Opinion
NO. PD-0556-20
09-29-2021
Phi Van DO, Appellant v. The STATE of Texas
Clinton Morgan, Houston, for State of Texas. Theodore Lee Wood, Austin, for Appellant.
Clinton Morgan, Houston, for State of Texas.
Theodore Lee Wood, Austin, for Appellant.
Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Keel and McClure, JJ., joined.
A first-time DWI is a Class B misdemeanor unless the State also proves that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, in which event it becomes a Class A misdemeanor. Appellant's charging instrument included the 0.15 allegation, but the State did not read the allegation until the punishment stage of trial. The parties agree that the 0.15 allegation is an element of the offense of Class A misdemeanor DWI. They also agree that an error occurred, but they disagree on what kind of error it is. The State also contends that the court of appeals erred in its harm analysis. Assuming the parties are correct that 0.15 allegation is an element, we conclude that the error would be the denial of the right to a jury determination of that element. We also conclude that this purported error was harmless because the 0.15 allegation was uncontroverted and the record indicates the defendant could not bring forth facts to contest it.
I. BACKGROUND
A. Facts
Appellant was charged by information with driving while intoxicated (DWI). The information included the aggravating allegation that "an analysis of a specimen of the defendant's BREATH showed an alcohol concentration level of at least 0.15 at the time the analysis was performed." The guilt stage of trial was before a jury and the punishment stage was before the trial court. At the guilt stage, the prosecutor read only the portion of the information that included the base elements of DWI, without the 0.15 aggravating allegation. Appellant pled "not guilty." No comment or objection was made by either party regarding the State reading only the base elements of the DWI offense to the jury.
The evidence at trial showed the following: Appellant's vehicle hit another car. Appellant approached the other car to ask if the occupants were okay, and one of the occupants noticed that Appellant smelled of alcohol. The police officer who investigated the offense noticed that Appellant smelled of alcohol and had slurred speech. Appellant admitted to the officer that he had been driving and had had two beers. Appellant was taken to the Houston Police Department Central Intoxilyzer station for further evaluation. While there, he took and failed two field sobriety tests: the one-leg-stand and the walk-and-turn tests. These were captured on video. According to the technician who later administered the breath test, Appellant slurred some of his words, but his mannerisms and speech patterns did not look like those of someone who was highly intoxicated.
The technician testified on direct examination to Appellant failing the field sobriety tests. His opinion about how intoxicated Appellant looked on the video was given on cross-examination, when he agreed that, although there was some slurring of Appellant's speech, "a person [who] is presumed to be highly intoxicated ... would not exhibit the mannerisms and speech patterns evidenced in this video." The technician also agreed that Appellant was from Vietnam and that English was not his primary language. On redirect examination, the technician testified that everyone shows intoxication differently and that not every intoxicated person has slurred speech. He also agreed that a person could be intoxicated and speak normally.
Appellant consented to a breath test. The technician who administered the breath test testified that he was a certified operator for the test, and he told the jury about the procedures he followed in connection with the test. He testified that the testing machine was not damaged, that he obtained "a valid breath sample" from Appellant, and that the machine produced a test showing a valid breath sample.
Before testifying about obtaining a valid breath sample, he testified that suspects typically provide two samples to the breath machine. Appellant did provide two samples.
A technical supervisor testified that the results for the two breath samples showed alcohol concentration levels of 0.194 and 0.205. She explained the scientific theory underlying the machine that analyzed the samples and said that this theory was accepted by the scientific community. She then explained how the instrument applied this theory and said that the instrument applied the theory properly in Appellant's case. She said that the machine was properly functioning when it took the breath samples, and it could accurately detect and quantitate alcohol on a person's breath. She also testified that there was a complete analytical report, that there were no incomplete test messages, that everything was clearly printed, that all of the error blanks were zeros, that the test was complete in the analysis box, and that the signature of the person who operated the machine was at the bottom of the report. She also testified that the two samples were within the allowed 0.02 concentration of each other. She also discussed the concept of tolerance to alcohol:
Tolerance is the ability to mask those outward signs of intoxication. Just because a person—just because a person has a high tolerance, does not mean
their concentration will not show what they've had. If you had a six-pack of beer, your concentration will show you had a six-pack of beer even though you may not outwardly look like you consumed that much.
On cross-examination, the technical supervisor was asked various questions about the behavior she would expect from someone who tested at a 0.20: whether she would expect to see slurred speech, disorientation as to time and place, not being able to carry on a conversation, having mental confusion, passing out, or not being able to converse and tell people their phone numbers and how to travel up and down the freeways. To all of these questions she responded, "It's a possibility." At the end of these series of questions, she added, "Everybody shows outward signs of intoxication differently." When asked if "those are the standard things that you would expect that with a breath test result that is purportedly that high," she responded, "Again I can't look at a person and say, this person is a .20 based off their actions. Everybody shows signs of intoxication differently." She also acknowledged that radio frequency interference with a test was possible.
The technical supervisor further testified on cross-examination that the operational system check for the test occurred at 11:56 p.m. She said that this is when the test technically began. She said that the first breath sample was taken at midnight. She admitted that, in a sworn affidavit for an administrative license revocation (ALR) hearing, she stated that the breath test started at 11:55 p.m. and that this was an inconsistent starting time from what she testified to at trial.
On redirect examination, the technical supervisor testified that any radio frequency interference with the breath test would have caused an incomplete result, and she agreed that "since we have a valid test here, that did not happen."
In closing argument, defense counsel contended that the discrepancy in the technical supervisor's testimony regarding the start time for the breath test "makes the test erroneous." Defense counsel characterized the discrepancy as between 11:55 p.m. and midnight. Defense counsel also contended that the video showed that Appellant's speech was not slurred, that he was "in tune with time and place," and that his speech was otherwise clear. He also argued, "You don't get a 19 or a 2-0 and then have somebody evidence clear speech."
The jury charge alleged the base elements of DWI: that the defendant operated a motor vehicle in a public place while intoxicated. "Intoxicated" was defined as either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, or (2) having an alcohol concentration of .08 or more. The jury charge did not include the 0.15 aggravating allegation, and neither party objected to its absence. The jury returned a guilty verdict and was released from service.
Four days later, the trial judge held the punishment stage of trial. At the beginning of the proceeding, the State read the 0.15 aggravating allegation. Defense counsel objected:
Your Honor, that element was not presented to the jury for their consideration as part of deliberations. We would object to the enhanced element at this time. They tried it as a loss of use case.
The State responded:
The response from the State is that it's a punishment element. It wasn't an element of the actual offense. We did have evidence that the analysis of the breath was above a .15. We tried it as—all
three were able to prove intoxication and the BAC actually came out at trial.
The trial court overruled the objection and immediately found the 0.15 aggravating allegation to be true. No evidence was presented at the punishment stage, the State offered no closing argument, and defense counsel requested probation.
When the trial court asked if there was any legal reason why the Court should not impose punishment, defense counsel and Appellant both said that there was not. The trial court then assessed a sentence of one year, probated the sentence for twelve months, assessed a fine of $250, and talked about some conditions of probation. The trial court asked the defendant if he had any questions, and the defendant said that he did not. The trial court then asked, "Anything else from anyone?" The prosecutor and defense counsel both responded that they had nothing further to say.
B. Appeal
Appellant complained on appeal about the trial court's determination of the 0.15 aggravating allegation at the punishment stage of trial. Specifically, his third issue argued that the trial court erred in treating the allegation as a punishment matter when it was in fact an element of the offense. And his fourth issue argued that the trial court denied him his federal constitutional right to a jury determination of the allegation. The State conceded that the 0.15 aggravating allegation was an element of a Class A misdemeanor DWI offense and should have been submitted to the jury at the guilt stage of trial. The court of appeals agreed.
See Do v. State , 629 S.W.3d 307, 309-10 (Tex. App.—Houston [14th Dist.] 2020).
Id.
Id.
Id. at 313-14.
Id. at 312-14.
In addressing the standard for determining harm, the court of appeals said that preserved jury charge error is evaluated for "some harm" unless the error was constitutional, in which case the standard is whether the error was harmless "beyond a reasonable doubt." Concluding that the error was constitutional, the court of appeals applied the "beyond a reasonable doubt" standard. The court of appeals concluded that the error was not harmless beyond a reasonable doubt because the jury charge permitted conviction on a theory other than alcohol concentration, there was evidence of intoxication besides the breath test, and the breath test results did not go uncontested. For this last proposition, the court pointed to evidence that Appellant was "speaking clearly and coherently" at the Central Intoxilyzer station and that the breath-test technician "agreed that highly intoxicated people would not present mannerisms and speech patterns like appellant did in the video." Also in support of this last proposition, the court of appeals noted the technical supervisor's inconsistent statements about the starting time for the breath test. The court also recited defense counsel's argument purporting to contest the breath results on these two points. The court of appeals reformed the conviction from Class A misdemeanor DWI to Class B misdemeanor DWI and remanded the case for a new punishment hearing.
Id. at 313-14.
Id.
Id. at 314-17.
Id. at 316-17.
Id.
Id.
Id. at 317.
II. ANALYSIS
A. The Parties’ Arguments
In three grounds, the State takes issue with the court of appeals's harm analysis. First, the State contends that the court of appeals erred to apply the constitutional harm standard to unobjected-to jury charge error. Second, the State contends that the court of appeals erred in concluding that a punishment-stage objection preserved error in the guilt-stage jury charge. Finally, the State contends that the court of appeals erred to find harm under any standard because the 0.15 aggravating element was an uncontested matter established by objective facts.
Appellant contends that the State's harm arguments are irrelevant because there was no error in the jury charge. He argues that the State failed to join issue on the 0.15 aggravating element when it failed to read that allegation at the guilt stage of trial. He further contends that, in failing to read this allegation, the State abandoned it. Consequently, Appellant contends, the jury was correctly charged on Class B misdemeanor DWI. Appellant further argues that the error in this case was the trial court allowing the State to join issue on the 0.15 aggravating element at the punishment stage of trial. Appellant contends that this error was properly preserved and that no harm analysis was required because the State failed to obtain a finding on the aggravating element. He analogizes to the situation in which an appellate court finds the evidence legally insufficient.
When asked at oral argument what harm standard would apply if the error at issue were found to be jury charge error, Appellant's attorney agreed with the State's position that the applicable harm standard would be the egregious-harm standard for unobjected-to jury-charge error. Appellant's attorney also agreed that such an error would be harmless, although he contended that was because Appellant could not be harmed by being subjected to a lesser offense.
B. Assuming 0.15 Allegation is an Element
The parties and the court of appeals have all concluded that the 0.15 aggravating allegation is an element of the offense of Class A misdemeanor DWI. There is at least a colorable argument for that conclusion under Oliva v. State , but we need only assume the truth of that conclusion without deciding it. Assuming the correctness of that conclusion, we address the views of Appellant and the court of appeals.
See 548 S.W.3d 518, 530 (Tex. Crim. App. 2018) ("If, on the other hand, the statutory aggravating fact would be part of the circumstances of the offense on trial, that would be a factor in favor of construing the statutory aggravating fact as an element of the offense.").
C. Appellant's "Failure to Join" Argument
In Niles v. State , the jury charge failed to include an element of the charged offense of terroristic threat that raised the offense from a Class B misdemeanor to a Class A misdemeanor—that the offense was committed against a public servant. We held that this failure was jury-charge error rather than a conviction on a lesser-included offense. One salient difference exists between the present case and Niles , and it is the crux of Appellant's argument. In Niles , the public-servant element was presumably included in the allegations read by the State when it read the information at the guilt stage of trial. Here, however, the 0.15 aggravating element was not read to the jury at the guilt stage of trial. Because it was not read, Appellant reasons, the 0.15 aggravating element was not a part of the case at the guilt stage of trial, and so the jury charge in this case (unlike in Niles ) was not erroneous.
555 S.W.3d 562, 564 (Tex. Crim. App. 2018).
Id.
See id. at 566-67. The opinion does not explicitly say that occurred but it does not say that the public-servant element was omitted from the reading of the information and, unlike the present case, the State took the position from the outset that it had to prove the element at guilt. See id.
Although Appellant's failure-to-join argument might, at first blush, appear to be an issue that should have been the subject of a cross-petition because the court of appeals did not address it, his contention goes to the nature of the error itself, and the State's criticisms of the court of appeals's harm analysis necessarily turn, to some degree, on the nature of the error. What exactly the error in this case was and when it occurred can greatly affect the harm analysis, making a careful inquiry into the nature of the error itself necessary. Also, Appellant's view, if correct, would have dramatic consequences for how this sort of issue is analyzed, and failing to account for it could create an unacceptable distortion in our jurisprudence. And the State has responded to his view in a reply brief, so we have input from the adverse party.
But we conclude that Appellant's view is incorrect. All of the cases that involve a failure of the State to timely read from the charging instrument involve the entire failure to read (or timely read) the charging instrument or the entire failure to timely read the punishment enhancement allegations. None involve the late reading of only some of the elements of the charged offense.
See e.g. , Turner v. State , 897 S.W.2d 786, 789 (Tex. Crim. App. 1995) (punishment enhancement paragraph not read); Warren v. State , 693 S.W.2d 414, 416 (Tex. Crim. App. 1985) (punishment enhancement paragraphs not read); Welch v. State , 645 S.W.2d 284, 286 (Tex. Crim. App. 1983) (punishment enhancement paragraph read late at punishment stage); Peltier v. State , 626 S.W.2d 30, 30 (Tex. Crim. App. 1981) (indictment not read and defendant did not enter plea to it in jury's presence); Essary v. State , 53 Tex. Crim. 596, 600, 111 S.W. 927, 929 (Tex. Crim. App. 1908) (indictment read late at guilt stage). See also Marshall v. State , 185 S.W.3d 899, 901-02 (Tex. Crim. App. 2006) (after the parties had closed, trial court entered plea of not true on behalf of defendant, and prior convictions to enhance punishment in notice of intent to enhance punishment were alleged for the first time in jury charge).
See supra at n.20.
Moreover, Appellant's proposed remedy—striking the 0.15 finding from the case—misconceives the nature of the error and is at odds with the remedy applied in cases involving joining an issue. Error in connection with the State's failure to timely join issue on an allegation in the charging instrument is treated as trial error, not as an insufficiency of the evidence. And the error is not the late reading of the charging instrument or of a punishment enhancement allegation but the introduction of evidence before the charging instrument or punishment allegation was read. When the charging instrument was not read at all, the remedy on appeal is a new trial, since, in such a case, none of the evidence was properly before the jury. When the charging instrument is read late, or when a punishment enhancement allegation is read late, the error can be cured by reading the charging instrument or punishment allegation (to the jury if it is the factfinder), having the accused enter a plea to it, and having the State reintroduce the evidence heard before the charging instrument was read (or the parties can stipulate to the evidence). When the charging instrument is read late, a defendant forfeits error if he fails to raise an objection that puts the trial court on notice of the correct curative measures. For example, a defendant could object to evidence that was introduced before the charging instrument or enhancement allegation was read (essentially requesting that the evidence be stricken), and such an objection would place the trial court on notice of the State's need to reintroduce the evidence. What the defendant cannot do is simply object to the late reading of the charging instrument. Contrary to the practice of taking curative measures in response to the late reading of a charging instrument, Appellant made no request for curative measures when the 0.15 allegation was read late; he simply wanted the 0.15 allegation excluded from consideration, and that remedy was not an option.
Marshall , 185 S.W.3d at 902-03 ; Welch , 645 S.W.2d at 286.
See Warren , 693 S.W.2d at 416 (commenting that a mistrial motion in a prior case that "was directed at the trial court's decision to allow the State to read the indictment to the jury after having elicited testimony from a witness" was "properly overruled" and referring to procedure to cure the error); Welch , 645 S.W.2d 286 ("The error that occurred was the trial court's erroneous ruling on appellant's request to strike" the testimony of a witness that occurred before the reading of the enhancement allegation. "Had the court made a correct ruling it would have been proper for the State to reintroduce that testimony by bringing [the witness] back to the stand.").
Peltier , 626 S.W.2d at 31-32 ; Essary , 53 Tex. Crim. at 604, 111 S.W. at 931.
Warren , 693 S.W.2d at 416 ("The procedure to be followed has been long established: upon learning of the error, the indictment is read to the jury, the accused enters a plea and the State reintroduces the evidence; or the parties may stipulate to the evidence."); Welch , 645 S.W.2d at 286.
Warren , supra (citing Castillo ); Welch, supra at 285 ("The testimony of Woody, having been presented before appellant's plea and not having been stipulated or reintroduced, was not properly before the jury, and appellant's objection was sufficient to point out this defect to the trial court."); Castillo v. State , 530 S.W.2d 952, 954 (Tex. Crim. App. 1976) (Where the State requested that it be allowed to reintroduce the evidence and the trial court declined to do so, "in the absence of an objection directing the court to the correct procedure, we hold that the error was not preserved, under the circumstances here presented. Appellant's motion was for a mistrial and it was properly denied by the court.").
Welch , supra .
See supra at n. 26 (citing Warren and Castillo ).
Crafting curative measures at the punishment stage of trial for what happened in this case would be a challenging task, which might make Appellant's novel remedy of striking the charging-instrument allegation seem simple in comparison. But the challenge in fashioning appropriate curative measures exposes the untenability of the entire idea of splitting an element off from the offense for the purpose of determining whether the State has joined issue on it. We conclude that there is no such thing as joining issue on only some of the elements of an offense in the charging instrument.
In a Texas case, a jury first found the defendant guilty of driving while intoxicated, and then, after a special-issue hearing, found that his BAC was 0.15 or more at the time the analysis was performed. Diamond v. State , 613 S.W.3d 536, 540 (Tex. Crim. App. 2020). We did not specifically comment on this procedure, but we did ultimately affirm the denial of habeas relief. See id. at passim & 548. In a California case, the State was allowed to reopen the guilt stage of trial after the close of the penalty stage evidence to submit to the jury a special issue regarding intent to kill as an aggravating circumstance. People v. Harris , 47 Cal. 3d 1047, 1055, 255 Cal.Rptr. 352, 767 P.2d 619 (1989). The California Supreme Court did not explicitly comment on the permissibility of this procedure but held that error in omitting the instruction from the original guilt stage jury charge was harmless because the State's theory and the overwhelming evidence showed that the defendant was the triggerman and not a mere party to the offense. Id. at 1099-1100, 255 Cal.Rptr. 352, 767 P.2d 619. In Welch , our Court said in a footnote, "The State cannot reopen and present more guilt stage evidence after the verdict is returned," though it cited no authority for that position. 645 S.W.2d at 285 n.1. In the present case, the State would not have needed to reopen the evidence—the breath test results were introduced at guilt—but would have needed to reopen the verdict. There is statutory and constitutional support for the conclusion that jeopardy does not terminate when the defendant had notice at the guilt stage of the aggravating element, the aggravating element had not been submitted to the jury, and the trial had not yet ended when the problem was discovered. See Tex. Code Crim. Proc . art. 37.07, § 3(c) ("If the jury finds the defendant guilty and the matter of punishment is referred to the jury, the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment."); Price v. Georgia , 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ("this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge ") (emphasis added); Pope v. State , 509 S.W.2d 593, 595 (Tex. Crim. App. 1974) (quoting Price ). See also Price , 398 U.S. at 326, 90 S.Ct. 1757 ("concept of continuing jeopardy ... has application where criminal proceedings against an accused have not run their full course"). Cf. Turner v. State , 518 S.W.2d 243, 244 (Tex. Crim. App. 1975) (defendant was acquitted of charged offense of murder with malice when that offense was submitted, the jury found defendant guilty of lesser offense of murder without malice, and mistrial was declared after jury deadlocked on punishment). Theoretically, with jeopardy having not terminated, the guilt proceeding in the present case could have been reopened. But recalling the jury after four days would not have been permitted. See Cook v. State , 390 S.W.3d 363, 372-73 (Tex. Crim. App. 2013). That might theoretically leave open the option of a mistrial as to guilt. And a failure to request a mistrial can forfeit error for failing to grant one. See Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (right not to be subject to incurable jury argument can be forfeited). Curing error in connection with an allegedly late reading of a guilt allegation at the punishment stage seems easier if the same factfinder decides both stages of trial—judge or jury—but it might be possible to cure error even in a two factfinder trial, and if it is, that possibility would suggest that Appellant forfeited any such error in this case.
Appellant's proposed remedy would make sense if the State's failure to read the 0.15 allegation at the guilt stage of trial were viewed as an abandonment of that allegation, and Appellant seeks to have it viewed that way. But the rule for abandonment is that the "State may, with the consent of the trial court, dismiss, waive, or abandon a portion of the" charging instrument. This rule contemplates that the State take "affirmative action" to effectuate an abandonment and that it obtain the trial court's permission to do so. Neither occurred in the present case. Simply failing to read an allegation is not an affirmative act to abandon it. And the trial court does not grant permission to abandon a portion of a charging instrument simply by accepting a plea. What happened in this case illustrates very well why an abandonment did not occur: the State believed that the 0.15 allegation was a punishment issue, so it never intended to abandon the allegation. The requirement of affirmative action and trial court consent points to another characteristic of an abandonment that is true at least until the trial is over—it is purposeful. The State cannot inadvertently abandon a charging-instrument allegation, except perhaps by a failure to pursue it at trial at all and a resulting judgment for a lesser offense.
Duran v. State , 492 S.W.3d 741, 745 (Tex. Crim. App. 2016) ("State may, with the consent of the trial court, dismiss, waive, or abandon a portion of the indictment.") (citing Ex parte Preston , 833 S.W.2d 515 (Tex. Crim. App. 1992) ); Preston , 833 S.W.2d at 517 (same) (citing as "see also" Wallace v. State , 145 Tex. Crim. 625, 170 S.W.2d 762 (Tex. Crim. App. 1943) ). See Wallace , 145 Tex. Crim. at 629, 170 S.W.2d at 764 (citing predecessor to Art. 32.02); Tex. Code Crim. Proc. art. 32.02 ("The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.").
Preston, supra at 518.
An analogous legal situation provides further support for our conclusion that this case involves neither the failure to join an allegation nor the abandonment of one: when a charging instrument is defective because it omits an element that raises the degree of the offense. In Kirkpatrick v. State , the indictment lacked an element necessary to make the offense a felony, but we held that the return of the indictment in district court and a felony notation on the indictment placed the defendant on notice that he was being charged with a felony offense rather than a misdemeanor. So the indictment charged the felony offense, albeit defectively, and the defendant was required to object to the omission before the date of trial. In Teal v. State , an indictment returned in district court specified that the defendant hindered the arrest of a person for the offense of Failure to Comply with Registration as a Sex Offender, which was a felony, but the indictment failed to specify that the defendant had knowledge of the fugitive's felony status. The indictment included only one of the two elements needed to raise the offense to a felony. We concluded that the indictment was a defective indictment for the felony offense of hindering apprehension rather than a facially complete indictment for the misdemeanor offense. Because it was a defective indictment, the defendant forfeited his claim by failing to object before the date of trial.
See Kirkpatrick v. State , 279 S.W.3d 324, 326, 329 (Tex. Crim. App. 2009).
Id. at 329.
230 S.W.3d 172, 174, 181-82 (Tex. Crim. App. 2007).
Id. at 182.
Id.
The failure to read an aggravating element in the charging instrument is analytically similar, in relevant respects, to a charging instrument that omits an aggravating element but otherwise conveys notice of the aggravated offense. When an allegation that exposes the defendant to a greater punishment range is included in the charging instrument, and the State has not expressly abandoned it, the defendant is on notice of the allegation. When that allegation is an element of the charged offense, the defendant would know, at the time the prosecutor reads from the charging instrument, that one of the elements of the charged offense was not read. At that time, the defendant is in a position to object to this incomplete reading of the charged offense. Having failed to do so, he forfeits error regarding the incomplete reading of the charging instrument.
Marshall , 185 S.W.3d at 903 ("If the enhancements are in the indictment and the state does not abandon them, the defendant is on notice that the state is still seeking a greater penalty range.").
The main analytical difference between the failure to read an element in the charging instrument and the omission of an element in the charging instrument is when a defendant is on notice of the problem. While the proper time to object to the omission of an element in the charging instrument is before the date of trial, the proper time to object to the failure to read an element is when a defendant is put on notice, i.e., at the time the charging instrument is read.
If that were not the law, then a case like Kirkpatrick could have been decided as a failure of the State to timely join issue on the felony offense, since, absent an objection from the defendant, the State would read the indictment as written, and that indictment would be missing the aggravating element. But we are not aware of a single court decision that applies this late-joining theory to a missing aggravating element of an offense—ever. Much less since Kirkpatrick (and Teal ) were decided.
In Teal , the defendant objected after the jury was empaneled, 230 S.W.3d at 182, and the opinion does not say whether the aggravating culpable mental state was included in the reading of the indictment to the jury. Id. at passim . The Kirkpatrick opinion does not say when the complaint was raised, so it might have been raised for the first time on appeal. See 279 S.W.3d at passim . If, as seems likely, the guilt-stage jury charge in Kirkpatrick correctly included the missing element, then the element would at worst be considered joined at the time the jury charge was read. See Marshall , 185 S.W.3d at 903 ("We observe that appellant had a ‘reasonable time to examine’ the charge of the court before the charge was read to the jury. He was then aware that the trial court proposed to submit an issue of fact that, in his view, had not been pleaded properly, i.e. the enhancement allegations that had not been included within the indictment or timely read to the jury. At that point, appellant should have objected, but he did not.").
Further, if Appellant's theory could be applied to a Kirkpatrick -type situation, it is hard to see how it would not also apply to any missing element, even one needed to allege an offense at all. Kirkpatrick flows from a line of cases beginning with Studer v. State , holding that a missing element in a charging instrument is a defect that must be objected to pretrial. Kirkpatrick does not accord special significance to defects that make a difference in the level of the offense. Quite the contrary, it negates the idea that such a defect should be treated any differently than the more run-of-the-mill missing element necessary to establish an offense at all. Yet we are not aware of a single case applying a late-joining theory to such a missing element since Studer was decided over thirty years ago.
See Studer v. State , 799 S.W.2d 263, 268, 273 (Tex. Crim. App 1990) ("a failure to allege an element of an offense in an indictment or information is a defect of substance" and it is incumbent upon a defendant to object to such a defect before trial). See also Kirkpatrick , 279 S.W.3d at 327, 328 (citing Studer ).
See prior discussion of Kirkpatrick, infra.
And with good reason. Such a theory has the potential to convert all claims of charging-instrument defects—which the constitutional and statutory provisions discussed in Studer meant to foreclose absent a pretrial objection —into failing-to-properly-join-charging-instrument-allegation claims. And doing so would reward late objections. Under Appellant's theory, by not objecting until the punishment stage , he could foreclose the State's ability to use the 0.15 allegation altogether. And applying that logic would allow a defendant to easily evade the holding in Studer by objecting as late as possible and then claiming on appeal that his complaint is not about the omission of an element in the charging instrument but, in fact, about the (unsurprising) failure of the prosecutor to read the element at trial. The law does not require that a defendant be afforded such a windfall.
See Studer , 799 S.W.2d at 268.
Of course, a defendant who silently waits could be rewarded if the State fails to ever mention the 0.15 allegation and the trial court enters a judgment on the lesser offense of Class B misdemeanor DWI. But that is a gamble the defendant takes. We express no view on what would happen if the State purports to rely upon the allegation late but the trial court insists on sentencing on the Class B offense.
Consequently, we hold that when the State read the charging instrument, Appellant was on notice that the State had failed to read an allegation that Appellant believed to be an element of the offense. If the allegation was in fact an element, then the State's reading of the charging instrument was defective, and Appellant could have objected at that time. Having failed to do so, he forfeited any error in connection with the State's failure to read the allegation at the guilt stage of trial.
D. Harm Analysis for Jury Charge Error
1. Jury Charge Error Remains
Even when a defendant has forfeited a defect in the charging instrument for omitting an element, the jury charge must still contain all the required elements of the offense. So, if the jury charge also erroneously omits the element, then there is jury charge error, which must be evaluated under the appropriate standard of harm. The same would logically be true when the State fails to read an aggravating element from the indictment. The absence of the element from the jury charge would be jury charge error, subject to the appropriate standard of harm. We need not address the appropriate standard of harm in this case except to hold that the error is not "structural," so some sort of harm analysis applies. Even applying the standard of harm that favors Appellant the most—that the error be shown to be harmless beyond a reasonable doubt—the error is harmless.
Sanchez v. State , 209 S.W.3d 117, 119-20, 121-22 (Tex. Crim. App. 2006).
Id.
The federal constitution guarantees a right to a jury trial for any fact, other than a prior conviction, that increases the maximum penalty for a crime. Apprendi v. New Jersey , 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). If the error was preserved and the error was constitutional (but not "structural"), then the correct standard of harm is whether the error was harmless beyond a reasonable doubt. Jimenez v. State , 32 S.W.3d 233, 237 (Tex. Crim. App. 2000). If the error was preserved and the error was non-constitutional, then the correct standard of harm is whether the error "was calculated to injure the rights of defendant"—the "some harm" standard articulated in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Jimenez , 32 S.W.3d at 237. If the error was not preserved, then regardless of the nature of the error, the standard of harm is whether "it appears from the record that the defendant has not had a fair and impartial trial"—the Almanza standard of "egregious harm." Id. at 237-39. The right to a jury trial at guilt is a waivable-only right. Oliva v. State , 548 S.W.3d 518, 529 (Tex. Crim. App. 2018). Whether the waivable-only nature of the right extends to the omission of an element from the jury's consideration and, if so, whether that affects the harm analysis under Almanza are issues that we need not address today.
2. Not "Structural"
If an error is "structural," it is exempt from a harm analysis. But only federal constitutional errors can be structural, and most are not.
See Schmutz v. State , 440 S.W.3d 29, 35 (Tex. Crim. App. 2014).
Id.
Ultimately, the State did read the 0.15 allegation—at the punishment stage of trial—and that allegation was found by the trial court to be proven. So, the errors implicated in this case are the defendant's right to have an element of the offense decided at the guilt stage of trial and his right to have that element decided by a jury. The right to have an element decided at the guilt stage of trial is a creature of state statute. "The conceptualization of criminal offenses is mostly left to the states" and "involves balancing and rebalancing over time complex and oft-competing ideas about ‘social policy’ and ‘moral culpability’—about the criminal law's ‘practical effectiveness’ and its ‘ethical foundations.’ " Although due process protects the "right not to be convicted on proof of less than the elements of the crime," that right was not at issue here because Appellant was found to have committed all of the elements of Class A misdemeanor DWI, and he was not subject to the Class A misdemeanor punishment range until he was found to have committed the aggravating element needed to invoke that punishment range. And in Neder v. United States , the Supreme Court held that the denial of the federal constitutional right to a jury trial on a single element of an offense is not structural error.
Kahler v. Kansas , ––– U.S. ––––, 140 S. Ct. 1021, 1028, 206 L.Ed.2d 312 (2020) (brackets and some internal quotation marks omitted) (state could decline to recognize ‘moral’ version of insanity defense and allocate it as a punishment issue).
Taylor v. State , 109 S.W.3d 443, 451 (Tex. Crim. App. 2003).
527 U.S. 1, 8-15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
3. Harmless under "Beyond a Reasonable Doubt" Standard
For preserved constitutional error that is not structural, the correct standard of harm on direct appeal is, ordinarily, that the error is harmless if the court can determine "beyond a reasonable doubt that the error did not contribute to the conviction or punishment." The Supreme Court has held that this harm standard applies to the omission of an "element" of the offense from the jury instructions in violation of the constitutional right to a jury trial. In Neder , the Court held that harmlessness is shown beyond a reasonable doubt when "an omitted element is supported by uncontroverted evidence ... where [the] defendant did not, and apparently could not, bring forth facts contesting the omitted element."
Tex. R. App. P. 44.2(a). See also Neder, supra at 7, 119 S.Ct. 1827.
Neder, supra at 15-16, 119 S.Ct. 1827. As noted earlier, any fact, other than a prior conviction, that increases the maximum punishment is considered an "element" for the purpose of the constitutional right to a jury trial, regardless of whether that fact is an offense element under state law. Apprendi , 530 U.S. at 476, 120 S.Ct. 2348.
The court of appeals concluded that the breath test results did not go uncontested, but its support for that conclusion is, upon close examination, insubstantial. The statute provides that the 0.15 allegation is proven if "an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed." We have observed that "this additional statutory requirement only requires that the State prove that the defendant had an alcohol concentration level of at least 0.15 at the time the analysis was performed."
Ramjattansingh v. State , 548 S.W.3d 540, 548 (Tex. Crim. App. 2018).
Here, the test results themselves were uncontroverted despite the efforts of trial defense counsel to show that Appellant was not intoxicated. It was uncontroverted and incontrovertible that the breath-test machine returned results on two breath samples that were greater than 0.15. In closing argument to the jury, defense counsel contended that the technical supervisor's disparity in testimony in two different proceedings about when the breath test started cast doubt on the reliability of the test, and the court of appeals agreed, finding the technical supervisor's statements to be inconsistent.
Defense counsel's closing argument characterized the disparity as being five minutes, but it appears to have been just one minute. Defense counsel argued that the disparity was between the start time in the ALR affidavit and the first breath result testified to at trial—a five minute disparity, 11:55 p.m. versus midnight. But the technical supervisor testified at trial that the start time for the test was not the first breath result but the operational system check—which, when compared to the ALR affidavit, produces only a one minute disparity, 11:55 p.m. versus 11:56 p.m.
But all the disparity shows is that the technical supervisor gave slightly incorrect information in the ALR affidavit about when the breath test began—the witness's error in recalling a time stamp from the machine. This slight error in recalling the time stamp does not show anything wrong with how the test itself was conducted, and in fact, the technical supervisor testified that the test was valid and had not been subjected to radio interference. And since the technical supervisor did not conduct the breath test, her inaccuracy in the ALR affidavit cannot possibly reflect on the competence of the technician who administered the test or the test results themselves. Because no flaws in the lab procedures were shown, the 0.15 allegation was in fact uncontroverted.
Trial counsel and the court of appeals also suggested that the 0.15 analysis was controverted because Appellant's speech and mannerisms seemed inconsistent with being "highly intoxicated." This was also not evidence that controverted the test results. Breath testing conducted according to proper procedures reflected results significantly over .15 (0.194 and 0.205). Observational evidence that the defendant's speech and mannerisms seemed inconsistent with being highly intoxicated is simply not controverting evidence with respect to the test results. With no evidence that the Intoxilyzer test itself was flawed, it is uncontroverted that "an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed," as required by the statute.
See supra at n.55 and accompanying text. Even if observational evidence could rebut a breath-test result taken in accordance with proper procedures, the observational evidence was not particularly persuasive in this case. The technician who conducted the breath test and watched the field-sobriety tests merely agreed that Appellant's speech and mannerisms were inconsistent with someone "presumed" to be highly intoxicated. He also agreed that everyone shows intoxication differently and that a person could be intoxicated and speak normally. Moreover, the technical supervisor testified that someone who produced a 0.20 breath result could show the variety of impairments posited by defense counsel but that everyone showed intoxication differently and that she could not say that any of those impairments had to be associated with 0.20 breath result. She also testified about the concept of tolerance, which would allow a habitually heavy drinker to not show symptoms that might be associated with intoxication in an average person. And Appellant failing two field-sobriety tests—the one-leg-stand and walk-and-turn tests—seriously undermines any claim that he was not highly intoxicated. In any event, the legislature's framing of the 0.15 aggravating element appears designed to avoid the consideration of observational evidence, perhaps for the very reasons supplied by the expert testimony in this case—that observational evidence is not particularly probative because people show intoxication differently and tolerance can allow an intoxicated person to mask symptoms.
Because the record shows that the test results were uncontroverted and indicates that the defense could not in fact controvert those results, any error in failing to submit the 0.15 allegation to the jury was harmless beyond a reasonable doubt.
We reverse the judgment of the court of appeals and remand the case to that court to address Appellant's remaining point of error.
Richardson, J., filed a concurring opinion in which Hervey and Newell, JJ., joined.
Newell, J., filed a concurring opinion in which Hervey, Richardson and McClure, JJ., joined.
Yeary, J. filed a dissenting opinion in which Slaughter, J., joined.
Walker, J. filed a dissenting opinion in which Yeary, J., joined.
CONCURRING OPINION
Richardson, J., filed a concurring opinion, in which Hervey and Newell, JJ., joined.
I join this Court's majority opinion but write to point out the obvious – even in light of the thousands of DWI arrests annually in this State (in some years almost a million), to date we have yet to definitively state whether the .15 allegation in a DWI is an enhancement or an element of the offense. Sometimes, as in this case, the lawyers agree on it, but ultimately their agreement is not binding on the rest of the state bar.
Lawyers must come away from reading the variety of majority, concurring, and dissenting opinions and wonder why the Court doesn't just say whether it is an element or an enhancement. Perhaps it is time we rip the band aid off and just say it. Doing so would save us the trouble of repeatedly analyzing these cases under a variety of complicated legal theories. It would also provide clarity to trial judges, defense lawyers, and prosecutors. Such a decision would resolve the following dilemmas: (1) when and how a party should object; (2) whether the prosecution should refrain from mentioning anything about a BAC in excess of .15; (3) whether the prosecution should wait until the punishment phase because they think .15 is an enhancement; (4) whether defense attorneys – thinking it's an element – should remain silent in the face of the State's failure to prove a critical element of their case; and (5) whether defense attorneys, to their clients’ detriment, should remind the trial court and the State that perhaps they should include that in their case-in-chief. All of these issues facing the State and the defense bar could be resolved by simply just saying whether the BAC .15 is an element or an enhancement. Yet here we are. As such, I join this Court's majority opinion.
Newell, J., filed a concurring opinion in which Hervey, Richardson and McClure, JJ., joined.
As I read the Court's opinion, the Court holds that the State did not "abandon" the "0.15 alcohol concentration" allegation in the information because the State did not take any affirmative action to do so. The other major issues—whether the "0.15 alcohol concentration" allegation is an element or an enhancement and what standard to apply when assessing the harm of having the trial court instead of a jury make a fact-finding at punishment—have been assumed away in an effort to reach a more focused and unified opinion. While these issues will have to be decided in a later case, I join this aspect of the Court's opinion in the spirit in which these decisions are made. I agree that if the allegation was an element, the failure to have a jury decide that aspect of the case was ultimately harmless.
But at some point, we need to decide whether the "0.15 alcohol concentration" allegation is an element or an enhancement. Failing to do so puts practitioners in a real bind. The State doesn't know whether to read the allegation to the jury during guilt, and the defense doesn't know whether to object to a lack of pronouncement of the allegation. And how are the parties to advise a trial court when they regard the allegation as an element and the trial court regards it as an enhancement? Leaving the issue undecided will only result in more confusion and conflicting holdings from the courts of appeals.
In this case, the State seems to have regarded the "0.15 alcohol concentration" allegation as an enhancement, at least at trial, while the defense regarded it as an element. I disagree that there was any surprise that the State was going to try to prove that Appellant's blood alcohol concentration was at least "0.15." The State alleged in the information not only the offense of driving while intoxicated, but also the higher amount of alcohol concentration set out in a separate paragraph including the wording "it is further alleged" commonly associated with sentence enhancements. Appellant was well aware of the breath test results, having filed objections to them prior to trial. Appellant chose to affirmatively waive his right to a jury trial on the issue of punishment prior to any alleged abandonment of the "0.15 alcohol concentration." And the breath test results were challenged primarily on the basis of an improper predicate, not that the results were scientifically reliable up to the "0.08" amount, but not up to the "0.15" amount. Neither party explicitly stated whether they regarded the allegation as an element or an enhancement until the punishment phase, but the parties at trial knew the score. If Appellant was challenging the difference between a "0.08 alcohol concentration" and a "0.15 alcohol concentration" he would have done so at the sentencing hearing, either as part of his objection or after it.
Nevertheless, if we had already decided that the "0.15 alcohol concentration" allegation was an enhancement, this case would be much easier. And there are strong arguments for that position. Generally, our legislature's use of the phrase "if it is shown on the trial of ..." preceding an evidentiary requirement indicates a punishment enhancement. We noted in Oliva v. State , that an exception to this rule is the use of a prior DWI conviction to enhance a driving while intoxicated offense to a third degree felony. We reasoned that, consistent with our previous case law, a jurisdictional enhancement should be treated as an element of the offense because jurisdictional prior convictions are necessary to give a felony court jurisdiction. And we noted that, in the context of a non-jurisdictional prior conviction, there are a number of factors, in addition to this statutory language, that suggest that the use of the phrase "if it is shown on the trial of" is a description of a punishment enhancement rather than an element of an offense.
Oliva v. State , 548 S.W.3d 518, 527 (Tex. Crim. App. 2018).
The concurring opinion relies on Wilson v. State , 772 S.W.2d 118, 123 (Tex. Crim. App. 1989), to argue that the 0.15 BAC aggravating fact operates as a punishment enhancer rather than an element of a greater-inclusive offense. Concurring Opinion at 901-02. I disagree. The language of the subsection of the prior DWI statute that was at issue in Wilson is quite distinguishable. Wilson , 772 S.W.2d at 121 & APPENDIX at 124. Subsection (b) of the DWI statute operable at that time defined the base offense, using the language: "[a] person commits an offense if ...". Each of the next three subsections, (c), (d), and (e), appearing thereafter declared that "the offense is punishable by" a certain range of punishment. And the provision specifically in issue in Wilson —Subsection (f)—operated to raise the mandatory minimum punishment if, "as a direct result of the offense another person suffered serious bodily injury[.]" Id. at 124. It seems to me that these ensuing subsections defined the ranges of punishment for a single base offense; they did not define discrete offenses. Subsection (d) of Section 49.04—at issue in this case—in contrast, prescribes that "the offense is" a Class A misdemeanor when the extra element of a 0.15 BAC is added to the mix.
In the context of error preservation, we explained that:
Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence "must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question."
Martinez v. State , 91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002) (quoting 1 Stephen Goode , et al. , Texas Practice : Guide to the Texas Rules of Evidence : Civil and Criminal , § 103.2, at 14 (2d ed.1993)).
Id. at 528.
Tex. Code Crim. Proc. Ann. 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.").
Id.
See id. at 527–28. Contrary to the dissent's position in Oliva , we should hold that courts can only be sure that statutory terms following the phrase "a person commits an offense ..." are elements of an offense. See Wilson v. State , 722 S.W.2d 118, 121–22 (Tex. Crim. App. 1989) ("This relatively simple statutory scheme is duplicated throughout the penal code and the Controlled Substances Act. That is, each time conduct is identified with the preliminary phrase ‘A person commits an offense if ...,’ the attendant prohibition is indeed a separate and distinct offense as opposed to a punishment enhancing measure."). However, a statutory requirement that would otherwise appear to be a sentencing factor serves an additional purpose, such as establishing jurisdiction in a felony DWI. Only then should the Court say that the extra statutory requirement can be construed as an "element" of an offense. Oliva , 548 S.W.3d at 534.
Unlike a jurisdictional prior conviction, a defendant's alcohol concentration level is not an element of driving while intoxicated, it is a description of proof needed to establish "intoxication." In State v. Barbernell , we explicitly rejected prior holdings that the different statutory definitions of intoxication are discrete elements of the offense of driving while intoxicated. We had previously held in State v. Carter that the different definitions of "intoxication" described two different driving while intoxicated offenses, a "loss of faculties" offense and a "per se offense." But we recognized in Barbernell that our reasoning in Carter was flawed. We held instead that "intoxication" is an element of the offense of driving while intoxicated, and the definitions of intoxication set forth alternative ways of proving intoxication rather than different ways of committing the offense.
State v. Barbernell , 257 S.W.3d 248, 256 (Tex. Crim. App. 2008).
Id.
State v. Carter , 810 S.W.2d 197, 200 (Tex. Crim. App. 1991).
Barbernell , 257 S.W.3d at 255 ("A careful review of our decision in Carter reveals that the Court's analysis was incorrect.").
Id. at 255–56.
The "0.15 alcohol concentration" provision is not jurisdictional like the prior convictions in a felony DWI. Rather, it is an enhancement to the element of intoxication. The State need not even plead any alcohol concentration in a misdemeanor information to set out the offense of driving while intoxicated. Treating the "0.15 alcohol concentration" subsection as an element of the offense would resurrect State v. Carter and flies in the face of the Court's more recent determination in Barbernell that the different ways of proving "intoxication" are not elements of the offense of DWI.
See Barbernell , 257 S.W.3d at 256 ("[T]he definitions of ‘intoxicated’ are purely evidentiary matters; therefore they do not need to be alleged in a charging instrument to provide a defendant with sufficient notice.").
See id.
In that regard, the "0.15 alcohol concentration" provision is more akin to the "serious bodily injury" enhancement in Wilson v. State . In that case, we held that a showing of "serious bodily injury" during the commission of a driving while intoxicated offense amounted to a punishment enhancement rather than an element of DWI. The "0.15 alcohol concentration" provision works the same way. It is layered on top of a showing that a defendant drove while intoxicated, but it is not necessary to show a particular alcohol concentration to establish the commission of a DWI.
Wilson , 722 S.W.2d at 118.
Id. at 120.
If the Court were to treat the "0.15 alcohol concentration" provision as an enhancement rather than an element, it would effectively resolve any future claims similar to the one presented in this case. The State's failure to read the enhancement provision at the outset of the guilt stage of the trial would not amount to error, and the defendant's punishment election would result in a waiver of his Apprendi claim. Nothing in the United States Supreme Court's Apprendi jurisprudence establishes when a jury must determine a fact that elevates the maximum punishment for an offense. Further, the Supreme Court has recognized that a defendant can consent to a trial court's determination of an enhancing fact without running afoul of due process. A defendant's choice to have a judge determine his sentence would also establish whether he could complain about the lack of a jury finding on a sentencing fact that elevates the range of punishment.
See , e.g. , Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Blakely v. Washington , 542 U.S. 296, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ("[N]othing prevents a defendant from waiving his Apprendi rights ... Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial.").
See Barrow v. State , 207 S.W.3d 377, 379 (Tex. Crim. App. 2006) ("[T]he Apprendi line of cases requires that, in any case in which the defendant has elected to exercise his Sixth Amendment right to a jury trial , any discrete finding of fact that has the effect of increasing the maximum punishment that can be assessed must be made by the jury, even if that factfinding occurs as part of the punishment determination.") (emphasis added); Dix & Schmolesky, 43A Tex. Prac., Crim. Practice and Procedure § 46:163 (3d Ed.) ("[I]n Texas, unlike in New Jersey and most other states, the availability at the option of the defendant of jury sentencing means that the Sixth Amendment right to a jury determination of any issue that increases the potential penalty is bypassed only by the choice of the defendant.").
But on the appeal of this case, the State and the defense have regarded the "0.15 alcohol concentration" provision as an element of the offense. While we are not bound by those concessions, the Court's decision to assume that the enhancement allegation at issue was actually an element of the offense makes sense in this context. We have not yet determined that the "0.15 alcohol concentration" allegation is an enhancement rather than an element, so it would be unfair to apply that holding to the parties in this case. The more prudent course of action is the one the Court takes, to assume the existence of error at punishment and review the harm from that error under the least forgiving standard.
See Oliva , 548 S.W.3d at 520 ("We, of course, are not bound by any agreement or concessions by the parties on an issue of law.").
Even under that harm-standard, Appellant still cannot prevail on appeal because there was nothing in the record to suggest that the difference between an 0.15 alcohol concentration and an 0.08 alcohol concentration was an issue in this case. To the extent that Appellant contested the breath test, it was to suggest that the breath test never established intoxication. He did not present evidence or argue that his blood alcohol concentration was only above 0.08, but below 0.15. When given the chance to do so at punishment, albeit to the trial court rather than the jury, he did not make the argument. Consequently, I agree with the Court that even if we assume the level of alcohol concentration was an element of the offense, the failure to allow a jury rather than the judge to determine whether there was sufficient evidence to prove that it was at least 0.15 did not contribute to the conviction or punishment.
As for Appellant's reliance upon the dissenting opinion in Niles v. State, it is well-intentioned, but nonetheless misguided. Niles only stands for the proposition that the failure to have a jury find a particular fact necessary to a particular punishment range is subject to a harm analysis, as is any other jury charge error. The Court based its holding upon binding United States Supreme Court precedent, and, to the extent that the Supreme Court dissenters within that precedent make persuasive arguments, the United States Supreme Court considered those arguments and rejected them in Neder v. United States, Washington v. Recuenco, and Alleyne v. United States . The United States Supreme Court has held that the type of error in Niles is not structural error; rather, it is subject to a harm analysis. Niles follows that precedent, and it is neither wrongly decided, nor has it proven unworkable.
Niles v. State , 555 S.W.3d 562, 569–73 (Tex. Crim. App. 2018).
527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed. 2d 35 (1999).
548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006).
570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
See , e.g. , Howlett By and Through Howlett v. Rose , 496 U.S. 356, 371, 110 S.Ct. 2430, 2440, 110 L.Ed.2d 332 (1990) ("... The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source."); State v. Guzman , 959 S.W.2d 631, 633 (Tex. Crim. App. 1998) ("When we decide cases involving the United States constitution, we are bound by United States Supreme Court case law interpreting it [.]"); see also Apprendi , 530 U.S. at 476–77, 120 S.Ct. 2348 ("At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Amdt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Amdt. 6.").
See Niles , 555 S.W.3d at 571–72 (citing Recuenco , 548 U.S. at 218, 126 S.Ct. 2546 ; Neder , 527 U.S. at 8, 119 S.Ct. 1827 ).
See Paulson v. State , 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).
Indeed, if we are looking for precedent to blame, the focus on Niles obscures a different case that is both poorly reasoned and unworkable. And, as luck would have it, the case is the root cause of many problems associated with evaluating jury charge error on appeal. The real culprit behind the problems wrongly attributed to Niles is Almanza v. State.
Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
We were asked in Almanza v. State to determine what standards for jury charge harm were set out in Article 36.19 of the Code of Criminal Procedure. But in doing so, the Court took the extra step of tying those harm standards to the existence or non-existence of an objection. The text of Article 36.19 does not tie the harm standards in any way to the existence or non-existence of an objection. Indeed, I can think of no other area of law in which a party's preservation of error dictates the character of the error at issue such that it changes the applicable standard of harm. The purpose of preservation of error is to alert a trial court and opposing party to the error at a time when it can be fixed. Determining whether error is preserved isn't a determination that error exists or the character of any alleged error. Instead, reviewing courts rely upon the character of the right at issue to decide whether a complaint about the violation of that right must be preserved.
Tex. Code Crim. Proc. art. 36.19 ("Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.").
Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ("The two main purposes of requiring a specific objection are to inform the trial judge of the basis of the objection so that he has an opportunity to rule on it and to allow opposing counsel to remedy the error.").
Posey v. State , 966 S.W.3d 57, 61 (Tex. Crim. App. 1998) ("When, under general rules of procedural default, an appellate court holds a defendant has procedurally defaulted a particular claim by not timely raising it in the trial court, the appellate court does not concede "error" has occurred. In these situations, all the appellate court is saying is that it will not address the merits of a claim raised for the first time on appeal.").
Marin v. State , 851 S.W.3d 275, 279 (Tex. Crim. App. 1993) (setting out three categories of "rights" to explain when preservation of error is required to complain about a violation on appeal).
Unfortunately, our decision in Almanza gets this backwards. When we interpreted Article 36.19, we held that both the harm standard for ordinary reversible error and the harm standard for fundamental error were contained within the statutory terms. However, we went on to reason that because "ordinary reversible error" requires an objection before it can be considered on appeal, the mere existence of an objection determined the standard for harm. But this conclusion does not logically follow from the text of the statute.
Almanza , 686 S.W.2d at 171 ("If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error. [...] On the other hand, if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’—in short ‘egregious harm.’ ").
Id. at 171 ("[W]e have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error.").
See id.
The problems with tying the standard of harm to the existence or non-existence of an objection should be obvious. It necessarily leads to situations in which a constitutional violation is held to a more forgiving standard of harm by virtue of a defendant's lack of objection. Conversely, an objection to jury charge error could result in holding a mere statutory violation to the standard of constitutional error simply because trial counsel spoke up at the charge conference. The proper analysis should keep these two inquiries separate. Reviewing courts should determine the character of the error and whether that error requires an objection in the trial court in order for a party to raise a complaint about that error on appeal. From that determination, a reviewing court can determine which standard of harm applies to the type of error at issue. But at no point would the preservation of a particular complaint determine the character of the error at issue and, by extension, the standard of harm associated with that error.
See Almanza , 686 S.W.2d at 171 ("[I]f no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he "has not had a fair and impartial trial"—in short ‘egregious harm.’ ").
Id. ("If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error.").
Again, despite the gnashing of teeth and rending of garments, Niles only recognized, consistent with binding United States Supreme Court precedent, that the lack of a jury finding on a particular fact question is subject to a harm analysis. And, given that Apprendi error dealing with the lack of such a necessary finding is subject to a defendant's consent, Niles is consistent with our precedent that a waivable only right can be raised for the first time on appeal even without an objection. But, to the extent that the complaint about Niles is that it would require a defendant to object at trial to secure a particular type of harm analysis on appeal, Niles does not create the problem, Almanza does. If there is a case to dispatch, it's Almanza .
Niles , 555 S.W.3d at 573.
See Marin , 851 S.W.2d at 280. (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").
With these thoughts, I join the Court's opinion.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion in which Slaughter, J., joined.
Once again, as in Niles v. State , 555 S.W.3d 562 (Tex. Crim. App. 2018), this Court puts the onus on a defendant to object on the State's behalf when the jury charge fails to require the jury to find an essential element of a greater-inclusive offense, thus resulting in the defendant's de facto conviction for a lesser-included offense. The Court accomplishes this by once again, as in Niles , converting Appellant's actual issue on appeal into a complaint about the jury charge and then finding a lack of harm to Appellant stemming from this manufactured jury-charge error. But if there was truly jury-charge error in the case, it was only error from the State's perspective, not Appellant's. And the State forfeited any such error by failing to raise it in a timely manner when the guilt phase instructions were presented to the jury. As in Niles , I respectfully dissent.
SUBSECTION 49.04(d) OF THE PENAL CODE: ELEMENTAL?
Appellant was charged with a first-time driving-while-intoxicated offense, but it was also alleged that he had a breath-alcohol concentration (BAC) of greater than 0.15, under Subsection (d) of the DWI statute. TEX. PENAL CODE § 49.04(d). The Court today assumes, without ultimately deciding, that this aggravating fact is an element of a Class A misdemeanor DWI offense rather than a punishment-enhancement provision of a base Class B misdemeanor DWI offense, such that it must be proven at the guilt phase of trial. Majority Opinion at 890-91. So far, so good.
But I would go beyond merely assuming this to be so. Subsection (d) bears at least three of the hallmarks of an element of a discrete offense that the Court recognized in Oliva v. State , 548 S.W.3d 518 (Tex. Crim. App. 2018). First, as the Court today acknowledges, it constitutes a circumstance of the offense on trial, which the Court said in Oliva "would be a factor in favor of construing the statutory aggravating fact as an element of the offense." Majority Opinion at 890 & n.16 (citing Oliva , 548 S.W.3d at 530 ). Second, Subsection (d) says that when the defendant's BAC exceeds 0.15, "the offense is a Class A misdemeanor"—not merely that it should be "punished" as a Class A misdemeanor. Oliva regarded this as a relevant (albeit not always determinative) factor in deciding whether an aggravating fact is elemental. Oliva , 548 S.W.3d at 526, 531. In my view, it militates in favor of the conclusion that the 0.15 BAC aggravator is elemental in this case, particularly in view of the third relevant consideration: that Subsection (d) appears in the same section of the Penal Code that defines the base offense of driving while intoxicated, rather than in a separate section devoted more generally to the enhancement of punishment, such as Section 49.09, which is enumerated "Enhanced Offenses and Penalties." Thus, it is not "separated from provisions that more obviously prescribe elements of an offense." Oliva , 548 S.W.3d at 531.
Not all of the Oliva considerations militate this way. It is true that Subsection (d) begins with the phrase, "[i]f it is shown on the trial of an offense under this section ...," which Oliva characterized as more typically the hallmark of a punishment-enhancement provision than an element. See id. at 527 (noting that this phrase is "strongly associated with punishment enhancements"); Holoman v. State , 620 S.W.3d 141, 145 (Tex. Crim. App. 2021) (noting Oliva ’s observation that this phrase more typically identifies punishment-phase issues then elements). Nevertheless, on balance, I agree with the court of appeals’ conclusion that Subsection (d) of Section 49.04 defines an element of the Class A misdemeanor offense of driving while intoxicated.1 Van Do v. State , 629 S.W.3d 307, 312-13, No. 14-18-00600-CR (Tex. App.—Houston [14th Dist.] Apr. 2, 2020). Thus, it must be proven up at the guilt phase of trial. It is not merely an aggravating fact that renders a base-Class B misdemeanor punishable as if it were a Class A misdemeanor, but which may be proven at the punishment phase of trial.
DID THE STATE EVER JOIN ISSUE?
The Court also assumes that this case is controlled by Niles —that is to say, the Court assumes that Niles controls unless there is merit to Appellant's argument that his case is distinguishable because, unlike in Niles , the State here failed even to join issue on the element that served to elevate the offense to a higher level. Majority Opinion at 890-91. Here, the State did not include the 0.15 BAC element when it arraigned Appellant before the jury at the outset of the guilt phase of trial. The Court expends the bulk of its analytical energies rejecting the merits of this purported distinction. Id. at 890-96, 119 S.Ct. 1827.
Essentially what the Court says, as I understand it, is that when the State is "late" in joining issue, that constitutes trial error that is subject to a sort of curative-harm analysis. Id. at 891, 119 S.Ct. 1827. When the State joins issue "late," but then reintroduces all of its relevant evidence after it has belatedly joined issue, the error is "cured." Id. at 891-92, 119 S.Ct. 1827. Moreover, the error is subject to principles of procedural default, so that the defendant must complain that the State joined issue tardily if he ever expects to complain about the error on appeal. Id. That is all very well and good when the State's failure to join issue on an essential element is merely "late" in coming at the guilt phase of trial.
But here, the State's failure to join issue was not merely "late." It came (if it can be said to have come at all) only after the guilt phase of trial was over and the jury had already convicted Appellant of nothing more than the lesser-included offense of Class B-misdemeanor first-time DWI. So far as I know, we have never said that the State may wait to join issue on an essential element of the offense until after the jury has returned its verdict at the guilt phase of trial and the State has proceeded to prosecute its punishment case! See Holoman , 620 S.W.3d at 145 (affirming the court of appeals’ judgment modifying the trial court's judgment to show conviction only of the lesser-included offense when the State delayed proving an element of the greater-inclusive offense until the punishment phase of trial). I do not think we are still talking about mere guilt-phase trial error under these circumstances.
In any event, I do not believe the result of this case should turn on the question of when (if ever) the State joined issue on the 0.15 BAC element. As far as I am concerned, even if the State somehow timely joined issue at the guilt phase of trial, it effectively abandoned the BAC element (and thus, its right to a conviction on the greater-inclusive offense) when it failed to object to its omission from the jury charge at the guilt phase of trial. In other words, I dissent to the Court's resolution of this case on the same basis that I dissented in Niles itself, which I would overrule with dispatch.
IS THIS CASE REALLY ABOUT JURY CHARGE ERROR?
Appellant did not argue that there was jury charge error at the guilt phase of trial in his brief on direct appeal. He argued that the trial court erred to enter a judgment of conviction against him for the Class A misdemeanor offense when the jury's verdict authorized conviction for no greater than the Class B misdemeanor offense. The court of appeals only converted that into a jury-charge issue essentially because this Court had done so under comparable circumstances—over my vociferous dissent—in Niles . Van Do , 2020 WL 1619995, at *5. But Appellant had no cause to object to the trial court's guilt-phase instruction, which only authorized conviction for the lesser-included offense. If the State desired to avoid an appellate claim that the resulting jury verdict did not authorize assessment of a one-year jail term, and that such a term of punishment was illegal, it had an obligation itself to object to the omission in the jury charge. See Niles , 555 S.W.3d at 576–77 (Yeary, J., dissenting) ("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. * * * It seems anomalous to me ... 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. ").
That the State did not object at trial only reflects that it misjudged whether the 0.15 BAC aggravator was an element of the offense or simply a punishment issue. The Court grievously errs in continuing to hold—as it did in Niles —that it is Appellant who must suffer the consequence of such a manifest misjudgment on the State's part—here, a deprivation of Appellant's Sixth Amendment right to a jury finding on an essential element of the greater-inclusive offense. To compound its error, the Court further fails to regard such an error (if there even is one) as structural—if not for federal constitutional purposes, then at least as a matter of appellate review under our own state constitution. See id. at 577–78 & n.13 (Yeary, J., dissenting) (quoting the late Justice Scalia's dissenting opinion in Neder v. United States , 527 U.S. 1, 34, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), for the proposition that "[h]armless-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.").
We should treat Appellant's appellate claim for what it purports on its face to be and for what it truly is: a claim that his one-year jail sentence was illegal, since he was convicted only of a Class B misdemeanor, subject to no greater penalty than "confinement in jail for a term not to exceed 180 days[.]" TEX. PENAL CODE § 12.22(2). By that reckoning, the court of appeals resolved the case in exactly the right way when it modified the trial court's judgment to reflect conviction for the Class B misdemeanor and remanded the case to the trial court for a new punishment proceeding. Van Do , 2020 WL 1619995, at *8. Though I would not endorse its analysis—misguided as it was by this Court's opinion in Niles —I would nevertheless affirm the court of appeals’ ultimate judgment and disposition of the case. Because the Court does not, I respectfully dissent.
DISSENTING OPINION
Walker, J., filed a dissenting opinion, in which Yeary, J., joined.
Appellant was charged with Class A Driving While Intoxicated, but the jury was not asked whether he was guilty of Class A DWI. Instead, the lesser-included offense of Class B DWI was submitted to the jury. After the jury found Appellant guilty of Class B DWI, the trial court nevertheless entered a judgment of conviction for Class A DWI and sentenced him to the maximum of one year. Finding constitutional harm, the court of appeals reversed, reformed the judgment to Class B, and remanded for a new punishment proceeding.
This Court today finds that jury charge error occurred; the error was "harmless beyond a reasonable doubt" because had the jury been properly charged, Appellant would have still been convicted and sentenced for Class A DWI; and therefore the court of appeals's determination of harm should be reversed. But that analysis for harm is from the standpoint of the State, and that specific harm relates to a different error. As I see it, there are two separate harms from two separate errors, and the Court's harmless error determination is from the standpoint of the wrong party. I respectfully dissent.
I — Harm Should be Assessed from the Standpoint of the Appellant
Under Rule of Appellate Procedure 44.2 :
If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
Tex. R. App. P. 44.2(a). Under harmless error review, therefore, a reviewing court is required to determine whether the error contributed to the conviction or punishment from the perspective of the appellant.
Thus, an appellate court must evaluate harm from the appellant's standpoint. And, where one of the intermediate courts of appeals finds that a trial court error caused reversible harm to the appellant, this Court on appeal must also review that harm analysis from the standpoint of the appellant and not of the appellee.
II — Two Different Errors, Two Different Harms
In Appellant's case, there are two distinct errors. The first error was the inadvertent submission of the lesser-included offense of Class B DWI due to the State's mistaken but good faith belief that Class A DWI's element of 0.15 blood alcohol concentration was a punishment issue and not an element of the offense. The harm from the first error was the jury's return of a guilty verdict for Class B DWI and consequently the loss of the Class A prosecution.
If anyone was going to appeal this error, it was going to be the State. This harm fell on the State, and it was up to the State to object to the incorrect jury charge. The State did not. "Party responsibility" could not belong to Appellant,1 because for him the error was in his favor, and, even if he appealed the issue, he could not show harm from the error because he stood to benefit from it. And, frankly, he had no reason to object to the submission of the lesser-included offense nor would he have reason to appeal it.
The second error was the trial court's judgment of conviction and one year sentence for Class A DWI, where the jury returned a verdict of guilty for Class B DWI and was never asked to determine whether all of the elements of Class A DWI were met and whether Appellant was guilty of Class A DWI. See Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The harm from the second error was the conviction and sentence for a Class A misdemeanor even though the jury returned a verdict of guilty for only a Class B.
If anyone was going to appeal this error, it would be Appellant and "party responsibility" for the error belongs to him. This harm fell on Appellant, and it was up to Appellant to object to the trial court's action. He did. "Party responsibility" could not belong to the State, because for the State the error was in its favor, and, even if the State appealed the issue, it could not show harm because it got what it originally wanted. Viewed from the State's perspective, this error is harmless. And, frankly, the State had no reason to object because, as this Court points out, had the jury been properly instructed and received the corresponding evidence, Appellant would have been convicted and sentenced for Class A DWI.
The State did not appeal the submission of the incorrect charge.2 Appellant did appeal the trial court's Class A conviction and sentence on a Class B jury verdict. The question before us should be focused on the issue that was preserved and raised on appeal: the Class A conviction and sentence on a Class B jury verdict. This was Appellant's issue, and harm should be evaluated from his standpoint.
III — Error was Not Harmless
The Court decides that the error was harmless. As discussed above, the State had inadvertently lost its ability to get a conviction and sentence for Class A DWI. As a result of the error we should be focusing on—the trial court's judgment of conviction for a Class A on a Class B jury verdict—the State was made whole and got what it originally wanted. Harmless, if you are the State.
For Appellant, however, who actually preserved the error and raised it on appeal, it was harmful. The jury found Appellant guilty of a Class B misdemeanor, which is punishable by a fine not to exceed $2,000, confinement in jail not to exceed 180 days, or both. TEX. PENAL CODE Ann. § 12.22. Yet the trial court entered a judgment of conviction for a Class A misdemeanor, which is punishable by a fine not to exceed $4,000, confinement not to exceed one year, or both. Id. § 12.21. Had Appellant been sentenced to 180 days or less, within the range of a Class B offense, I would be more inclined to agree that the error was harmless because he would have been subjected to the same punishment he would have received had the trial court not committed the error. But that is not what happened. Appellant was sentenced to one year, which is the maximum for a Class A misdemeanor, and over twice the maximum for a Class B. See id. §§ 12.21, 12.22. This is harm.
IV — Conclusion
In conclusion, the Court focuses on the wrong error and evaluates harm from the wrong party. The error we should be focusing on is the one that was preserved and appealed—the trial court's entry of a judgment of conviction and sentence for a Class A misdemeanor where the jury found Appellant guilty of only a Class B. The Court's harmless error analysis is correct when viewing harm from the State's standpoint, but it is harmful from Appellant's. Looking from the standpoint of the correct party—Appellant—the trial court's judgment of conviction for Class A DWI and sentence of one year, where the maximum for a Class B is six months, is unquestionably harmful. The court of appeals correctly found harm. I cannot join the Court's decision to reverse, and I respectfully dissent.