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 

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

ACCEPTED

03-12-00620-CR

4827426

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/9/2015 1:53:35 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd 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 

FOR THE THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

HENRY GONZALES, JR., 

Appellant 

V. 

THE STATE OF TEXAS, 

Appellee 

APPELLANT’S MOTION FOR EN BANC RECONSIDERATION 

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 abovereferenced 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 
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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 abovereferenced 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 
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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

 
4 

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. 

______________________________ 

Richard D. Reed