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
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 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
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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
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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
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