On appeal, Mason argues that by allowing unauthorized persons to question a witness during grand jury proceedings, his substantial rights were violated. See Texas Rule of Appellate Procedure 44.2(b). The 7th District Court of Appeals (Amarillo) reversed the trial court ruling after concluding that the State’s unauthorized questioning caused harmful error. The Court of Criminal Appeals now reverses the 7th Court holding that the error did not affect appellant’s substantial rights.
The primary issue on appeal was whether the court must decide that the error affected the charging decision or the ultimate conviction/sentence. The State was arguing that the violation must affect the conviction and sentence, and conversely, appellant argued that it need only affect the charging decision. The 7th Court agreed with appellant that a grand jury error must be analyzed for its effect on the charging decision. The CCA, borrowing Justice O’Connor’s reasoning from her concurring opinion in U.S. v. Mechanik, 475 U.S. 66 (1986), followed in line with the 7th Court, holding:
[A]ddressing a grand jury statutory violation, the proper subject of a harm analysis is the product of those proceedings; the charging decision.The CCA did not concur, however, with the 7th Court harmless error analysis, stating:
We agree with the analytical focus chosen by the court of appeals, but we do not agree with its conclusion that the State’s actions caused harmful error.Judge Womack concurred and would follow the Supreme Court majority opinion in Mechanik.
Takeway: A defendant/appellant must show that the grand jury error affected the charging decision in order to demonstrate a violation of his/her substantial rights. Great, but how do you do that with the one-sided transcript of a grand jury proceeding? Good luck.