the first time in

its motion for rehearing to the court of appeals or in its petition for

discretionary review.

     It is true that, in a case in which the State is the party appealing,

the basic principle of appellate jurisprudence that points not argued at

trial are deemed to be waived applies equally to the State and the

defense. McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014).

But the State was not the appealing party in this case; the trial court

entered judgments for Class A misdemeanors and sentenced Appellant in
                                                                  Niles – 13

the Class A range.    Appellant was the appealing party in the court of

appeals. Under these circumstances, we have held that the State, as the

prevailing party at trial, need not raise a particular argument in favor of

the trial court’s ruling in a reply brief or even in a motion for rehearing

(as it did here) as a predicate to later raising it in a discretionary review

context. Id. (citing State v. Gobert, 275 S.W.3d 888, 891–92 n. 12 (Tex.

Crim. App. 2009); Sotelo v. State, 913 S.W.2d 507, 510 (Tex. Crim. App.

1995)). An appellee’s failure to make a particular argument on appeal is

a factor that may be considered when this Court decides whether to

exercise its discretion to grant discretionary review, but it does not bar

this Court from granting review to address the issue if the Court, in its

discretion, decides that review is warranted. Volosen v. State, 227

S.W.3d 77, 80 (Tex. Crim. App. 2007).

     And, although the State Prosecuting Attorney took a stance different

from that of the district attorney’s office, the SPA may “represent the

state in any stage of a criminal case before a state court of appeals if he

considers it necessary for the interest of the state.” T EX. G OV’T C ODE §

42.005. That authority is not dependent on a request from a district or

county attorney. Ex parte Taylor, 36 S.W.3d 883, 885 (Tex. Crim. App.

2001). As we have explained, the SPA “may step in without the local
                                                                  Niles – 14

prosecutor’s request to ‘represent the state’ when in his judgment it is

necessary.” Id.; Saldano v. State, 70 S.W.3d 873, 877 (Tex. Crim. App.

2002) (state prosecuting attorney has primary authority to represent the

State in this Court; district and county attorneys have the primary

authority to represent the State on appeal in other courts, subject to the

state prosecuting attorney’s authority to intervene in a court of appeals).

     Further, the State, in its position on rehearing and in its petition for

discretionary review, does not “reformulate” Appellant’s ground of error.

Appellant argued that his sentence is illegal because of some error that

occurred preliminary to the imposition of sentence, namely the lack of a

finding regarding one of the elements of the offense. See, e.g., Ex parte

Pue, ___ S.W.3d ___, 2018 WL 1109471 at *11 (Tex. Crim. App. 2018)

(Yeary, J., dissenting) (noting a distinction between a true illegal

sentence claim and one where a defendant is sentenced outside the range

of punishment because of an error in the proceeding). The SPA argues

in response that the judgments and sentences were not in fact “illegal”

because the error that caused the trial court to sentence Appellant

outside the applicable range is harmless. In other words, the judgments

and sentences were correct based upon an applicable theory of law, and

should have been sustained on appeal. Martinez v. State, 74 S.W.3d 19,
                                                                                Niles – 15

21 (Tex. Crim. App. 2002) (if the trial court’s decision is correct based

upon any applicable theory of law, then it will be sustained on appeal).

Both parties on direct appeal recognized Apprendi error–that is jury

charge error.4 The SPA pointed out to the court of appeals, and to this

court, that Apprendi error is subject to a harm analysis, and that such an

analysis applies here. The SPA is not barred from making this argument,

nor is our discretionary authority so feeble that we are barred from

addressing it. And to that argument–which is responsive to the question

we asked on our own motion–we now turn.

                                        Analysis

       The Sixth Amendment provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury....” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). The

right includes “as its most important element,” the right to have a jury,

rather than a judge, reach the requisite finding on guilt. Id. A judge can

direct a verdict for the defendant if the evidence is legally insufficient to

establish guilt, but he may not direct a verdict for the State, no matter

how overwhelming the evidence. Id. What the factfinder must determine



       4
        Appellant did not m ake an argum ent based upon the Texas Constitution, and the Texas
Constitution was not the basis for the court of appeals’ decision.
                                                               Niles – 16

to return a verdict of guilty is prescribed by the Due Process Clause. The

prosecution bears the burden of proving all elements of the offense

charged, and must persuade the factfinder “beyond a reasonable doubt”

of the facts necessary to establish each of those elements. Id. at 277-78;

Patterson v. New York, 432 U.S. 197, 210 (1977); In re Winship, 397

U.S. 358, 364 (1970).    “[T]he Fifth Amendment requirement of proof

beyond a reasonable doubt and the Sixth Amendment requirement of a

jury verdict are interrelated.” Sullivan, 508 U.S. at 278. “It would not

satisfy the Sixth Amendment to have a jury determine that the defendant

is probably guilty, and then leave it up to the judge to determine (as

Winship requires) whether he is guilty beyond a reasonable doubt.” Id.

So, “the jury verdict required by the Sixth Amendment is a jury verdict

of guilty beyond a reasonable doubt.” Id.

     In Apprendi v. New Jersey, the Supreme Court held that, other than

the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must likewise be

submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at

490. The Court noted any possible difference between an “‘element’ of
                                                                                   Niles – 17

a felony offense5 and a ‘sentencing factor’ was unknown to the practice

of criminal indictment, trial by jury, and judgment by court as it existed

during the years surrounding our Nation’s founding.”                        Id. at 478.      So

sentencing factors, like elements, are facts that have to be tried to the

jury and proved beyond a reasonable doubt. Id. at 490. The fact at issue

in Apprendi was whether the crime of possession of a firearm had been

committed with a purpose to “intimidate an individual or group of

individuals because of race, color, gender, handicap, religion, sexual

orientation or ethnicity.” Id. at 469. Because that “hate crime” factual

determination authorized an increase in the maximum prison sentence for

the offense from 10 to 20 years it had to be decided by a jury beyond a

reasonable doubt.

       In Blakely v. Washington, the Court made clear that the “‘statutory

maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” 542 U.S. 296, 303 (2004).                            Blakely had

pleaded guilty to the kidnapping of his estranged wife. The facts admitted

in his plea, standing alone, supported a maximum sentence of 53 months.


       5
        W hen a m isdem eanor defendant faces incarceration, as here, the due process principles
involved in felony trials are equally applicable to m isdem eanor trials. Argersinger v. Ham lin,
407 U.S. 25, 32-33 (1972).
                                                               Niles – 18

Id. at 298. But, after the judge made a finding that the kidnapping was

committed with “deliberate cruelty,” the judge imposed a sentence of 90

months—37 months beyond the standard maximum. Id. at 300. This,

the Court held, violated Blakely’s Sixth Amendment right to trial by jury.

     But the Supreme Court has made clear that a violation of these

constitutional rights (to a jury determination of whether the State has

proven “beyond a reasonable doubt” each of the elements of the crime

charged and any sentencing factors that increase the penalty for a crime

beyond the prescribed “statutory maximum”) is not “structural” error.

Neder v. United States, 527 U.S. 1 (1999); Washington v. Recuenco, 548

U.S. 212 (2006).    Unlike a jury charge which misdefines the State’s

burden of proof as being less than beyond a reasonable doubt, such

violations can be subject to a harm analysis.     Neder, 527 U.S. at 9;

Recuenco, 548 U.S. at 222.

     Neder was charged with mail fraud, wire fraud, and bank fraud.

Neder, 527 U.S. at 6. Materiality is an element of all three crimes, but

the district court failed to include materiality as an element of the

offenses in its instructions. Id. at 4-6. The Supreme Court nonetheless

held that harmless-error analysis applied to these errors, because “an

instruction that omits an element of the offense does not necessarily
                                                                  Niles – 19

render a criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” Id. at 9. And it did not do so in Neder’s

case:

        Neder was tried before an impartial judge, under the correct
        standard of proof and with the assistance of counsel; a fairly
        selected, impartial jury was instructed to consider all of the
        evidence and argument in respect to Neder’s defense against
        the tax charges. Of course, the court erroneously failed to
        charge the jury on the element of materiality, but that error
        did not render Neder’s trial “fundamentally unfair,” as that
        term is used in our cases.

Id.   So the omission of an element is not like the giving of a defective

“reasonable doubt” instruction.     Only the latter “‘vitiates all the jury’s

findings,’ and produces ‘consequences that are necessarily unquantifiable

and indeterminate.’” Id. at 11 (quoting Sullivan, 508 U.S. at 281–82).

        Recuenco was charged with assault with a deadly weapon, a

handgun. The jury found him guilty and answered the special “deadly

weapon” issue in the affirmative. Recuenco, 548 U.S. at 214. It did not

specifically find that the “deadly weapon” used was a “firearm” which

finding, under Washington law, calls for a mandatory three-year

enhancement. Id. at 215. The judge nevertheless sentenced Recuenco

pursuant to the “firearm” enhancement.        The State conceded a Sixth

Amendment violation occurred under Blakely, but urged the Supreme
                                                                Niles – 20

Court of Washington, unsuccessfully as it turned out, to find the Blakely

error harmless.   Id. at 216.   The question before the United States

Supreme Court was whether Blakely error could ever be deemed

harmless. Id. at 217-18. Washington and the United States argued that

the case was indistinguishable from Neder. Id. at 220. And the Supreme

Court agreed.

     The only difference between this case and Neder is that in
     Neder, the prosecution failed to prove the element of
     materiality to the jury beyond a reasonable doubt, while here
     the prosecution failed to prove the sentencing factor of
     “armed with a firearm” to the jury beyond a reasonable doubt.
     Assigning this distinction constitutional significance cannot be
     reconciled with our recognition in Apprendi that elements and
     sentencing factors must be treated the same for Sixth
     Amendment purposes.

Id. See also Alleyne v. United States, 570 U.S. 99, 113 (2013) (“the core

crime and the fact triggering the mandatory minimum sentence together

constitute a new, aggravated crime, each element of which must be

submitted to the jury”).   Susceptibility of the errors in Recuenco and

Neder to a harm analysis did not turn on the fact that the district judges

made the formal findings on the missing elements or sentencing factors

in those cases. See Recuenco, 548 U.S. at 214-15 (the trial court applied

a 3-year firearm enhancement to respondent’s sentence based on its own

factual findings); Neder, 527 U.S. at 6 (the court found, outside the
                                                                 Niles – 21

presence of the jury, that the evidence established the materiality of all

the false statements at issue). Rather, it rested on the following legal

principles: constitutional error at trial alone does not entitle a defendant

to automatic reversal; most constitutional errors can be harmless; and

where defendant had counsel and was tried by an impartial adjudicator,

there is a strong presumption that any other constitutional errors that

may have occurred are subject to harmless-error analysis. Recuenco,

548 U.S. at 218, Neder, 527 U.S. at 8.

     That is why many different state courts have relied on these cases

to hold that an omission of a element (whether it be an essential element

of the offense or a sentencing “element”) from jury instructions does not

require automatic reversal, and may be harmless error. See Campos v.

State, 217 So. 3d 1, 8 (Ala. Crim. App. 2015) (jury instructions failed to

ask jury to find that victim was 6 or under, and defendant was 21 or

older); State v. Lizardi, 323 P.3d 1152, 1156 (Ariz. Ct. App. 2014) (jury

instructions failed to ask jury to find that defendant had been on parole

on the date of the prohibited possessor offense); People v. Merritt, 392

P.3d 421, 427 (Cal. 2017) (jury instructions failed to ask jury to find

certain essential elements of robbery), cert. denied, 138 S.Ct. 315

(2017); State v. Ardoin, 58 So. 3d 1025, 1041-1045 (La. Ct. App. 2011)
                                                                Niles – 22

(jury instructions failed to ask jury to find that victim was under 13, and

defendant was 17 or older); State v. Rende, 907 N.W.2d 361, 363-64

(N.D. 2018) (jury instructions failed to ask jury to find that defendant

knew trooper was working in official capacity during the traffic stop);

State v. Ochoa, 341 P.3d 942, 943-44 (Utah Ct. App. 2014) (jury

instructions failed to ask jury to find that defendant was inmate in a

correctional facility). See also People v. Mountjoy, ___ P.3d ___, 2016

WL 3094453, *2 (Colo. App. Apr. 24, 2017) (rev. granted) (collecting

federal and state cases holding Apprendi/Blakely harmless if the record

shows beyond a reasonable doubt that a jury would have found the fact

or facts relied on to aggravate, had the jury been asked to do so). In all

of these cases the 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, 137 S. Ct. 453 (2016) (discussing Neder).

     We applied these rules in Olivas v. State, 202 S.W.3d 137 (Tex.

Crim. App. 2006). Structural (or automatically reversible) error goes to

a complete mis-direction or failure to instruct on the reasonable doubt
                                                                 Niles – 23

standard; a failure to instruct the jury on one element of an offense or a

failure to submit a sentencing issue to the jury under Apprendi is not

structural error; it is subject to a harm analysis. Id. at 142-43 (citing

Sullivan, Recuenco and Neder).       As we explained, “[i]f omitting an

element entirely from the jury charge is not structural error, it naturally

follows that the failure to instruct the jury on the State’s burden of proof

regarding one element of an offense (or on a sentencing issue) is not

structural error.” Id. at 143. See also Brock v. State, 495 S.W.3d 1, 12

(Tex. App.—Waco 2016, pet. ref’d) (rejecting, in a retaliation against a

public servant case, the argument that instructing jury that the county

judge complainant was a “public servant” under Texas law, instead of

asking jury to make that determination, was structural error).

     Appellant argues that the sentence in his case was illegal because

he was sentenced outside the appropriate range of punishment. But, as

discussed above, this is not an illegal sentence case. The error in this

case is like that in Neder. The error was the omission of an element of

the offense from the jury charge even though the element had been

pleaded in the charging instrument and tried before the jury. Cf. Wooley

v. State, 273 S.W.3d 260, 272 (Tex. Crim. App. 2008) (holding that it

violated due process to affirm a conviction based upon a theory of party
                                                                                    Niles – 24

liability that had not been included in the indictment or presented to the

jury while acknowledging that merely omitting an element of the offense

in the jury charge did not necessarily violate due process). Both parties

on direct appeal recognized that the error in this case was Apprendi-type

error.6 What they didn’t recognize is that such error is subject to a harm

analysis.




       6
           Appellant argued

       In Apprendi, the United States Suprem e Court clearly held that “under
       the Due Process Clause of the Fifth Am endm ent and the notice and jury trial
       guarantees of the Sixth Am endm ent, any fact (other than a prior conviction)
       that increases the m axim um penalty for a crim e m ust be charged in an
       indictm ent, subm itted to a jury, and proven beyond a reasonable doubt.”
       Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. United
       States, 526 U.S. 227, 243 (1999)). Because the “fact” that the com plainants
       were public servants could raise Niles’ punishm ent range, it had to be found
       by the jury.

Appellant’s Br. 44-45.

The State, in its brief–acknowledged the Apprendi error

       To obtain a conviction for terroristic threat against a public servant, the
       elem ents of the offense m ust be included in the charging instrum ent, subm itted
       to a jury, and proven beyond a reasonable doubt. Jones v. U.S., 526 U.S. 227,
       232 (1999); see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding
       that, other than a prior conviction, “any fact that increases the penalty for a
       crim e beyond the prescribed statutory m axim um m ust be subm itted to a jury,
       and proved beyond a reasonable doubt”). An elem ent of the offense is defined
       as the “forbidden conduct, the required culpability, any required result, and the
       negation of any exception to the offense.” TEX. PENAL CODE ANN. §
       1.07(a)(22)(W est 2015). . . . W hether the com plainant was a public servant is
       a fact that changes the degree of the offense; therefore, it was an elem ent of the
       offense that should have been subm itted in the jury charge.

State’s Br. 26-27.
                                                                    Niles – 25

                                   Conclusion

         Appellant went to trial on informations of terroristic threat of a

public servant.        This provided Appellant with notice of the charged

offenses and the ability to prepare a defense, as required by our state

and federal constitutions.       Like Neder, Appellant was tried before an

impartial judge, under the correct standard of proof and with the

assistance of counsel; a fairly selected, impartial jury was instructed to

consider all of the evidence. The element of Keelen and Haygood’s status

as public servants was not submitted to the jury, violating Appellant’s

Sixth Amendment right to a jury trial, but that error did not render

Appellant’s trial “fundamentally unfair.” That failure did not vitiate all the

jury’s     findings,   or   produce   consequences    that   are   necessarily

unquantifiable and indeterminate.         The failure went unnoticed–by the

parties and the judge–until Appellant brought it to the attention of the

appellate court.       Because that failure is subject to a harm analysis, the

court of appeals erred to reform the judgments to Class B offenses

without first analyzing whether the jury charge error resulted in harm.

Therefore, we reverse the judgment of the court of appeals and remand

the case to the court of appeals for proceedings consistent with this

opinion.
                           Niles – 26



Delivered: June 13, 2018

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