Janet Kay Ahmad v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-008-CR
JANET KAY AHMAD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY
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OPINION ON REHEARING
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After reviewing Appellant Janet Kay Ahmad’s motion for rehearing, we
deny the motion. We withdraw our May 28, 2009 opinion and judgment and
substitute the following. Our ultimate disposition is unchanged.
Introduction
Appellant appeals from her conviction for possession of a hoax bomb. In
seven points, she argues that limitations barred prosecution because the first
of two indictments failed to toll limitations; that the evidence is legally and
factually insufficient to prove that the bomb—a World War II practice
bomb—was a “hoax” bomb; that the trial court erred by reopening the evidence
to allow the State to prove its venue allegations; and that the indictment failed
to sufficiently notify her of the charges against her. We affirm.
Factual Background
Southridge Hills is a residential subdivision of Arlington, Texas. During
World War II, military aviators used the then-undeveloped Southridge Hills area
as a practice bombing range, dropping small, cast iron “practice bombs.” The
practice bombs each contained a “spotting charge” consisting of a 10-gauge
shotgun blank and chemicals designed to fire on impact and expel a puff of
smoke so that an observer could see where the bomb landed. The practice
bombs were not designed to explode.
After the Southridge Hills subdivision was developed in the late 1990s,
homeowners began to discover the practice bombs on their property. The
Army Corps of Engineers circulated fliers warning residents about the practice
bombs, and the subdivision’s developer instructed homeowners to call 9-1-1 if
they found a bomb. Between 2004 and 2005, the Corps discovered and
removed 241 practice bombs in Southridge Hills.
Appellant, a San Antonio resident, is the president of Homeowners for
Better Builders (“HOBB”), the mission statement of which is “[t]o support a
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meaningful, long[-]term solution to the problem of the unregulated home
building industry.” On January 26, 2002, Appellant, Crystal McCartney—a real
estate agent—and Thea Lewis—a Southridge Hills resident—went to Southridge
Hills to distribute fliers promoting an upcoming meeting to be hosted by
Appellant concerning the practice bombs.
McCartney testified that after the women drove around the neighborhood
looking at houses under construction, Appellant said that “she wanted to look
for a bomb, to see if she could find one of the bombs.” Appellant and
McCartney drove to an empty lot. Five to ten minutes later, Appellant said she
had found a bomb.
At Appellant’s request, McCartney called 9-1-1 and told the dispatcher
that they had found a bomb. McCartney testified that she believed she was
dealing with an emergency. Later, said McCartney, Appellant told her that the
bomb was one she had found at an earlier date, and McCartney believed that
Appellant placed the bomb where she claimed to have found it on January 26
for the sake of publicity. Appellant concedes that she did not, in fact, find the
practice bomb at that location but “planted” it there herself.
Andrew Leonard, who lived in a house adjacent to the lot where Appellant
found the bomb, testified that he saw Appellant, McCartney, and Lewis looking
around on the vacant lot. Leonard became suspicious of the women’s intent
3
when he saw Lewis, whom he knew to be involved in litigation with the
developer over the practice bombs, so he continued to watch them. He saw
Appellant retrieve a shovel and another object from her vehicle, put the object
in her pocket, and return to the lot. He said Appellant then moved some dirt
with the shovel, reached into her pocket, and placed something on the ground.
Suspecting that something was amiss, Leonard called to his wife to see what
was happening, and she began to videotape the women. Leonard testified that
Appellant did not appear scared as though she had been dealing with a
dangerous bomb. Leonard himself considered the practice bombs not
dangerous because he had attended several Corps of Engineers meetings and
had conducted “extensive research” on such devices.
Arlington Police Officer Jessie Minton was dispatched to the scene of the
incident. Officer Minton stated that he discovered a practice bomb protruding
from the soil. He testified that although the soil in the lot was sticky, black
mud, the practice bomb was dry and rusty, and the soil on it did not match the
mud in the lot. He suspected that the bomb had been deliberately planted
within a few minutes of his arrival at the scene. He did not consider the bomb
dangerous. He testified that the device was “not explosive” but “look[ed] like
a bomb.”
4
Officer Jack Gariota testified that he assisted Officer Minton and
discovered the bomb’s tail fin protruding from the ground. Officer Gariota
stated that he had conducted online research concerning practice bombs. He
testified that he believed the bomb had deteriorated after decades of exposure
to moisture and opined that it was inert and was not a threat, and he was not
afraid to hold it. He also believed that the device had been moved from its
original place of discovery to the vacant lot. He recalled that home owners who
had found similar devices had been “pretty concerned” and avoided them as
much as possible.
Teresa Solano, a homeowner in the Southridge Hills subdivision, testified
that notices she received from the Army Corps of Engineers and the subdivision
developer described the bombs as “practice bombs,” not “hoax bombs.” She
stated that these notices advised residents to immediately contact the fire
department or police department upon discovery of a practice bomb.
Carl Ford, a supervisor in the Army Corps of Engineers’ hazardous waste
and military munitions group, testified that the device Appellant found was a
MK-23 practice bomb. Ford considers practice bombs dangerous because
“[t]hey can very easily hurt or injure somebody if . . . mishandled.” Ford stated
that the Corps excavated 241 practice bombs from the subdivision “[t]o protect
the public” from “explosive hazards.”
5
Procedural Background
On August 12, 2003, a grand jury returned a two-count indictment
charging Appellant with tampering with and fabricating evidence. Appellant
moved to quash the indictment, and the State moved to dismiss it for failure to
state an offense. The indictment was dismissed on May 26, 2004. On July
8, 2004, a grand jury returned a second indictment, this time alleging one count
of making a false report and one count of possessing a hoax bomb. The
indictment contained a tolling paragraph asserting that the conduct charged in
the second indictment was the same conduct that had been charged in the first
indictment.
On January 8, 2008, a jury acquitted Appellant of the false-report count
but convicted her for the hoax-bomb count. The trial court assessed
punishment of a $4,000 fine and 180 days in jail but suspended imposition of
the sentence and placed Appellant on community supervision for twelve
months. Appellant filed a combined motion for new trial and for arrest of
judgment, which were overruled by operation of law. Appellant then filed this
appeal.
This is Appellant’s third trip to this court. See Ahmad v. State, 158
S.W.3d 525 (Tex. App.—Fort Worth 2004, pet. ref’d) (Ahmad I); Ex parte
Ahmad, No. 02-05-00338-CR, 2007 WL 80013 (Tex. App.—Fort Worth
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January 11, 2007, pet. ref’d) (not designated for publication) (Ahmad II). In
Ahmad I, Appellant attempted to appeal the trial court’s denial of her motion to
dismiss the second indictment as barred by limitations. 158 S.W.3d at 526.
We dismissed the appeal for want of jurisdiction. Id. at 527. In Ahmad II,
Appellant appealed the trial court’s denial of her petition for writ of habeas
corpus—again related to Appellant’s limitations and tolling arguments—and we
affirmed the denial. 2007 WL 80013, at * 1, 4.
Discussion
I. Limitations and Tolling
In her first two issues, Appellant argues that the trial court erred by
denying her motion to quash the indictment and her combined motion in arrest
of judgment and for new trial because the State filed its second indictment after
the two-year statute of limitations expired. Appellant’s argument has three
components. First, she argues that the first indictment did not toll limitations
with regard to the second indictment because the first indictment failed to
allege an offense. Second, she argues that the first indictment did not toll
limitations with regard to the second indictment because the two indictments
alleged different conduct. Third, she argues that the second indictment’s tolling
paragraph was insufficiently specific to relate back to the first indictment.
7
A. Preservation of limitations issues
Before turning to the merits of Appellant’s limitations arguments, we
must address the State’s argument that Appellant waived her issues by failing
to request a jury instruction on limitations. The State relies on Tita v. State,
267 S.W.3d 33 (Tex. Crim. App. 2008), but Tita does not support the State’s
argument. In that case, different grand juries returned five indictments against
Tita. Id. at 34–35. Tita moved to dismiss the last indictment as barred by
limitations, the trial court denied the motion, and the State brought Tita to trial
on the last indictment. Id. at 35. When the State rested on its case in chief
and again at the close of all evidence, Tita moved for a directed verdict based
on limitations; the trial court denied both motions. Id. at 35–36. On appeal,
Tita argued that the trial court erred by failing to dismiss the indictment and
that the evidence presented at trial was legally insufficient to support his
conviction because the State failed to prove that the offense occurred within
the applicable limitations period. Id. at 36.
With regard to Tita’s sufficiency argument, the court of criminal appeals
held that Tita failed to preserve the issue for review by failing to request a jury
instruction on limitations, id. at 38, and the State relies on this holding to
support its waiver argument in this case. Specifically, the court stated as
follows:
8
The record reflects that, at the guilt stage of trial, appellant moved
twice for an instructed verdict of acquittal, but he never requested
a jury instruction on the statute of limitations defense. Under those
circumstances, the State was not obligated to prove that its
prosecution was not limitations-barred.
Id. at 39. Unlike Tita, Appellant does not argue that the evidence was
insufficient to prove that the offense occurred within the limitations period.
Thus, the State’s reliance on this part of Tita is misplaced. Further, the court
of criminal appeals considered on the merits Tita’s other issue, that is, whether
the trial court erred by failing to dismiss the indictment as barred by
limitations—the same issue Appellant raises in this case—despite Tita’s failure
to request a jury instruction on limitations. Id. at 37–38. We therefore reject
the State’s argument that Appellant waived her limitations issues by failing to
request a jury instruction on limitations.
B. Standard of review
We review a trial court’s denial of a motion to quash an indictment de
novo because the sufficiency of an indictment is a question of law. Lawrence
v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 128 S.
Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
De novo review is appropriate because this question of law does not turn on the
credibility and demeanor of a witness, and thus, the trial court was in no better
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position to deny the motion. See Moff, 154 S.W.3d at 601; Mungin v. State,
192 S.W.3d 793, 794 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Conversely, we review a trial court’s denial of motions in arrest of
judgment and motions for new trial for an abuse of discretion. Charles v. State,
146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Hawkins v. State, 910 S.W.2d
176, 178 (Tex. App.—Fort W orth 1995, no pet.). A trial court abuses its
discretion when no reasonable view of the record could support the trial court’s
ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles,
146 S.W.3d at 208. We view the evidence in the light most favorable to the
trial court’s ruling and substitute our judgment only if the decision was arbitrary
or unreasonable. Webb, 232 S.W.3d at 112.
We therefore review the trial court’s rulings on Appellant’s motion to
quash and motion in arrest of judgment/motion for new trial under both the de
novo and abuse of discretion standards.
C. The indictments
The first indictment, returned on August 12, 2003, alleged as follows:
On or about the 26th day of January, 2002, [Appellant] did
intentionally or knowingly, make, present, or use, a thing, to-wit:
a training bomb, which she buried that day . . . with knowledge of
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its falsity . . . [and] knowing that an official proceeding was
pending or in progress . . . .1
Appellant moved to quash the first indictment for failing to state an offense.
The State conceded the issue and filed its own motion to dismiss the
indictment, which the trial court granted on May 26, 2004.
The grand jury returned a second indictment on July 8, 2004, alleging as
follows:
[O]n or about the 26th day of January 2002, [Appellant] did . . .
intentionally or knowingly, initiate, communicate, circulate, or
broadcast, a report of a present, past or future other emergency,
to-wit: that a bomb was located in a residential development . . . .
Count two: And it is further presented . . . that [Appellant] . . . did
then and there knowingly possess a hoax bomb with the intent to
use the hoax bomb to make another believe that the hoax bomb
was an explosive or incendiary device, or with intent to cause
alarm or reaction of any type by an official of a public safety
agency or volunteer agency organized to deal with emergencies.
Tolling paragraph: And I do further present in and to said court that
heretofore, on the 6th day of August, 2003, a complaint was duly
filed in the 213th Criminal District Court of Tarrant County, Texas,
charging said defendant with an offense arising out of the same
conduct.
1
… The “official proceeding” alleged by the indictment was a lawsuit
between Southridge Hills homeowners and the developer. The second count
of the first indictment alleged the identical conduct, but for the “official
proceeding,” it alleged the police investigation into the bomb’s discovery.
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D. Tolling effect of defective first indictment
Appellant argues that the first indictment—which the State moved to
dismiss because it failed to state an offense—was defective and did not toll
limitations with regard to the second indictment—which the grand jury returned
more than two years after the incident in question. Possession of a hoax bomb
is a Class A misdemeanor subject to the two-year statute of limitations. See
Tex. Penal Code Ann. § 46.08(b) (Vernon 2003); Tex. Code Crim. Proc. Ann.
art. 12.02 (Vernon 2005).
A limitations period is suspended or tolled during the pendency of a
charging instrument, and the time between filing and dismissal of a charging
instrument that is rendered invalid “for any reason” is not computed in the
limitations period. Tex. Code Crim. Proc. Ann. art. 12.05(b)-(c) (Vernon 2005).
The legislature enacted article 12.05 to overcome the traditional rule that
invalid indictments will not toll the limitations period in the absence of a statute
so holding. Vasquez v. State, 557 S.W.2d 779, 784 (Tex. Crim. App. 1977),
overruled on other grounds, Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.
1998). For tolling purposes, “[i]t makes no difference whether the initial
indictment is faulty or valid.” State v. Hall, 794 S.W.2d 916, 919 (Tex.
App.—Houston [1st Dist.] 1990), aff’d, 829 S.W.2d 184 (Tex. Crim. App.
1992) (en banc). Consequently, a defective charging instrument will toll
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limitations under article 12.05(b) for a subsequent indictment when both
indictments allege the same conduct, act, or transaction. Hernandez v. State,
127 S.W.3d 768, 774 (Tex. Crim. App. 2004).
Appellant further argues that the first indictment is not merely defective;
she argues that it is no indictment at all, and therefore did not toll limitations,
because it failed to allege an offense. The Texas constitution requires that an
indictment allege that (1) a person (2) committed an offense; without both of
those elements, the charging instrument is not an indictment. Teal v. State,
230 S.W.3d 172, 179 (Tex. Crim. App. 2007).2 The proper test to determine
if a charging instrument alleges “an offense” is whether the allegations in it are
clear enough that one can identify the alleged offense. Id. at 180. Stated
another way: Can the trial court (and appellate courts who give deference to
the trial court’s assessment) and the defendant identify what penal code
provision is alleged? Id.
Appellant contends that the first count of the first indictment alleged
tampering with evidence in a civil lawsuit, which Appellant claims is not an
offense. We agree that the first count alleged tampering with evidence in a civil
2
… In her motion for rehearing, Appellant contends that “[b]oth Appellant
and the State agreed that Teal . . . is controlling” and faulted this court for not
addressing “this dispositive point.” But Appellant did not cite Teal in any of her
briefs in this court, and the State cited Teal twice in passing.
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lawsuit, but we disagree with Appellant’s claim that such tampering is not an
offense. Penal code section 37.09 prohibits tampering with evidence if the
person knows that “an investigation or official proceeding is pending or in
progress.” Tex. Penal Code Ann. § 37.09 (Vernon Supp. 2008). An official
proceeding is “any type of administrative, executive, legislative, or judicial
proceeding that may be conducted before a public servant.” Id. § 1.07(a)(33)
(Vernon Supp. 2008). The definition of “official proceeding” does not limit the
term to criminal proceedings. See id. “Public servant” includes a “person who
is authorized by law . . . to hear or determine a cause or controversy”—in other
words, a civil judge. Id. § 1.07(a)(41)(C); see Lebleu v. State, 192 S.W.3d
205, 213 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding evidence
sufficient to sustain conviction for retaliation against public servant when public
servant in question was civil district judge presiding over a civil dispute between
defendant and defendant’s ex-wife). While criminal prosecutions for tampering
with evidence in civil lawsuits are rare, they are not unheard of. See, e.g.,
LeJune v. State, No. 09-98-037-CR, 1999 WL 160674, at *1 (Tex.
App.—Beaumont March 24, 1999, no pet.) (per curiam) (not designated for
publication) (affirming conviction for tampering with evidence in a child custody
case).
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Appellant also argues—for the first time in her reply brief—that the State
is judicially estopped from arguing on appeal that the first indictment alleged an
offense because in the trial court, the State moved to dismiss the first
indictment for failing to state an offense. Judicial estoppel precludes a party
who successfully maintains a position in one proceeding from afterwards
adopting a clearly inconsistent position in another proceeding to obtain an unfair
advantage. Ferguson v. Bldg. Materials Corp., No. 08-0589, 2009 WL
1901639, at *1 (Tex. Jul. 3, 2009) (per curiam); see Schmidt v. State, 278
S.W.3d 353, 358 (Tex. Crim. App. 2009) (“[The] equitable rule of judicial
estoppel generally prevents a party from prevailing in one phase of a case on
an argument and then relying on a contradictory argument to prevail in another
phase.”) (citing New Hampshire v. Maine, 532 U.S. 742, 749–51, 121 S. Ct.
1808, 1814 (2001)). Accordingly, a party cannot be judicially estopped if it did
not “prevail” in the prior action. Ferguson, 2009 WL 1901639 at *1. The
doctrine is not intended to punish inadvertent omissions or inconsistencies but
rather to prevent parties from playing fast and loose with the judicial system for
their own benefit. Id.
In this case, the Appellant moved to quash the first indictment, arguing
that it failed to allege an offense. The State agreed and filed its own motion to
dismiss because “[t]he conduct alleged in the indictment does not constitute an
15
offense.” Under the circumstances, we cannot say that the State “prevailed”
on its motion to dismiss, which simply agreed with Appellant’s motion to
dismiss; if anyone prevailed, it was Appellant, who succeeded in having the
indictment dismissed. Because the State did not “prevail in the prior action,”
it cannot be judicially estopped. See id. We therefore reject Appellant’s judicial
estoppel argument.
Because even a defective first indictment may toll limitations, we overrule
Appellant’s argument that limitations was not tolled by the allegedly defective
first indictment.
E. Same conduct, act, or transaction
Next, Appellant argues that the first indictment did not toll limitations
with regard to the second because the two indictments do not allege the same
conduct, act, or transaction.3
If the prior and subsequent indictments charge different offenses but the
offenses arise from the same conduct, the prior indictment tolls the statute of
limitations. Id. Two indictments arise from the same conduct if they arise from
3
… Appellant made the same argument in Ahmad II, but we did not reach
the argument; instead, we held that the second indictment’s tolling paragraph
sufficed to show that the charged offense was not, at least on its face, barred
by limitations and that Appellant could not challenge the sufficiency of the
tolling paragraph by pretrial writ of habeas corpus. 2007 WL 80013, at *4.
16
the same underlying event or incident. For example, in Hernandez, the court
of criminal appeals held that a prior indictment alleging possession of
amphetamine arose from the same conduct as a subsequent indictment alleging
possession of methamphetamine when both indictments referred to a controlled
substance found on the defendant’s person on a particular date. Id. Likewise,
the Fourteenth Court of Appeals held that in a case where the defendant
induced a minor to masturbate him, a prior indictment alleging indecent
exposure arose from the same conduct as a subsequent indictment alleging
sexual performance of a child. Green v. State, No. 14-08-00075-CR, 2009 WL
136917, at *1 (Tex. App.—Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem.
op., not designated for publication). Similarly, in a case where the evidence at
trial showed that the defendant assaulted and killed a single victim in a single
incident, the Tyler Court of Appeals held that a prior indictment alleging murder
arose from the same incident as a subsequent indictment alleging assault.
Loredo v. State, No. 12-06-00287-CR, 2007 WL 2380346, at *2 (Tex.
App.—Tyler Aug. 22, 2007, no pet.) (mem. op., not designated for publication).
On the other hand, the Beaumont Court of Appeals held that two indictments
“obviously” did not arise from the same conduct when the prior indictment
alleged a robbery committed in September 1998 and the subsequent indictment
17
alleged bail jumping committed in May 2001. Ex parte Martin, 159 S.W.3d
262, 265 (Tex. App.—Beaumont 2005, pet. ref’d).
In this case, the first indictment alleged that Appellant buried a training
bomb on January 26, 2002. The second indictment alleged that Appellant
made a false report about a bomb and possessed a hoax bomb on January 26,
2002. Although the indictments alleged different offenses, the offenses all
arose from the same conduct: Appellant’s possession of and report about some
kind of bomb—hoax, training, or unspecified—on January 26, 2002. In this
regard, this case is much more like Hernandez, Green, and Loredo than it is like
Martin. We therefore hold that the two indictments arose from the same
conduct, and we overrule this part of Appellant’s argument.
F. Sufficiency of tolling paragraph
Finally, Appellant argues that the second indictment’s tolling paragraph
is not sufficiently specific to relate back to the first indictment because it failed
to indicate that the case was previously filed under a particular district court
case number or allege that the indictment was for the same offense as the
second indictment. In Ex parte Smith, the court of criminal appeals held that
the deficiency of a tolling allegation “could be raised only in a pretrial motion
to dismiss or quash” the charging instrument. 178 S.W.3d 797, 805 (Tex.
18
Crim. App. 2005). 4 Because “defects . . . [in a] tolling paragraph . . . do not
destroy a trial court’s power or jurisdiction to proceed, . . . they may not be
raised by means of a pretrial writ of habeas corpus. Instead, they may and
must be raised in a motion to quash or motion to dismiss the pleading.” Id. at
803 (citations omitted). “[A]ny purported defects of form and substance in . . .
the tolling paragraph relate to notice and must be brought to the trial court’s
attention before trial or they are waived.” Id.
Although Appellant referred to the second indictment’s tolling paragraph
in her motion to dismiss the indictment, she did not allege that the tolling
paragraph was insufficiently specific, and the tolling paragraph played no role
in her argument. Appellant also filed a pretrial petition for writ of habeas
corpus, which stated that it “raised the identical issue presented” by her prior
motion to dismiss and made the same argument as the motion to dismiss.5
Appellant did not raise her complaint about the tolling paragraph’s specificity
4
… We note in passing that Appellant relies on this court’s opinion in the
same case to support the merits of her argument. But the court of criminal
appeals reversed our judgment, and on September 26, 2008, the records of the
case were expunged—including our previously published opinion.
5
… Because Appellant’s petition for writ of habeas corpus did not assert
her complaint about the alleged tolling paragraph defects, we need not decide
whether a pretrial habeas petition—even though such defects may not be raised
by means of a pretrial writ—is sufficient to bring the complaint to the trial
court’s attention and thus preserve error for appeal—a possibility not resolved
by Ex parte Smith. See id.
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until after trial in her combined motion for arrest of judgment and for new trial.
By failing to raise her complaint about the tolling paragraph before trial, she
waived it. See id.
G. Conclusion
Because (1) even a defective indictment will toll limitations, (2) the first
and second indictments arose from the same conduct, and (3) Appellant waived
her complaint about the tolling paragraph’s sufficiency, we hold that the trial
court did not err by denying Appellant’s motion to dismiss the second
indictment and did not abuse its discretion by denying her combined motion to
arrest the judgment and for new trial. We overrule Appellant’s first two issues.
II. Legal and Factual Sufficiency
In her third and fourth issues, Appellant argues the evidence was legally
and factually insufficient to support her conviction for possessing a hoax bomb.
The gist of Appellant’s argument is that the evidence showed that the device
she possessed was a “real” practice bomb, not a “hoax” bomb; she states that
“[t]he sole fact at issue is whether the practice bomb was a real bomb or a
hoax bomb.” The State contends that the hoax bomb statute unambiguously
prohibits possession of the device in question, regardless of whether it was a
real bomb, a simulated bomb, or a practice bomb.
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A. The hoax bomb statute
Penal code section 46.08 defines the offense of possession of a hoax
bomb as follows:
A person commits an offense if the person knowingly
manufactures, sells, purchases, transports, or possesses a hoax
bomb with the intent to use the hoax bomb to:
(1) make another believe that the hoax bomb is an explosive
or incendiary device; or
(2) to cause alarm or reaction of any type by an official of a
public safety agency or volunteer agency organized to deal with
emergencies.
Tex. Penal Code Ann. § 46.08(a) (Vernon 2003). Section 46.01(13) defines
“hoax bomb” as
a device that (A) reasonably appears to be an explosive or
incendiary device or (B) by its design causes alarm or reaction of
any type by an official of a public safety agency or a volunteer
agency organized to deal with emergencies.
Id. § 46.01(13) (Vernon Supp. 2008). The code does not define “explosive or
incendiary device,” but it does define “explosive weapon” as
any explosive or incendiary bomb, grenade, rocket, or mine, that is
designed, made, or adapted for the purpose of inflicting serious
bodily injury, death, or substantial property damage, or for the
principal purpose of causing such a loud report as to cause undue
public alarm or terror, and includes a device designed, made, or
adapted for delivery or shooting an explosive weapon.
Id. § 46.01(2).
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B. Can a “real” bomb be a “hoax” bomb?
Appellant focuses on the colloquial meaning of “hoax” and argues that a
real bomb cannot be a hoax bomb because “the core meaning of ‘hoax’ is
. . . falsity.” See Webster’s Ninth New Collegiate Dictionary 574 (1987)
(defining “hoax” as “an act intended to trick or dupe . . . something accepted
or established by fraud or fabrication”). Appellant contends that because the
practice bomb was a “real” bomb, it could not be a false or hoax bomb.
But the statutory definition of hoax bomb is not so constrained. Section
46.01(13) defines “hoax bomb” as a device that (A) reasonably appears to be
an explosive or incendiary device or (B) by its design provokes a public safety
reaction. Tex. Penal Code Ann. § 46.01(13). Both halves of the definition are
broad enough to encompass “real” bombs; neither half is limited to “fake”
bombs. Part (A) of the definition includes a device that reasonably appears to
be an explosive device, regardless of whether it truly is an explosive device or
turns out to be fake. Part (B) of the definition includes a device that by its
design provokes a public safety reaction, regardless of whether the device is a
real bomb or a fake bomb. Despite the legislature’s use of the word “hoax” in
sections 46.01(13) and 46.08, nothing in the penal code suggests that the
22
legislature intended those sections to apply only to fake bombs, 6 and its
expansive definition of “hoax bomb” unambiguously rules out that possibility. 7
Thus, in this case, it makes no difference whether the practice bomb was
a real bomb or a fake bomb as long as the evidence supports the elements of
section 46.01(13) and 46.08. With this in mind, we turn to Appellant’s legal
and factual sufficiency arguments.
6
… In this regard, the Texas hoax bomb law is unique. Four other
states—Florida, Nevada, New Mexico, and West Virginia—prohibit possession
of “hoax” bombs (other states prohibit the possession of devices that appear
to be bombs, but their statutes do not use the word “hoax”). But the relevant
Florida, New Mexico, and West Virginia statutes define “hoax bomb” as a
device that appears to be an explosive device but is, in fact, “an inoperative [or
inert] facsimile or imitation.” Fla. Stat. Ann. § 790.165(1) (West 2008); N.M.
Stat. Ann. § 30-7-20 (West 2008); W. Va. Code Ann. § 61-3E-1(c) (2008).
The Nevada statute defines “hoax bomb” as “(a) An inoperative facsimile or
imitation of an explosive or incendiary device; or (b) A device or object that
appears to be or to contain an explosive or incendiary device.” Nev. Rev. Stat.
Ann. § 202.263(4)(a)-(b) (West 2008). Thus, only Texas law prohibits
possession of a “hoax bomb” without any reference whatsoever to whether the
device is “an inoperative facsimile or imitation” or a real bomb. We note that
the second half of Nevada’s “hoax bomb” definition appears—like both parts
of Texas’s definition—broad enough to include both real and fake bombs that
appear to be real.
7
… Appellant urges us to consider the legislative history of the hoax bomb
statute. But the court of criminal appeals has admonished Texas courts that
“[i]f the plain language of a statute would lead to absurd results, or if the
language is not plain but rather ambiguous, then and only then, out of absolute
necessity, is it constitutionally permissible for a court to consider . . . legislative
history.” Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991).
Because we hold the hoax bomb statute is unambiguous, we need not resort
to its legislative history to guide our analysis.
23
C. Legal and factual sufficiency: standards of review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.
D. The evidence is legally sufficient.
Appellant concedes that she “planted” the practice bomb, which
necessarily means that she also knowingly possessed it. See Tex. Penal Code
24
Ann. § 46.08(a). The State offered into evidence a similar practice bomb (the
State lost the one Appellant possessed) and photographs of other, similar
bombs; they reasonably appear to be explosive devices. The evidence also
shows that the device “caused a reaction of any type” by a public safety
agency, namely, police were dispatched to the location where Appellant said
she found the bomb. Thus, the evidence is legally sufficient to support the
jury’s implied finding that the device was a “hoax bomb” as defined by either
half of section 46.01(13).
The evidence also shows that upon “finding” the bomb, Appellant
attempted to call 9-1-1 and, when she could not do so on her own phone,
asked McCartney to do so. This is some evidence that Appellant possessed the
practice bomb with the intent to cause alarm or a reaction of any type by an
official of a public safety agency organized to deal with emergencies, namely,
the police. The fact that neither of the police officers who were dispatched to
the scene was especially alarmed by the practice bomb is irrelevant; the
question is what Appellant intended, and her 9-1-1 call shows that she intended
to provoke a police reaction.
Considering the evidence in the light most favorable to the prosecution,
we hold that a rational jury could have found beyond a reasonable doubt that
(1) Appellant knowingly possessed a device (2) that reasonably appeared to be
25
an explosive device or by its design caused a reaction of any type by a public
safety agency (3) with the intent to cause a reaction of any type by a public
safety agency. See id. §§ 46.01(13), 46.08(a). Thus, the evidence is legally
sufficient to support her conviction for possession of a hoax bomb, and we
overrule her third issue. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W.3d at 778.
E. The evidence is factually sufficient.
In addition to the foregoing evidence, the record shows that the Corps of
Engineers and other agencies advised residents to call 9-1-1 if they found a
practice bomb. If Appellant had simply found the bomb, then her calling 9-1-1
would not necessarily show that she intended to provoke a public safety
reaction. But if Appellant had simply found the bomb, rather than possessing
it, then her action would not fall within the conduct prohibited by section 46.08
at all. Thus, the testimony about instructions to call 9-1-1 upon discovery of
a bomb does not militate against the jury’s verdict.
Appellant argues that “[p]roof the bomb was harmless is extremely
weak.” But because the penal code does not distinguish between real and fake
bombs in the definition of “hoax bomb,” the State was not required to prove
that the bomb was harmless. Testimony that neither the Corps of Engineers
nor any other agency regarded the practice bombs to be “hoax bombs” in the
26
colloquial sense of “hoax” does not preclude them from being “hoax bombs”
in the statutorily-defined sense. Likewise, evidence that government agencies
warned residents that the practice bombs could be dangerous does not preclude
them from falling within section 46.01(13)’s definition of “hoax bomb.”
Considering all of the evidence in a neutral light, we hold that the
evidence supporting Appellant’s conviction is not so weak, nor the conflicting
evidence so strong, that the jury’s verdict was manifestly unjust. See Lancon,
253 S.W .3d at 704; Watson, 204 S.W.3d at 414–15, 417. Thus, the
evidence is factually sufficient to support Appellant’s conviction, and we
overrule her fourth issue.
III. Decision to Reopen Trial for Additional Testimony
In her fifth issue, Appellant argues that the trial court erred by granting
the State’s motion to reopen the evidence to establish venue.
The State argues that Appellant failed to preserve error by not specifically
objecting at trial. We disagree. Appellant must show she timely presented her
complaint and the grounds therefore to the trial court and obtained an adverse
ruling. Tex. R. App. P. 33.1(a)(1). The objection need not be specific if the
trial judge was aware of the substance of the objection when it was made.
Cooper v. State, 961 S.W.2d 222, 228 (Tex. App.—Houston [1st Dist.] 1997,
pet. ref’d); Kelly v. State, 903 S.W.2d 809, 811 (Tex. App.—Dallas 1995, pet.
27
ref’d). Appellant’s objection, although general, immediately followed a lengthy
discussion of venue, in which she voiced her complaint that there was no
evidence the events took place in Tarrant County. The trial judge was clearly
aware of the substance of the objection. See, e.g., Shedden v. State, 268
S.W.3d 717, 730 (Tex. App.—Corpus Christi 2008, pet. ref’d) (holding no
waiver where, prior to “no objection” statement, the parties had held “a lengthy
discussion about the suppression issues”); see also Alcocer v. State, 256
S.W.3d 398, 402 (Tex. App.—San Antonio 2008, no pet.) (concurring with
judgment on grounds that courtroom discussion apprised trial judge of grounds
of objection because “[p]ublic confidence in our criminal justice system is
eroded when we fail to address the merits of a complaint because we too
broadly construe the rules applicable to waiver.”) (mem. op.) (Hilbig, J.,
concurring). Thus, we will address the merits of Appellant’s claim.
The decision to reopen is left to the sound discretion of the trial court.
Doyle v. State, 24 S.W.3d 598, 601 (Tex. App.—Corpus Christi 2000, pet.
ref’d). The trial judge has the discretion to reopen a case to introduce
additional evidence if that evidence is vital to “due administration of justice.”
Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). The trial judge should
therefore reopen the case if the evidence would materially change the case in
the proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App.
28
2003). A trial court’s decision to reopen and allow the State to prove venue
is not an abuse of discretion. See, e.g., Cox v. State, 494 S.W.2d 574, 575
(Tex. Crim. App. 1973); Martin v. State, 160 Tex. Crim. 364, 366–67, 271
S.W.2d 279, 280 (1954). A trial court’s decision to reopen is discretionary
even when the motion to reopen was responsive to defendant’s motion for
directed verdict. Boatright v. State, 472 S.W.2d 765, 770 (Tex. Crim. App.
1971); Wall v. State, 878 S.W.2d 686, 690 (Tex. App.—Corpus Christi 1994,
pet. ref’d); Wolf v. State, 674 S.W.2d 831, 842 (Tex. App.—Corpus Christi
1984, pet. ref’d), overruled on other grounds, Reed v. State, 744 S.W.2d 112
(Tex. Crim. App. 1988).
Appellant asks this court to create an exception to the trial court’s
discretion to reopen that would prevent the State from waiting until the last
minute to prove the essential elements of the offense. We decline Appellant’s
invitation to depart from settled law. See Garcia v. State, 829 S.W.2d 796,
800 (Tex. Crim. App. 1992) (discouraging courts from “invading the
legislature’s province by reading into the law that which is clearly not there.”),
cert. denied, 538 U.S. 1059 (2003). We note that Appellant herself waited
until the last available moment to object to venue by raising the issue just
before closing arguments. See Hernandez v. State, 198 S.W.3d 257, 268
29
(Tex. App.—San Antonio 2006, pet. ref’d) (stating venue is presumed unless
raised at trial); see also Tex. R. App. P. 44.2(c)(1).
Because the trial court had the discretion to reopen the evidence and
allow the State to prove its venue allegations and Appellant has not shown an
abuse of that discretion, we overrule her fifth issue.
IV. Fair Notice
In her sixth issue, Appellant contends the indictment deprived her of fair
notice of the charges against her as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and article I, section
nineteen of the Texas Constitution.8 We review Appellant’s argument under a
de novo standard because the sufficiency of a charging instrument presents a
question of law. State v. Barbernell, 257 S.W.3d 248, 251–52 (Tex. Crim.
App. 2008)
All defendants have a constitutional right to notice of the specific charge
against them in state and federal courts. Cole v. Arkansas, 333 U.S. 196, 201,
68 S. Ct. 514, 517 (1948). The Sixth Amendment requires that the defendant
8
… Because Appellant has not argued that the protections in the Texas
Constitution exceed or differ from the protections in the United States
Constitution regarding this point, we only address Appellant’s arguments under
the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex.
Crim. App. 1993), cert. denied, 513 U.S. 830 (1994).
30
be apprised of the “nature and cause” of the accusation against him with such
clarity and detail that he can adequately prepare a defense. Moff, 154 S.W.3d
at 601; Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). A
reviewing court therefore looks to the indictment to determine whether notice
was sufficient. See Lawrence, 240 S.W.3d at 916 (applying state and federal
constitutional protections). Indictments that follow the language of the criminal
statute under which a defendant is charged provide adequate notice. Id.
Indictments need not define terms when a statutory definition is available.
State v. Laird, 208 S.W .3d 667, 669 (Tex. App.—Fort Worth 2006, no pet.)
(citing Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988)
(applying state and federal constitutional provisions)).
Appellant’s notice argument, like her sufficiency arguments, hinges on
what she identifies as the distinction between “real” bombs and “hoax” or fake
bombs; she argues that the State indicted her for possessing a hoax bomb but
prosecuted her for possessing a real bomb.
But as we explained in our sufficiency analysis, section 46.01(13) does
not distinguish between real and fake bombs; both can be “hoax” bombs if they
otherwise meet the statutory definition. The State indicted Appellant for
possessing a hoax bomb and prosecuted her for possessing a hoax bomb,
regardless of whether the bomb was real or fake, live or inert. The statutory
31
definition of hoax bomb is broad enough to include real bombs. The indictment
was not required to set out the statutory definition of a hoax bomb. See id.
Thus, the indictment for possessing a hoax bomb was notice to Appellant of
the specific charge against her, even if the evidence showed that the practice
bomb was a real bomb. We overrule Appellant’s sixth issue.
V. Lost Evidence
In Appellant’s final issue, she argues that because the State lost the
practice bomb before trial, the trial court erred by not granting Appellant’s
combined motion in arrest of judgment/motion for new trial. Appellant further
contends the failure to preserve the bomb denied her due course of law under
article I, section nineteen of the Texas constitution.
To preserve her complaint, Appellant was required to submit this issue to
the trial court. See Tex. R. App. P. 33.1(a)(1); Carroll v. State, 266 S.W.3d 1,
3 (Tex. App.—Waco 2008, pet. ref’d). Neither Appellant’s combined motion
in arrest of judgment/motion for new trial nor her motion to quash raised this
argument. Therefore, she forfeited her complaint. See Mendez v. State, 138
S.W.3d 334, 338–39 (Tex. Crim. App. 2004) (en banc); see also Carroll, 266
S.W.3d at 3 (holding that defendant forfeited her spoliation argument by not
raising objection at trial). We overrule Appellant’s seventh issue.
32
Conclusion
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. concurs without opinion.
PUBLISH
DELIVERED: August 26, 2009
33