Henry Gonzales, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: April 9, 2015
• Docket: 03-12-00620-CR
• Status: Published

Opinion

ACCEPTED 03-12-00620-CR 4827426 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 1:53:35 PM JEFFREY D. KYLE CLERK NO. 03-12-00620-CR IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 4/9/2015 1:53:35 PM JEFFREY D. KYLE Clerk

HENRY GONZALES, JR., Appellant V. THE STATE OF TEXAS, Appellee

APPELLANT’S MOTION FOR EN BANC RECONSIDERATION

APPEAL FROM THE 299TH JUDICIAL DISTRICT COURT OF TRAVIS COUNTY, TEXAS CRIMINAL ACTION NO. D-1-DC-12-904023 HONORABLE KAREN SAGE, JUDGE PRESIDING

RICHARD D. REED 316 W. 12th Street, Suite 313 Austin, Texas 78701-1820 512-322-9443 rick.reed@maverickcounsel.com State Bar No. 16686100 LEAD COUNSEL FOR APPELLANT NO. 03-12-00620-CR IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

HENRY GONZALES, JR., Appellant V. THE STATE OF TEXAS, Appellee

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES Appellant, Henry Gonzales, Jr., by and through his attorney of

record, Richard D. Reed, and, pursuant to the provisions of Rule 49.7, Texas Rules of

Appellate Procedure, files this motion for en banc reconsideration in the above-

referenced case. In support of such motion, Appellant would show unto the Court as

follows:

I.

On December 4, 2014, a three-judge panel of this Court consisting of Justices

Puryear, Goodwin, and Field, issued a memorandum opinion in the above-referenced

case affirming the trial court’s judgment of conviction. Gonzales v. State, No. 03-12-

00620-CR (Tex. App—Austin Dec. 4, 2014) (mem. op.). After determining that the trial court abused its discretion in prohibiting defense counsel from asking the

prospective jurors who had been summoned to hear Appellant’s case whether they

could follow the law and acquit if they were not convinced beyond a reasonable doubt

of Appellant’s guilt, the Court conducted a harm analysis of the error. Id. The Court

ultimately concluded that the trial court’s error “did not have a substantial and

injurious influence in determining the jury’s verdict.” Id. Accordingly, the Court

overruled Appellant’s first point of error. Id.

II.

On December 19, 2014, Appellant filed a motion for rehearing in the above-

referenced case. On March 25, 2015, the Court denied that motion.

III.

The Court erred in conducting a harm analysis of the error committed by the

trial court in prohibiting defense counsel from asking the jury venire, “Whether they

can follow the law and acquit if they are not convinced beyond a reasonable doubt of

[Appellant’s] guilt?” As pointed out on pages 42 through 55 of Appellant’s Brief, the

error committed by the trial court in prohibiting defense counsel from asking the

aforesaid question, although not one that has been expressly labeled by the United

States Supreme Court as “structural,” constitutes structural error of a federal

constitutional nature tantamount to the error committed by the trial court in Sullivan v.

Louisiana, 508 U.S. 275 (1993), because it is a “defect affecting the framework within

2 which the trial proceeds, rather than simply an error in the trial process itself.” Proper

treatment of the aforesaid error as one that “automatically establishes harm” would

result in reversal of the trial court’s judgment of conviction.

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this case be resubmitted to the Court for en banc review and that, after such

review, the Court sustain Point of Error No. 1 presented in Appellant’s Brief, reverse

the judgment of conviction rendered by the trial court, and remand the case for a new

trial.

Respectfully submitted,

______________________________ RICHARD D. REED 316 W. 12th Street, Suite 313 Austin, Texas 78701-1820 512-322-9443 rick.reed@maverickcounsel.com State Bar No. 16686100 LEAD COUNSEL FOR APPELLANT

3 PROOF OF SERVICE

I hereby certify that on this, the ninth, day of April, A.D. 2015, I personally

served a copy of the above-and-foregoing Appellant’s Motion for En Banc

Reconsideration upon Rosemary Lehmberg, District Attorney of Travis County,

Texas, whose address is 509 West 11th Street, Suite 1.100, Austin, Texas 78701-2103,

by delivering a copy of the said motion to one of her employees at her office.

______________________________ Richard D. Reed

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, I hereby certify

that the above-and-foregoing Appellant’s Motion for En Banc Reconsideration

contains a total of 406 words exclusive of the caption, signature, proof of service, and

certificate of compliance.