There appears to be an increasing judicial feud underway between the Texas Court of Criminal Appeals (TCCA) and the lower appellate courts throughout the state. The lower appeal courts are finding constitutional errors in criminal trials, attaching harm to them, and reversing the convictions. The State then applies for, and secures, discretionary review before the TCCA, the highest appellate court in Texas for criminal cases, which rather summarily reinstates the criminal conviction and sentencing, finding that while there was a constitutional error, no harm resulted.


Failure to Elect of Particular Act


Take, for example, the case of Richard Charles Owings, Jr., whose was convicted of aggravated sexual assault of a child and sentenced to 30 years in prison. The law in Texas in clear on the following point: when one particular act of sexual assault is alleged in an indictment, and the State proffers evidence during the trial showing more than one incident of sexual assault, the trial court is required to compel the State to “elect” which particular act it would rely on for conviction. The failure of the trial court to compel this election is a constitutional error.


The State presented evidence of multiple child sexual assaults in Ownings’ case. The defense sought to compel the State to elect, but the trial court refused the request. That was a constitutional error. Last year the First Court of Appeals found that the trial court’s failure to compel the State to elect which specific act of sexual assault it was relying on for conviction was a “harmful” constitutional error. The Court of Appeals, Houston(1st) reversed Owings’ conviction and sentence.


Constitutional Error and Harmless Error


The State applied for, and secured, discretionary review before the TCCA, arguing that even if the trial court committed a constitutional error, it was a “harmless” error.


In a November 1, 2017 decision, the TCCA agreed with the appeals court that the trial court had committed constitutional error but accepted the State’s argument that the error was harmless. The court reversed the appeals court’s new trial order and reinstated Owings’ conviction and 30-year sentence. The TCCA said that a constitutional error requires a reversal of conviction “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”


The TCCA has held that a harm determination in a failure to elect case by analyzing the error in context with the following four purposes for having the election requirement:


  • Protect the defendant from the State’s use of extraneous offenses;
  • Minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convicted the jury the defendant was guilty;
  • To ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred; and
  • To give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.


In effect, the TCCA held that because there were so many acts of sexual abuse against one child in a similar manner occurring over a period of time it was more than reasonable to conclude the jury had unanimously concurred that the defendant had committed one of the acts in a manner set forth in the indictment.


Jury Bias


Then there is the case of Rene Gutierrez who was indicted on three counts of aggravated assault, one count of assault on a public servant, and one count of harassment of a public servant in connection with a barroom altercation. A jury convicted him on two of the aggravated assault counts and the one count of harassment of a public servant. He was sentenced to 20 years in prison.


After the jury was sworn in and the first witness was called to testify, a police officer, one of the jurors informed the judge that he knew the witness. The jury was excused, and both parties were allowed to question the juror. The judge ruled the juror was not biased and the trial could resume with the twelve seated jurors. The judge, however, gave the parties an option of having the case tried by eleven jurors. Defense counsel said he wanted to proceed with the eleven jurors and that if the suspect juror was not removed, he would move for a mistrial. The State agreed to the defense’s request.


Following conviction, Gutierrez filed a timely motion for a new trial alleging ineffective assistance of counsel. He argued that defense counsel advised him to proceed with the eleven seated jurors, and he said that but for that erroneous advice, he would have moved for a mistrial and insisted upon a 12-person jury. The trial court agreed, granting the motion and ordering a new trial.


Appeals Court Overturns Conviction, Tex Court of Criminal Appeals Reinstates


The State appealed to the Thirteenth Court of Appeals which agreed with the trial court, finding that it was likely that a mistrial would have been granted had defense counsel requested one.


The State sought, and secured, discretionary review before the TCCA which, on October 18, 2017, reversed the court of appeals and reinstated Gutierrez’s conviction and sentence. The TCCA concluded:


“This record is subject to conflicting, but reasonable, interpretations. While one judge may have found that the juror was not actually biased, another may have found that the juror was biased. For this reason, Gutierrez cannot prove that the trial court would have erred if it had denied a request for a mistrial because the record does not show that the only reasonable interpretation of the evidence is that the juror was biased.”


That’s a seriously flawed conclusion. The fact that the trial court granted the post-conviction motion for a new trial clearly indicates that it believed defense counsel should have moved for a mistrial that the judge would have granted.


Courts Disagree, Artwork or Porn?


And there is the case of Mark Bolles who was convicted of possession of child pornography. We posted a previous piece about the Bolles case last month. Bolles was found guilty for possession of child pornography based on two images discovered on his cell phone of a classic piece of art work. The Thirteenth Court of Appeals found there nothing pornographic about either image, reversed Bolles’ conviction and rendered a judgment of acquittal.


The State sought, and secured, discretionary review.


In an October 18, 2017 decision, the TCCA found that the two zoomed in, cropped images of the child in the famous piece of work of art constituted child pornography under Texas law. The court instructed the trial court to reinstate Bolles’ conviction and sentence.


Aggravated Assault Deadly Weapon


And, finally, there is the case of Teodoro Hernandez who was convicted of aggravated assault with a deadly weapon. The Sixth Court of Appeals found that the evidence was legally insufficient to establish the deadly weapon element of offense. The appeals court reformed the judgment and ordered a new punishment hearing.


The State sought, and secured, discretionary review before the TCCA.


In another October 18, 2017 decision, the court found that the appeals court had failed to consider “all the evidence presented at trial” that supported the deadly weapon element. The TCCA reversed the appeals court decision, reinstating the judgment of the trial court; namely, the guilty verdict for aggravated assault with a deadly weapon.


The fact that the four reversals of lower appeal court decisions by the TCCA during a two-week period causes a pause for concern. It is unreasonable to assume that all the judges on the courts involved in those four decisions suddenly took a leave of absence from the judicial senses. Each of the four lower court decisions could have easily been affirmed by the TCCA and remained consistent with existing jurisprudence.


The TCCA consistently reminds defense attorneys that it must pay deference to decisions rendered by the lower courts. We suggest the TCCA practice what it preaches.