PD-0234-17, PD-0235-17 06/07/2017
"Whether the Court of Appeals erred in reforming Appellant's judgment to reflect conviction for a Class B misdemeanor."
Niles was charged with two counts of terroristic threat against fellow firefighters, which are Class A offenses with the public servant enhancement. Although the State alleged the enhancement and covered it in voir dire, the jury charge did not ask the jury to find it. There is no evidence the State intended to abandon it. Despite its omission, the judgments reflect Class A convictions and the trial court sentenced Niles to Class A punishments. No one objected that either was incorrect.
On appeal, Niles argued that both were incorrect because the jury's verdict supports only Class B convictions. The court of appeals agreed. It reformed the judgments to reflect Class B convictions and remanded for a new punishment hearing.
The State filed a petition asking whether the court of appeals should have applied the harmless error review for omitted elements outlined in Olivas v. State, 202 S.W.3d 137 (Tex. Crim. App. 2006). The Court refused that petition but granted one on its own motion that more broadly asks whether what the court of appeals did was correct.
