Ex Parte John Dominick Colyandro ( 2009 )


Menu:
  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    ON MOTION FOR REHEARING
    NO. 03-05-00585-CR
    NO. 03-05-00586-CR
    Ex parte James W. Ellis
    NO. 03-05-00589-CR
    NO. 03-05-00590-CR
    NO. 03-05-00591-CR
    NO. 03-05-00592-CR
    NO. 03-05-00593-CR
    NO. 03-05-00594-CR
    NO. 03-05-00595-CR
    NO. 03-05-00596-CR
    NO. 03-05-00597-CR
    NO. 03-05-00598-CR
    NO. 03-05-00599-CR
    NO. 03-05-00600-CR
    NO. 03-05-00601-CR
    NO. 03-05-00602-CR
    NO. 03-05-00603-CR
    Ex parte John Dominick Colyandro
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
    NOS. D-1-DC-2005-904122, 9040564, 9040570, 9040571, 9040572, 9040573, 9040574,
    9040575, 9040576, 9040577, 9040565, 9040566, 9040567, 9040568, 9040569,
    9040598 & D1DC-05-904121, HONORABLE BOB PERKINS, JUDGE PRESIDING
    SUPPLEMENTAL OPINION
    We write this supplemental opinion to address issues raised by the State’s motion
    for rehearing. We do not withdraw the original opinion.
    In its motion for rehearing, the State contends that this Court erred by considering
    appellants’ challenge to the money-laundering statute as a facial challenge to the constitutionality
    of the statute, arguing that appellants instead raise an as-applied challenge that should not be
    addressed in a pretrial habeas proceeding. The State’s contention is inconsistent with the application
    for writ of habeas corpus filed by appellants and our obligations under United States Supreme Court
    precedent establishing the procedure for examining a facial challenge.
    The State contends that we erred by characterizing appellants’ challenge as a
    facial challenge to the constitutionality of the statute. We agree that we may consider only facial
    challenges on pretrial habeas. See Ex parte Weise, 
    55 S.W.3d 617
    , 620 (Tex. Crim. App. 2001). The
    State’s argument is based in large part on the fact that appellants specify that the statute is vague if
    the definition of funds includes checks.1 Whether checks are within the definition of funds in the
    applicable version of the statute is plainly raised by appellants. The question is whether appellants
    have raised this issue as a purely as-applied challenge that would be inappropriate for review on
    pretrial habeas, or whether they have raised a challenge to the facial constitutionality of the statute.
    Appellants’ attack on the statute is not limited to whether the definition of “funds”
    includes checks, although that is the application that concerns them directly. Appellants assert
    1
    In the original indictment, the State alleged that appellants committed money laundering
    by use of a check. The indictment is so specific to checks that the State reproduced a check in the
    indictment.
    2
    that “the money laundering statute is unconstitutionally vague.”2 They cite the definition of “funds”
    in the applicable version of the statute3 and assert that each of the examples provided is a form of
    cash. Appellants assert that “if money laundering could be committed by check the statute was
    unconstitutionally vague,” but they also argue more generally that the statute is vague because
    “[d]ictionaries offer many and divergent definitions of ‘fund,’ many of which are inconsistent with
    the types of ‘funds’ enumerated in the statute. It would be unconstitutional to charge [appellants]
    with a crime whose elements can be determined only by picking and choosing among dictionary
    definitions.” They argue that the statute is “unconstitutionally vague because it denies fair notice
    that it criminalizes conduct involving property not within the enumerated classes of ‘funds.’”
    Appellants do not contend that the term “funds” is vague only as it is applied in these indictments.
    Their challenge is, in fact, a facial challenge.
    Even if an appellant raises some issues that are not cognizable on pretrial habeas,
    we must address those issues that are raised and are necessary to the resolution of the appeal. See
    Tex. R. App. P. 47.1; see also Ex parte Mattox, 
    683 S.W.2d 93
    , 96 (Tex. App.—Austin 1984,
    pet. ref’d) (addressing facial challenge to the validity of the statute but declining to address allegation
    that indictment was deficient). Regardless of whether certain of appellants’ complaints could be
    2
    Appellants’ discussions of this issue in their briefs reiterates language found in the clerk’s
    record, such as the section in Ellis’s application for writ of habeas corpus entitled “The Texas Money
    Laundering Statutes are Unconstitutionally Vague” and the discussion that ensued regarding the
    meaning of the statutory term “funds.”
    3
    The prosecutions are governed by the money laundering statutes in effect in 2002. See
    Act of May 26, 1993, 73d Leg., R.S., ch. 761, § 2, 1993 Tex. Gen. Laws 2966, 2967 (amended 2005)
    (current version at Tex. Penal Code Ann. § 34.02 (West Supp. 2007)).
    3
    characterized as also raising an as-applied challenge to former penal code section 34.01, we must
    address appellants’ stated and argued facial challenge.
    The State contends that because appellants do not dispute that the statute applies to
    cash transactions, we need not and must not address the appellants’ facial challenge. The State’s
    contention is contrary to United States Supreme Court precedent. The Supreme Court has held that
    if a statute is constitutional in one application, it is not facially invalid. Village of Hoffman Estates
    v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 494-95 (1982). The Supreme Court set out the
    process a court considering a facial challenge must follow:
    In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is
    to determine whether the enactment reaches a substantial amount of constitutionally
    protected conduct. If it does not, then the overbreadth challenge must fail. The court
    should then examine the facial vagueness challenge and, assuming the enactment
    implicates no constitutionally protected conduct, should uphold the challenge only
    if the enactment is impermissibly vague in all of its applications. A plaintiff who
    engages in some conduct that is clearly proscribed cannot complain of the vagueness
    of the law as applied to the conduct of others. A court should therefore examine the
    complainant’s conduct before analyzing other hypothetical applications of the law.
    
    Id. (emphasis added)
    (footnotes omitted). In a footnote, the Supreme Court explained further:
    “[Vagueness] challenges to statutes which do not involve First Amendment freedoms
    must be examined in the light of the facts of the case at hand.” United States
    v. Mazurie, 
    419 U.S. 544
    , 550 (1975). See United States v. Powell, 
    423 U.S. 87
    ,
    92-93 (1975); United States v. National Dairy Products Corp., 
    372 U.S. 29
    , 32-33,
    36 (1963). “One to whose conduct a statute clearly applies may not successfully
    challenge it for vagueness.” Parker v. Levy, 
    417 U.S. 733
    , 756 (1974).
    
    Id. at 495
    n.7; see also 181 South Inc. v. Fischer, 
    454 F.3d 228
    , 235 (3d Cir. 2006). The Supreme
    Court later wrote that a facial challenge is difficult to win because “the challenger must establish
    4
    that no set of circumstances exists under which the Act would be valid.” United States v. Salerno,
    
    481 U.S. 739
    , 745 (1987) (quoted in Combs v. STP Nuclear Operating Co., 
    239 S.W.3d 264
    , 272
    n.8 (Tex. App.—Austin 2007, pet. denied)).
    While the Supreme Court could have, either in Salerno or in a subsequent case,
    overruled or amended Hoffman Estates and announced a process by which courts must begin
    their analysis of a facial challenge by examining hypothetical applications in search of any
    possible scenario under which a statute could be valid, it did not. The State attempts to distinguish
    Hoffman Estates as a First Amendment overbreadth case. It is that, but the relevant language
    quoted above concerned the process for assessing a vagueness challenge. Hoffman 
    Estates, 455 U.S. at 495
    . The Supreme Court does not authorize skipping the threshold analysis of examining
    the complainant’s conduct before analyzing other hypothetical applications of the law. Harmonizing
    these pronouncements, we conclude that a party making a facial vagueness challenge must
    demonstrate that there is no set of circumstances under which the statute would be valid, starting
    with the complainant’s conduct. 
    Salerno, 481 U.S. at 745
    ; Hoffman 
    Estates, 455 U.S. at 494-95
    .
    Contrary to the State’s contention, not only is our examination of whether the term “funds” included
    checks permitted in the course of our evaluation of appellants’ facial challenge to the statute, it is
    required by controlling Supreme Court precedent.
    In its second ground for rehearing, the State contends that this Court failed to apply
    the correct principles of statutory construction when looking beyond the plain language of the
    money-laundering statute. The State contends that the statute gave a person of ordinary intelligence
    5
    fair warning that it criminalized the use of checks as a means of money laundering prior to 2005.
    The State quotes the following language as the standard:
    Only where 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, in arriving at a
    sensible interpretation, such extratextual factors as executive or administrative
    interpretations of the statute or legislative history.” [Boykin v. State, 
    818 S.W.2d 782
    ,] 785-86 [(Tex. Crim. App. 1991)].
    In our original opinion, citing to a 1995 opinion written by former Presiding Judge of the Court of
    Criminal Appeals, John Onion, we stated and followed these precepts in our discussion of statutory
    interpretation.4 Although the State may disagree with the manner in which these principles of
    statutory construction were applied, this Court applied them here.
    The State also objects to our reliance on legal treatises on commercial paper and
    transactions, rather than definitions that it found in a “quick review of several dictionaries” on which
    an ordinary person might rely, to come to the conclusion that a check is a cash equivalent and,
    therefore, a form of “fund” under the statute. State v. Holcombe, 
    187 S.W.3d 496
    , 500 (Tex. Crim.
    App. 2006) (“In determining the plain meaning of a word, we initially look to dictionary
    definitions.”) Our review of representative dictionaries as well as the references supplied by the
    4
    In relevant part, we wrote above as follows:
    When words are not defined, they are ordinarily given their plain meaning unless
    the statute shows that they were used in some other sense. [Ex parte Anderson,
    
    902 S.W.2d 695
    , 699 (Tex. App.—Austin 1995, pet. ref’d)]. In the absence of
    special definitions, statutory language can be measured by common understanding
    and practices or construed in the sense generally understood. 
    Id. 6 State
    does not persuade us to alter our view of the statute. Two dictionaries do not mention the word
    “check” in their definitions of fund at all. See American Heritage Dictionary 533 (1973) (defining
    fund in part as “ready cash”); Webster’s New Twentieth Century Dictionary (2d ed.) (1959). A third
    dictionary mentions checks in the following definition of funds: “money on deposit which is held
    at a specified place and on which checks can be drawn,” which, if anything, highlights the distinction
    between checks and cash rather than equating them. Webster’s Third New International Dictionary
    921 (1986). The definitions of “fund” also include such things as “a sum of money, or stock
    convertible into money held available for the demands of an individual, company or corporation
    engaged in business” (New Twentieth Century), “an organization established to administer a fund,”
    (American Heritage), “a supply of intangible resources (as of information, stories, wisdom, and
    goodwill)” (New International), and others even less like cash. This multiplicity of meanings and
    range of common usage shows that the term “funds” is, at best, ambiguous.5 Consistent with
    legislative and judicial directives,6 we examined the legislative history of both the original enactment
    and the amendment to help discern what the legislature intended to include within the term “funds.”
    The issue of whether the money-laundering statute is facially unconstitutionally vague
    because of ambiguity in the use of the term “funds” was raised by appellants and is before this Court.
    Our examination of whether “funds” included “checks” was required based on the facts of this case
    5
    Ambiguous means “characterized by, suggestive of, or exhibiting ambiguity.” Webster’s
    Third New International Dictionary 66 (1986). Ambiguity means “the condition of admitting of
    two or more meanings, of being understood in more than one way, or referring to two or more things
    at the same time.” 
    Id. Ordinary people
    looking at the State’s motion and our dictionaries would
    find many more than two meanings of the word “funds.”
    6
    See Tex. Gov’t Code Ann. § 311.023 (West 2005); Boykin v. State, 
    818 S.W.2d 782
    , 785-
    86 (Tex. Crim. App. 1991).
    7
    by Supreme Court precedent as part of a facial challenge. See Hoffman 
    Estates, 455 U.S. at 494-95
    .
    Our examination of legislative history is particularly appropriate given the ambiguity of the
    definition of the word “funds.” See 
    Boykin, 818 S.W.2d at 785-86
    . The appellants’ constitutional
    challenge was based on an erroneous interpretation of the statute. The correct interpretation of the
    statute resolves this case without the need to delve into constitutional analysis. The issue is not
    whether checks are the same as cash—they are not—or whether checks can be used as a means of
    exchange—they can. The issue is whether the Legislature criminalized the use of checks as a means
    of money laundering in 1993. The plain language of the statute does not include checks and the
    legislative history is very clear—the Legislature did not criminalize the use of checks as a means of
    money laundering in 1993, but did amend the statute to criminalize it in 2005. We remain persuaded
    that the Legislature chose not to include checks within the scope of the term “funds” when defining
    money laundering in 1993—a conclusion confirmed by the Legislature itself both in its limiting of
    the statute in 1993 and in its broadening of the statute in 2005. Accordingly, the money-laundering
    statute, as enacted prior to 2005, was not vague as asserted by the appellants, and the trial court did
    not err by denying the application for writ of habeas corpus.
    The State’s motion for rehearing is denied.
    G. Alan Waldrop, Justice
    Before Chief Justice Law, Justices Pemberton and Waldrop;
    Chief Justice Law Not Participating
    Filed: March 17, 2009
    Publish
    8