Daniel Benito Guajardo v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00273-CR
DANIEL BENITO GUAJARDO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2017-1908-C2
CONCURRING OPINION
At the outset, I recognize that the lead opinion correctly concluded that the
evidence in this case does not support the enhancement allegation. The question then is
what should be done about it. Simply because Guajardo complains that the evidence is
“insufficient” should not, per se, obviate a harm analysis. With respect to the
enhancement allegation, we are addressing a punishment issue that impacts the
sentencing range, not guilt/innocence. In a similar vein, in her dissent in Jordan, Presiding
Judge Keller compared this situation to relief afforded when the evidence is insufficient
to support a deadly-weapon finding. See Jordan v. State, 256 S.W.3d 286, 294 (Keller, P.J.,
dissenting). In that instance, we simply delete the deadly-weapon finding. See id. Or, in
other words, “[a] conclusion on appeal that the evidence is legally insufficient to support
a particular verdict or finding serves to remove that verdict or finding from the case.
Period.” Id. Therefore, because the evidence in the record failed to support the
enhancement allegation, the enhancement should have never been submitted to the jury.
Accordingly, the lower end of the punishment range would have been fifteen years,
rather than twenty-five years. Like Presiding Judge Keller, I would conclude that
Guajardo’s request for relief is really jury-charge error that flows from the evidentiary
insufficiency. See id. at 294.
However, regardless of whether one agrees with the preceding conclusion, the
next step involves whether or not a harm analysis should be conducted. I recognize that,
under similar circumstances, a majority on the Court of Criminal Appeals concluded that
the “court of appeals was correct in refusing to conduct a harm analysis in this case” and
reversed the trial court’s judgment and remanded for a new punishment hearing. See id.
at 292-93. The facts in this case are identical to those in Jordan and, thus, provide a second
opportunity to review Jordan in light of the law on structural error and more recent
decisions from the Court of Criminal Appeals. For the reasons articulated below, I
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believe that a complete harm analysis should have been done in Jordan and should be
done in this case.
A structural error is a “‘defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.’” Johnson v. United States,
520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (quoting Arizona v. Fulminante,
499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 302 (1991)); see Mendez v. State, 138 S.W.3d
334, 339 (Tex. Crim. App. 2004). Structural errors “give rise to automatic reversal, with
no harm analysis whatsoever.” Johnson v. State, 169 S.W.3d 223, 232 (Tex. Crim. App.
2005). An appellate court may “not review and analyze a claim of error as structural error
unless the United States Supreme Court has defined the error as structural . . . .” Burks v.
State, 227 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Gray v.
State, 159 S.W.3d 95, 97 (Tex. Crim. App. 2005)). In the following types of cases, the
United States Supreme Court has found structural errors: (1) a total deprivation of the
right to counsel; (2) lack of an impartial trial judge; (3) unlawful exclusion of grand jurors
of a defendant’s race; (4) violation of the right to self-representation; (5) violation of the
right to a public trial; (6) Ake error; and (7) an erroneous reasonable-doubt instruction to
the jury. See Mendez, 138 S.W.3d at 340 (citing Johnson, 520 U.S. at 468-69); see also Rey v.
State, 897 S.W.2d 333, 345 (Tex. Crim. App. 1995).
“All structural errors must be founded on a violation of a federal constitutional
right, but not all violations of federal constitutional rights amount to structural errors.”
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Schmutz v. State, 440 S.W.3d 25, 29 (Tex. Crim. App. 2014). Indeed, “[m]ost constitutional
errors are not ‘structural.’” Mendez, 138 S.W.3d at 340. “For federal constitutional error
that is not structural, the applicable harm analysis requires the appellate court to reverse
unless it determines beyond a reasonable doubt that the error did not contribute to the
defendant’s conviction or punishment.” Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim.
App. 2017) (plurality op.) (citing TEX. R. APP. P. 44.2(a)).
The situation in the case at bar is not listed among those deemed structural by the
United States Supreme Court. Therefore, the error in this case is not structural and should
be subjected to a harmless-error analysis.1 See Lake, 532 S.W.3d at 411.
Nevertheless, the Jordan majority relied on prior decisions in Russell v. State, 790
S.W.2d 655 (Tex. Crim. App. 1990) and Jones v. State, 711 S.W.2d 634 (Tex. Crim. App.
1986) to support its conclusion that a harm analysis should not be conducted when the
State failed to meet its burden of showing finality of the enhancement conviction. See 256
S.W.3d at 291. Both of these cases predate the Court’s major pronouncement in Cain v.
State regarding the application of harmless-error analysis to all errors not deemed
1 It is also noteworthy that the United States Supreme Court has held that the failure to submit an
element of the offense to the jury was not structural error and was thus subject to a constitutional harmless-
error review. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 35 (1999). Neder was charged
with mail fraud, wire fraud, and bank fraud. Id. at 6. At trial, the court failed to include materiality as an
element of the offense in its jury instructions, although it is an element of all three crimes. Id. at 4-6. The
Supreme Court held that this was error, but subject to a Chapman harmless-error analysis. Id. at 4 (citing
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1966)). Surely, if the omission of a
necessary element in the charge during the guilt-innocence phase is subject to harmless-error analysis, the
trial court’s error in submitting the enhancement allegation in this case without sufficient evidence of the
proper sequencing should also warrant harmless-error analysis.
Guajardo v. State Page 4
structural by the United States Supreme Court. 947 S.W.2d 262, 264 (Tex. Crim. App.
1997) (“Except for certain federal constitutional errors labeled by the United States
Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness
of a plea, or any other mandatory requirement, is categorically immune to a harmless
error analysis. Of course, where the error involved defies analysis by harmless error
standards or the data is insufficient to conduct a meaningful analysis, then the error will
not be proven harmless beyond a reasonable doubt . . . . Hence, it may be true that some
kinds of errors (particularly jurisdictional ones) will never be harmless . . . and that some
other kinds of errors will rarely be harmless. But, appellate courts should not
automatically foreclose application of the harmless error test to certain categories of
errors.”).
Additionally, the Jordan majority later emphasized that the “absence of discrete,
objective facts decided by a jury in assessing punishment” prevents a reviewing court
from quantifying what impact the unsupported finding had on a jury’s normative
sentencing function. 256 S.W.3d at 293. Thus, “[u]nder these circumstances, the State’s
failure to meet its burden of proof, even if subjected to a harm analysis, can never be
deemed harmless.” Id.
Arguably, the Jordan majority conducted a harm analysis—albeit an abbreviated
one. See id. Furthermore, just because a particular error might result in a conclusion of
harm in most, if not all, instances should not eliminate the need for a harm analysis
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altogether. Such analysis is important for consistency in the law, especially considering
the analysis in the Jordan majority appears to be inconsistent with the law on structural
error, as well as other decisions from the Court of Criminal Appeals. See Lake, 532 S.W.3d
at 411 (“Even when an error that is not structural under Cain seems to defy proper
analysis or the data seems to be insufficient to assess harm, an appellate court is obligated
to conduct a thorough analysis to determine the extent of harm caused by this error before
reversing the conviction. . . . If, after such analysis, the harm of the error cannot be
assessed, the error will not be proven harmless beyond a reasonable doubt, but appellate
courts should not automatically foreclose application of the harmless error test.” (internal
quotations & footnotes omitted)).
In her dissent, Presiding Judge Keller emphasized that:
Even if the jury had been correctly instructed, it would have heard exactly
the same evidence. The prior convictions would still have been presented
as “convictions” rather than simple bad acts. The only differences are that
the jury would have been permitted to assess a lower minimum
punishment, and the range of punishment would have been expanded by
ten years. But the jury gave appellant 99 years—the highest term of years
possible. I could readily conclude that the ten-year difference in the lower
end of the punishment range might have mattered if the jury had assessed
25 years or 50 years, or even 75 years. But not 99 years.
Jordan, 256 S.W.3d at 295 (Keller, P.J., dissenting).
Similarly, in the instant case, Guajardo was sentenced to 99 years—the highest
term of years possible. Furthermore, the prior conviction would still have been presented
to and considered by the jury. And like Presiding Judge Keller, I would have conducted
Guajardo v. State Page 6
a harm analysis on this non-structural error and ultimately concluded that the error was
harmless, especially given that Guajardo was sentenced at the very top of the punishment
range.
However, I am resigned to the fact that Jordan is still binding precedent regarding
this issue, and as an intermediate appellate court, we are required to follow it. See State
v. Delay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) (“As an intermediate appellate
court, we lack the authority to overrule an opinion of the court of criminal appeals.”),
aff’d sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2006); State v. Stevenson,
993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) (“Because a decision of the
court of criminal appeals is binding precedent, we are compelled to comply with its
dictates.”). Further, following Jordan, I believe that the lead opinion appropriately
reversed the trial court’s judgment and remanded for a new trial on punishment. But,
because I believe that the Court of Criminal Appeals should revisit Jordan and, at the very
least, require a complete harm analysis for his non-structural error, I respectfully concur
in the Court’s judgment.
JOHN E. NEILL
Justice
Concurring opinion delivered and filed August 5, 2020
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