1. “Should error in the punishment enhancement charge be reviewed as charge error rather than as an ‘illegal sentence’?”
2. “What standard of harm applies to charge errors that authorize a greater punishment?”
Bell was convicted of failure to register and sentenced as a habitual offender pursuant to Tex. Penal Code § 12.42(d). However, the trial court’s charge failed to tell the jury that the second final felony conviction must have been committed after the first felony conviction became final. Bell did not challenge his sentence on appeal but the court of appeals reviewed it, as both “unassigned error” and a “void” illegal sentence, and reversed.
The State, in its motion for rehearing, cited Niles v. State, 555 S.W.3d 562, 564 (Tex. Crim. App. 2018), reh’g denied (Sept. 12, 2018), and argued this was a simple case of unpreserved charge error amenable to review for egregious harm. The court of appeals distinguished Niles because the charge in that case omitted an element of the offense, not an enhancement provision. It also said the State waived its right to claim the punishment was proper when it “failed to request a finding essential to its claimed range of punishment.”
On review, the State argues that Niles applies and that Bell was not egregiously harmed because the record as a whole reflects that his prior convictions were properly sequenced and that the State argued as much at trial.