Do, Phi Van ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0556-20
PHI VAN DO, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
WALKER, J., filed a dissenting opinion, in which YEARY, J., joined.
DISSENTING OPINION
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
2
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
3
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 (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
1
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)).
4
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.
2
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.”).
5
§ 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.
Filed: September 29, 2021
Publish