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Click here for the full text of this decision FACTS:Authorities indicted Arthur Garcia Sanchez for official oppression. Specifically, they alleged that acting as a public servant and under color of his office or employment, Garcia intentionally subjected Diane Gonzalez to sexual harassment. Under the relevant statute, sexual harassment is defined to mean unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power or immunity, either explicitly or implicitly. On his initial appeal following his conviction, Sanchez argued that this definition rendered the statute unconstitutionally vague, both on its face and as applied to the facts of his case. The 4th Court of Appeals agreed and reversed the conviction and ordered a judgment of acquittal. The Court of Criminal Appeals reversed the 4th Court’s judgment. In the course of rejecting the appellant’s contention that the statute is unconstitutional, the CCA resolved an ambiguity in the scope of the requirement that the sexual conduct be unwelcome. The CCA recognized that on the face of the statute it was unclear whether the “unwelcome” requirement was meant to modify only sexual advances or was also meant to modify requests for sexual favors, or other verbal or physical conduct of a sexual nature. The CCA construed the statute to mean the latter. The CCA also held that the culpable mental state of “knowing” applied to the element that the sexual conduct be unwelcome. On remand, the 4th Court again reversed the conviction, this time remanding for a new trial. The court of appeals held, inter alia, that the indictment was substantively defective for failing to allege the elements that the CCA had construed to be contained in the statute. In a second petition for discretionary review, the CCA again reversed the 4th Court’s reversal. The CCA sustained the state’s contention that the appellant had failed to preserve his argument that the indictment was substantively defective. The CCA again remanded the cause to the 4th Court. On second remand, the 4th Court reconsidered the harm issue, found the error to be harmful a second time and reversed the conviction again. In the alternative, the 4th Court reversed the conviction on the basis of two other, unassigned errors it perceived in the jury charge. HOLDING:Affirmed. At issue in the case, the CCA stated, is a jury-charge error: the failure to give a written charge distinctly setting forth the law applicable to the case. Under the CCA’s 1985 decision in Almanza v. State, such a jury-charge error is regarded as fundamental, which means it may subject the conviction to reversal on appeal regardless of whether the appellant raised an objection to it in the trial court, if that error caused the appellant egregious harm. The 4th Court did not err in reaching this question as unassigned fundamental error on appeal, the CCA stated. The CCA then examined whether the error caused egregious harm. The trial court, the CCA stated, instructed the jury in such a way that it was not required to find at least two elements of the offense of official oppression to be proven beyond a reasonable doubt prior to convicting the appellant. As the evidence was developed at trial and argued to the jury, both of those elements were disputed, the CCA stated. The jury charge, however, authorized the jury to convict the appellant without resolving that dispute, the CCA stated. The jury charge deprived Sanchez of his valuable right to have a jury determination of every element of the alleged offense, and one of his defensive theories was vitally affected to his substantial detriment, the CCA held. The 4th Court did not err to conclude that the error in the jury charge was sufficiently egregious as to deprive the appellant of a fair and impartial trial, the CCA stated. OPINION:Price, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Womack, Johnson, Holcomb and Cochran, J.J. joined. Hervey, J., did not participate. DISSENT:Keasler, J., dissented without an opinion.

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