1. “The Fourteenth Court erred by applying the constitutional harm standard to unobjected-to charge error.”
2. “Alternatively, the Fourteenth Court erred by concluding that a punishment-phase objection preserved error in the guilt-phase charge.”
3. “The Fourteenth Court erred by finding reversible harm even though the error concerned an uncontested matter established by objective facts.”
Do was charged with driving while intoxicated and having “an alcohol concentration of 0.15 or more at the time the analysis is performed,” a Class A misdemeanor. Tex. Penal Code § 49.04(d). The .15 element was not mentioned during voir dire or during the guilt phase. No one objected. After Do was convicted, the State reurged the .15 allegation at punishment to the judge. Do’s objection that it was not submitted during the guilt phase was overruled. The trial court found the enhancement true, based on the BAC test of .194 admitted during the guilt phase, and punished Do as a Class A misdemeanant.
The court of appeals reversed. It acknowledged that the failure to submit an element at the guilt phase is reviewed as charge error under Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018), and held that the harmless-error standard for objected-to constitutional charge error applied. See Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000). The court could not find the error was harmless beyond a reasonable doubt because 1) it was possible the jury convicted Do based on his impairment rather than the admitted BAC, 2) the jury did not have to be unanimous on that regard, 3) the BAC was contested to some extent, 4) the .15 issue was not framed for the jury during the guilt phase, and 5) Do was punished for a Class A misdemeanor.
The State challenges all of the court’s analysis. First, the court of appeals was wrong to either find or assume the error was preserved. Because the error is the omission of an element from the guilt-phase charge, an objection that comes after a verdict of guilt is untimely. As a result, egregious harm should have been required for reversal. Second, the court considered inappropriate harm factors. For example, Do’s punishment for a Class A misdemeanor does nothing to answer whether he should have been subject to it, which is the question. That question was answered because the BAC test showed above .15, and that fact—the number itself—was uncontested.