What We're Up Against: Harmless Error

 Posted on November 09, 2011 in Uncategorized

Before we try tough cases clients often ask, "if things don't go well, we can appeal, right?"

Well, sure. If we lose, we can appeal, but the appeal isn't about retrying or even revisiting the facts of the case. If the appellate court finds that "no rational trier of fact" could have found proof of guilt beyond a reasonable doubt, the case will be reversed for legally insufficient evidence. Otherwise, the court of appeals will only look at mistakes that the judge made in her role as referee of the trial. Except in very rare instances, the court of appeals will only look at preserved error-mistakes that the judge made that I called to her attention in time for her to do something about them. When briefing attorneys (the baby lawyers who help the appellate judges write their opinions) are hired at courts of appeals, the first thing they're taught to do is to look for "procedural default"-waiver-the failure to preserve error for appeal.

I'll preserve all the error I can (that's a large and neglected part of the criminal-defense trial lawyer's job), but convincing a court of appeals that an overruled objection (mine) or a sustained objection (the state's) is error is an uphill battle. Even once we've convinced a court of appeals that the judge erred, however, the battle is not over.

Here's Texas's harmless error rule in criminal cases, Texas Rule of Appellate Procedure 44.2:

(a) Constitutional Error. 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.(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Any error other than a "constitutional error" must be disregarded unless it affects substantial rights. So if we preserve error and convince the court of appeals that it is error (but not constitutional error), we still lose unless we can show harm. As you might imagine, appellate courts that go hunting for procedural default are nowhere near as diligent in looking for harm.

With constitutional error-error that violates the Texas or U.S. Constitution-the presumption is switched: is is presumed harmless unless the appellate court determines beyond a reasonable doubt that it did not contribute to the conviction or the punishment.

(Structural error-defects affecting the framework within which the trial proceeds-is its own special category, not subject to a harm analysis at all. For example: the total deprivation of the right to counsel at trial; a judge who was not impartial; unlawful exclusion of members of the defendant's race from a grand jury; denial of the right to self-representation at trial; or denial of the right to public trial.)

So if the defendant has preserved error and the court has found that it is error and that it violated the Texas Constitution, the defendant is on easy street, right? New trial? Not so fast.

In Texas, the denial of a defendant's right to pose proper questions during voir dire is constitutional error-it violates the defendant's right to trial under the Texas Constitution. So when a criminal-defense lawyer is barred from asking a proper question, it's error, and constitutional error, and the case has to be reversed unless the court of appeals determines beyond a reasonable doubt that it did not contribute to the outcome of the case.

Suppose that the proper question was an open-ended question. Nobody knows what the sixty potential jurors might have said in response to the open-ended question. Nobody can guess where their responses would have taken the discussion, how other jurors would have responded to them, what the lawyer might have learned, what alliances would have been formed, how the answers would have affected the use of peremptory challenges or challenges for cause, what the jury would have looked like, what the jury would have done differently had the lawyer been allowed to do his job. Nobody can say whether the jury looked a little less favorably on the lawyer-gave him a little less credibility, liked him a little less-because the judge shut down that particular question.

To say, "the defendant would have been convicted by any jury" is to deny the power-the unpredictability-of a jury trial. But perhaps a court could believe beyond a reasonable doubt, from reading a cold record, that no further voir dire could have made the difference between conviction and acquittal, or between conviction and a hung jury.

In Texas, though, our juries decide not only culpability but also punishment. Unless the jury gave the defendant the bare minimum there is no way that an intellectually honest judge could conclude beyond a reasonable doubt that asking that open-ended question would not have led to a shorter sentence. It's not just the question, but everything that might have flowed from it.

Saying that a proper question would not have led to a shorter sentence is like saying that the car crash would have been just as bad if the driver had gotten a good night's sleep the night before: there may be no direct link, but it's not hard to envision how one could have led to the other. Sure, the crash could have been worse too, or just as bad-we really can't know-but remember: with constitutional error there's a presumption of harm.

So surely a Texas appellate court finding that the trial court erred in disallowing a proper question in voir dire would have to reverse, at least for a new punishment hearing, right?


In Davis v. State, the Fourteenth Court of Appeals (Justices Boyce, McCally, and my law-school classmate Jeff Brown), in a mind-bogglingly dishonest opinion, did a harm analysis on remand from the Court of Criminal Appeals and concluded "beyond a reasonable doubt that the trial court's error in refusing to allow the proper voir dire question in this case was harmless and did not contribute to the sentence assessed."

Among other factors, the court noted that "The jury assessed appellant's punishment at ten years' confinement - the low end of the punishment range." Wrong: the low end of the punishment range was five years. Ten years is nearer the low end than the high (ninety-nine years), true, but calling it "the low end" is as sophistical as the rest of this abomination of an opinion.

Abominable opinions on criminal cases from Texas courts of appeals are not unusual. The courts are eager to uphold convictions and sentences, and the judges are scared of appearing "soft."

And that is why you never, if you have a choice, rely on your right to appeal.

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