IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1225-19

ORLANDO BELL, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

BURLESON COUNTY

SLAUGHTER, J., filed a concurring opinion in which YEARY, J., joined.

CONCURRING OPINION

I agree with the Court’s conclusion that the defect in the punishment-phase jury 

instructions here constituted ordinary charge error, such that the error is subject to a harm 

analysis under Almanza1 before reversal and a new punishment hearing is appropriate. 

1 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).
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Thus, the court of appeals erred to conclude that the erroneous wording in the charge 

rendered Appellant’s sentence “illegal” such that he was automatically entitled to a new 

punishment hearing. Nevertheless, I write separately to express my agreement with one 

limited aspect of the court of appeals’ analysis—its view that our decision in Niles v. State, 

555 S.W.3d 562 (Tex. Crim. App. 2018), is distinguishable from this situation and does 

not directly control resolution of this case. See Bell v. State, No. 07-18-00173-CR, 2019 

WL 6205460, at *2 (Tex. App.—Amarillo Nov. 19, 2019) (mem. op. on reh’g).

In concluding that Niles was distinguishable from the instant case, the court of 

appeals noted that, in Niles, the defect in the jury instructions amounted to the complete 

omission of an essential element of the offense (specifically, in a prosecution for terroristic 

threat, whether the victims were public servants, which was a finding required to elevate 

the offense from a Class B to a Class A misdemeanor). Id.; see also Niles, 555 S.W.3d at 

564. By contrast, here, the error in the instructions is far less egregious and merely involves 

erroneous wording in the punishment enhancement charge under Section 12.42(d), 

pertaining to the sequencing of Appellant’s prior convictions. Nothing is “missing” from 

the charge entirely, as was the case in Niles. And unlike the situation in Niles, the jury has 

not failed to render any finding essential to a determination of Appellant’s guilt. I therefore 

agree with the court of appeals that, given these distinctions, reliance on Niles is 

unwarranted.

I further note that because the error in Niles involved the complete omission of an 

essential element of the offense from the jury instructions, the Court found that it 

implicated federal constitutional protections under the Supreme Court’s decision in
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Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that

under the Fifth and Sixth Amendments, “other than the fact of a prior conviction, any fact 

that increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis 

added). But this case does involve the fact of Appellant’s prior convictions, and so the 

Court’s analysis in Niles focusing on the nature of Apprendi error is not implicated here.2

This distinction is important with respect to the applicable harm standard. Whereas 

constitutional errors under Apprendi may be subject to evaluation under the constitutional 

harmless-beyond-a-reasonable-doubt standard, the non-constitutional error in the jury 

instructions here clearly does not trigger that heightened harm standard and instead falls 

under Almanza’s less demanding some-harm or egregious-harm standards. Compare TEX.

R. APP. P. 44.2(a), with Almanza, 686 S.W.2d at 171. Thus, the Court’s reliance on Niles

here overlooks this key distinction and may confuse the bench and bar with respect to the 

harm standard that applies to this type of error. In short, because this case involves a 

complaint purely with respect to erroneous wording in the punishment-enhancement 

2 In light of this aspect of Apprendi, the federal courts of appeals have declined to apply Apprendi

to claims involving punishment enhancement based on a defendant’s criminal history. See, e.g.,

United States v. Williams, 855 Fed. App’x 635, 640 (11th Cir. 2021) (rejecting defendant’s claim 

that he was constitutionally entitled to jury finding that his prior felonies used for enhancement 

purposes were committed on different dates; under Apprendi, “the law is clear that a defendant’s 

prior convictions do not have to be alleged in the indictment nor proven to the trier of fact beyond 

a reasonable doubt.”); United States v. Dudley, 5 F.4th 1249, 1260 (11th Cir. 2021) (“Finally, like 

many of our sister circuits, we have repeatedly rejected the argument that judicially determining 

whether prior convictions were committed on different occasions from one another . . . violates a 

defendant’s Fifth and Sixth Amendment rights” under Apprendi) (and collecting cases from other 

circuits).
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charge, and not the entire omission of a statutory element in violation of the defendant’s 

Fifth and Sixth Amendment rights under Apprendi, Niles should not apply.

While I would not rely on Niles, I agree with the Court that this situation falls 

squarely within our analytical framework for evaluating charge error arising when a trial 

judge fails to properly instruct the jury in accordance with the “law applicable to the case.” 

TEX. CODE CRIM. PROC. art. 36.14. The Court correctly holds that such errors are subject 

to an analysis for harm and do not warrant automatic reversal of the judgment on 

punishment. Therefore, the court of appeals ultimately erred.

3 Given my agreement with 

the Court’s holding, but disagreeing with its reliance on Niles, I can concur only in the 

Court’s judgment.

FILED: December 8, 2021

PUBLISH

3 I briefly note here that at least two intermediate appellate courts have applied the Almanza

framework to errors in the charge under Section 12.42. See Roberts v. State, 321 S.W.3d 545 (Tex. 

App.—Houston [14th Dist.] 2010) (applying Almanza egregious harm standard to error where the 

jury charge erroneously instructed jury to find all alleged enhancements true, but defendant 

actually pled not true to one of four alleged prior convictions); Reynolds v. State, 227 S.W.3d 355 

(Tex. App.—Texarkana 2007) (finding that omission of requirement from punishment charge that 

prior convictions be proved beyond a reasonable doubt was charge error subject to Almanza harm 

analysis).