Mauricio Rodriguez Celis v. State ( 2011 )

NUMBERS
13-09-00477-CR
13-09-00478-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MAURICIO RODRIGUEZ CELIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Opinion by Chief Justice Valdez
Appellant, Mauricio Rodriguez Celis, was convicted of fourteen counts of falsely
holding himself out as a lawyer. See TEX. PENAL CODE ANN. § 38.122(a) (West 2003).
By eighteen issues, appellant seeks to reverse his conviction based on challenges to:
(1) the legal sufficiency of the evidence; (2) the denial of his motion for new trial based
on judicial bias; (3) the constitutionality of section 38.122 of the Texas Penal Code; (4)
the jury charge; and (5) the admission and exclusion of evidence. For the reasons set
forth below, we overrule appellant‟s issues and affirm the judgments of the trial court.
I. BACKGROUND
By two indictments,1 appellant was charged with 23 counts of falsely holding
himself out as a lawyer in violation of section 38.122(a) of the Texas Penal Code. See
id. A jury trial was held in the 148th Judicial District Court of Nueces County with Judge
Mark Luitjen presiding by appointment. At trial, the State offered the testimony of 20
witnesses and over 100 exhibits, including appellant‟s sworn testimony in a civil case.
In presenting his defense, appellant relied upon many of the same witnesses and
exhibits and, in addition, offered the testimony of three other witnesses.
The evidence established that appellant held himself out as a lawyer with CGT
Law Group International, LLP, a law firm located in Nueces County, Texas founded by
appellant and others. Appellant has not been admitted to the practice of law in Texas.
Although appellant described himself as a lawyer from Mexico, he is not certified as a
foreign legal consultant. According to the testimony of Josh Hensley, the Director of
Eligibility and Examination of the Texas Board of Law Examiners, a person who has a
certificate as a foreign legal consultant is considered to be affiliated with the State Bar of
Texas, and is allowed to have a law practice limited to advising clients about the laws of
Mexico while maintaining an office in Texas. The Texas Board of Law Examiners
requires attorneys from Mexico to produce a “cedula” as evidence of the person‟s ability
1
In trial court cause no. 07-CR-4046-E, appellant was indicted for seven (7) counts of falsely
holding himself out as a lawyer. See TEX. PENAL CODE ANN. § 38.122(a). In trial court cause no. 08-CR-
1365-E, appellant was indicted for sixteen (16) counts of falsely holding himself out as a lawyer. See id.
2
to practice law in Mexico, as well as a certificate from Mexico‟s Ministry of Education
stating that the person is currently meeting the requirement to be a lawyer in Mexico.
The evidence, including appellant‟s sworn testimony, established that appellant
does not have a cedula. Nevertheless, when asked, “[A]re you a nonlawyer or are you
a lawyer?” appellant testified, “I am a lawyer in Mexico. . . . I‟m considered a lawyer in
Mexico.” According to appellant, “The Constitution does not require that you be a
licensed attorney or have a diploma in law to practice law in Mexico.” Appellant testified
that although he has a diploma in judicial sciences, it has never been registered with the
Ministry of Education, which is required to obtain a cedula.
Appellant called two witnesses to testify about the requirements to practice law in
Mexico. The first witness, Jose Martin de Valenzuela Hernandez, an attorney with
appellant‟s law firm (who has a cedula), testified that it is not necessary to go to law
school and obtain a law license to practice law in Mexico. Hernandez testified that “[t]he
cedula is not a license.” According to Hernandez, “that‟s what the law in Mexico is . . . .
Anybody who goes and wants to practice in the four areas of amparo, employment law,
agrarian law, and criminal law can do that. Anybody here can do that. And they can go
to Mexico and try it.” On cross-examination, the State asked Hernandez, “So, every
single Mexican citizen is licensed to practice law?” to which Hernandez replied, “As long
as they‟re not liars and they‟re not mentally incompetent . . . . The law establishes it as
such for everyone.” The State also asked Hernandez, “Under this particular statute,
everybody in Mexico is authorized to practice law, is that right?” and Hernandez
answered, “That‟s correct.” Later, Hernandez testified that appellant is a “licenciado,” a
term which he described as a synonym for attorney, based on a law that applies “to
3
every single Mexican citizen.” The State asked Hernandez, “So every Mexican citizen
is a licenciado?” to which Hernandez replied, “If you want to look at it that way, you
have a license under the constitution and laws, yes.”
The second witness called by appellant, Hector Rene Valdez Diaz (who also has
a cedula), gave testimony consistent with Hernandez‟s testimony. Diaz is a personal
secretary for the Chief Justice of the Supreme Court of Justice of the State of
Chihuahua. On cross-examination, the State asked Diaz, “So what you‟re telling this
jury is that all Mexican citizens who are of legal age and of sound mind are licensed to
practice law in Mexico?” to which Diaz replied, “In these areas [referring to amparo,
employment law, agrarian law, and criminal law], yes.”
The jury returned a verdict of guilty on 14 counts: (1) stating on a business card
that he was licensed in Mexico (count 2 in Cause No. 07-CR-4046-E, submitted to the
jury as count 1); (2) being described on a business webpage as an attorney at law and
a licensed attorney in Mexico (count 5 in Cause No. 07-CR-4046-E, submitted to the
jury as count 4); (3) signing a legal document in a place designated for an attorney‟s
signature (count 6 in Cause No. 07-CR-4046-E, submitted to jury as count 5); (4) stating
that he was a lawyer, that he had been admitted to the bar in the year 2000, that he had
been in the full time practice of law for 6 years and that he was a member in good
standing of the state bar of Mexico, in an insured supplement application for lawyer‟s
professional liability insurance (count 2 in Cause No. 08-CR-1365-E); (5) stating that he
was a lawyer, that he had been admitted to the bar in the year 2000, that he had been
in the full time practice of law for 7 years and that he was a member in good standing of
the state bar of Mexico, in an insured supplement application for lawyer‟s professional
4
liability insurance (count 3 in Cause No. 08-CR-1365-E); (6) accepting a check in the
amount of $84,286.15 as attorney‟s fees (count 6 in Cause No. 08-CR-1365-E); (7)
accepting a check in the amount of $100,020.83 as attorney‟s fees (count 7 in Cause
No. 08-CR-1365-E); (8) accepting a check in the amount of $80,000.00 as attorney‟s
fees (count 8 in Cause No. 08-CR-1365-E); (9) accepting a check in the amount of
$286,000.00 as attorney‟s fees (count 9 in Cause No. 08-CR-1365-E); (10) accepting a
check in the amount of $27,000.00 as attorney‟s fees (count 10 in Cause No. 08-CR-
1365-E); (11) accepting a check in the amount of $122,500.00 as attorney‟s fees (count
11 in Cause No. 08-CR-1365-E); (12) accepting a check in the amount of $157,500.00
as attorney‟s fees (count 12 in Cause No. 08-CR-1365-E); (13) accepting a check in the
amount of $440,000.00 as attorney‟s fees (count 13 in Cause No. 08-CR-1365-E); and
(14) accepting a check in the amount of $37,789.53 as attorney‟s fees (count 14 in
Cause No. 08-CR-1365-E).
The jury assessed a ten-year prison sentence and $10,000 fine as punishment
for each offense. The jury recommended that the prison sentence be suspended and
that appellant be placed on community supervision. Judge Luitjen did not sentence
appellant at that time, but instead ordered the preparation of a presentence report.
Subsequently, on March 26, 2009, Judge Luitjen reconvened the proceedings to
consider, among other things, the State‟s request for restitution. Although appellant had
not yet been sentenced, the court certified appellant‟s right of appeal and set bond at
$700,000.
On April 24, 2009, before sentencing had taken place, appellant filed a motion to
recuse Judge Luitjen based on allegations of judicial bias involving the judge‟s
5
courtroom behavior. In support of the motion, appellant attached affidavits from seven
of the jurors who served on the case. In their affidavits, each of the jurors expressed an
opinion that based on what he or she had observed during the trial, Judge Luitjen was
biased against appellant and his counsel. The same affidavits were also attached in
support of appellant‟s motion for new trial, which was filed at the same time as the
motion to recuse. Appellant‟s motion for new trial requested relief based on structural
error involving the same allegations of judicial bias made in the motion to recuse.
On May 15, 2009, Judge Manuel Banales, then the presiding judge of the Fifth
Administrative Judicial Region of Texas, held a hearing on appellant‟s motion to recuse.
Six of the seven jurors whose affidavits had been relied upon by appellant were called
as witnesses at the hearing and gave testimony verifying the statements made in the
affidavits. At the conclusion of the hearing, Judge Banales granted the motion to recuse
and assigned himself to the case. Subsequently, Judge Banales accepted the jury‟s
assessment of punishment on all fourteen counts, suspended the prison term, imposed
community supervision for a term of ten years, and assessed a single fine in the amount
of $10,000.2
On June 24, 2009, the State filed a motion to recuse Judge Banales. Chief
Justice Wallace Jefferson of the Texas Supreme Court appointed the Honorable Louis
Sterns to preside over the motion to recuse. After holding an evidentiary hearing, Judge
Sterns granted the motion to recuse and the Honorable Sid Harle was appointed to
preside over the case.
2
Although appellant‟s motion for new trial was pending, Judge Banales proceeded to sentence
appellant without ruling on the motion.
6
On August 3, 2009, a hearing was held on appellant‟s motion for new trial. At the
hearing, appellant argued that he was entitled to a new trial based on structural error
involving judicial bias. Appellant offered the juror affidavits and a transcript of the
recusal hearing as evidence. In opposing the motion, the State argued that the trial
court had no authority to grant a new trial based on judicial bias and that, in any event,
appellant had not established judicial bias. The trial court denied the motion for new
trial. This appeal ensued.
II. LEGAL SUFFICIENCY OF THE EVIDENCE
In issues sixteen through eighteen, appellant challenges the legal sufficiency of
the evidence to support his conviction on all fourteen counts.3
A. Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence, we view all the evidence in the
light most favorable to the verdict in order to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693
(Tex. Crim. App. 2005). The sufficiency of the evidence is measured by the elements of
the hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997). Such a charge would be one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily restrict the State‟s theories
of liability, and adequately describes the particular offense for which the defendant was
tried. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W.2d at 240. The law as authorized by the indictment means the statutory elements
3
We address appellant‟s legal sufficiency issues out of the order in which they are presented in
appellant‟s brief because, if sustained, they would entitle appellant to an acquittal, thereby rendering his
other issues moot. See TEX. R. APP. P. 47.1.
7
of the charged offense as modified by the charging instrument. See Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000).
Section 38.122(a) of the Texas Penal Code states as follows:
A person commits an offense if, with intent to obtain an economic benefit
for himself or herself, the person holds himself or herself out as a lawyer,
unless he or she is currently licensed to practice law in this state, another
state, or a foreign country and is in good standing with the State Bar of
Texas and the state bar or licensing authority of any and all other states
and foreign countries where licensed.
TEX. PENAL CODE ANN. § 38.122(a). In this case, the elements of the hypothetically
correct jury charge are as follows: (1) a person held himself out as a lawyer with intent
to obtain an economic benefit for himself; and (2) the person was not (a) currently
licensed to practice law in this state, another state, or a foreign country, (b) in good
standing with the State Bar of Texas, or (c) in good standing with the state bar or
licensing authority of any and all other states and foreign countries where licensed. See
id.
B. Licensure in Another State
In his sixteenth issue, appellant argues that he is entitled to a judgment of
acquittal on all fourteen counts because the evidence is legally insufficient to prove that
he was not licensed in another state. Appellant assumes, incorrectly, that the lack of
licensure in another state is an essential element of the offense of falsely holding
oneself out as a lawyer. See TEX. PENAL CODE ANN. § 1.07(22) (West Supp. 2010)
(“„Element of offense‟ means: (A) the forbidden conduct; (B) the required culpability; (C)
any required result; and (D) the negation of any exception to the offense.”). Appellant
suggests that licensure in another state is an exception to the offense that must be
negated, but the statute does not label licensure in another state as an exception to the
8
offense. See TEX. PENAL CODE ANN. § 2.02(a) (West 2003) (“An exception to an offense
in this code is so labeled by the phrase: „It is an exception to the application of. . . .‟”).
In other cases involving this offense, the legal sufficiency of the evidence has
been upheld without consideration of whether the defendant was licensed in another
state and even where the evidence showed the defendant was licensed in another
state. See Satterwhite v. State, 979 S.W.2d 626, 628-29 (Tex. Crim. App. 1998)
(affirming conviction of Texas attorney based on lack of “good standing” with State Bar
of Texas); Ellis v. State, No. 14-99-00511-CR, 1999 Tex. App. LEXIS 7464 **3-4 (Tex.
App.—Houston [14th Dist.] Oct. 7, 1999, pet. ref‟d) (not designated for publication)
(“The record in this case clearly shows that Appellant has been disbarred by the State
Bar of Texas; therefore, he is not in „good standing‟ with the State Bar of Texas. It would
be absurd to suggest that a person who has been disbarred from practicing law in
Texas could rely on a law license issued by another state as a means to circumvent the
disbarment and continue to hold himself or herself out as a lawyer in Texas.”).
Moreover, we disagree with appellant‟s assertion that there was no evidence that
he was not licensed in another state. Appellant was asked, “[A]re you a nonlawyer or
are you a lawyer?” to which appellant replied, “I am a lawyer in Mexico. . . . I‟m
considered a lawyer in Mexico.” Any rational trier of fact could have found that
appellant was not licensed in another state based on his answer, which necessarily
implied that Mexico is the only place where he claims to be licensed to practice law.
Accordingly, we conclude that there is no merit to appellant‟s sixteenth issue, and it is
therefore overruled.
C. Venue
9
In his seventeenth issue, appellant contends that the evidence was legally
insufficient to prove venue in Nueces County as to counts 2 and 3 of Cause No. 08-CR-
1365-E, which involved statements made in an insured supplement application for
lawyer‟s professional malpractice insurance. Appellant argues that the State failed to
offer any evidence that he was physically located in Nueces County when he signed the
insurance applications.
Venue is not a “criminative fact” and thus, not a constituent element of the
offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). Therefore, it
need not be proven beyond a reasonable doubt, but rather, by a preponderance of
evidence. Id.; see also TEX. CODE CRIM. PROC. ANN. art. 13.17 (West 2005) (“To sustain
the allegation of venue, it shall only be necessary to prove by the preponderance of the
evidence that by reason of the facts in the case, the county where such prosecution is
carried on has venue.”). Where, as here, there is not a special venue statute applicable
to the charged offense, the proper venue for the prosecution is the county in which the
offense was committed. TEX. CODE CRIM. PROC. ANN. art. 13.18 (West 2005).
In this case, the evidence established that appellant held himself out as a lawyer
with the law firm CGT Law Group International, LLP. The evidence also established
that appellant used the firm‟s office in Nueces County as his principal place of business
for conducting these activities. The firm‟s address in Nueces County is the only address
listed on appellant‟s business card. Although the firm‟s letterhead also lists an address
in Washington D.C., Doug Gwyther, an attorney with the firm, testified that appellant did
not have a permanent office in Washington D.C. and went there only a “couple of
times.” Based on the foregoing circumstantial evidence concerning the extent to which
10
appellant conducted his business activities in Nueces County to the exclusion of other
locations, a rational trier of fact could find by a preponderance of the evidence that
appellant was in Nueces County when he signed the applications for malpractice
insurance. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“Direct
and circumstantial evidence are treated equally: Circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.”); Taylor v. State, 684 S.W.2d 682, 684 (Tex.
Crim. App. 1984) (“Direct evidence directly demonstrates the ultimate fact to be proven,
whereas circumstantial evidence is direct proof of a secondary fact which, by logical
inference, demonstrates the ultimate fact to be proven.”). Appellant‟s seventeenth issue
is overruled.
D. The “Check” Counts
In his eighteenth issue, appellant argues that he is entitled to an acquittal on
counts 6 through 14 in Cause No. 08-CR-1365-E because evidence that he accepted
checks for attorney‟s fees from the Owen & Associates law firm is not legally sufficient
to prove that he held himself out as a lawyer. We disagree. The manner or means by
which a person holds himself out as a lawyer is not material and, therefore, would not
be included in a hypothetically correct charge. Rodriguez v. State, 336 S.W.3d 294, 299
(Tex. App.—San Antonio 2010, pet. ref‟d).
In this case, the evidence established that appellant held himself out as a lawyer
from Mexico in order to engage in fee-sharing activities with other lawyers. At trial, the
witnesses for the State included James Ehler, the Deputy Chief Counsel for the Chief
Disciplinary Counsel‟s Office of the State Bar of Texas, who testified that when a person
11
accepts a check for attorney‟s fees, he is making a representation that he is a licensed
lawyer in the state where he is accepting the fee. Another witness called at trial was
Lee Trujillo, the accountant who prepared the checks for the Owen & Associates law
firm. The memo line on each check (with one exception) stated that the payment was
for attorney‟s fees and provided the last name of the client whose case had been
settled. Financial statements prepared by Trujillo were offered as evidence to establish
the fee-sharing arrangement that resulted in the check payments to appellant for
attorney‟s fees. Trujillo testified that he believed appellant was an attorney when the
fee-sharing activities were taking place. Based on this testimony and evidence, any
rational trier of fact could have found that appellant held himself out as a lawyer as
alleged in each of the counts.
Appellant‟s eighteenth issue is overruled.
III. MOTION FOR NEW TRIAL
Issues one through six are argued together in appellant‟s brief.4 In issues one
and two, appellant complains that Judge Luitjen was biased against him in violation of
the constitutional guarantees of due process of law. In issues three and four, appellant
complains that Judge Luitjen‟s bias deprived him of his rights to a reliable jury verdict
and effective assistance of counsel. In issue five, appellant complains that Judge
Luitjen‟s bias violated article 38.05 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 38.05 (West 1979). In issue six, appellant argues that the
4
We will address issues one through six together because appellant has not argued them as
separate issues and because issues one through five are subsidiary issues fairly included in issue six.
See TEX. R. APP. P. 38.1(f) (“The statement of an issue will be treated as covering every subsidiary
question that is fairly included.”).
12
trial court abused its discretion in denying his motion for new trial, which sought relief
based on the allegations of judicial bias raised in issues one through five.
A. Standard of Review
We review the denial of a motion for new trial for abuse of discretion. See Webb
v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the
light most favorable to the trial court‟s ruling and uphold the trial court‟s ruling if it was
within the zone of reasonable disagreement. Id. We do not substitute our judgment for
that of the trial court, but rather we decide whether the trial court‟s decision was
arbitrary or unreasonable. Id. Thus, a trial court abuses its discretion in denying a
motion for new trial only when no reasonable view of the record could support the trial
court‟s ruling. Id.
B. Judicial Bias
In issues one and two, appellant argues that he is entitled to a new trial because
Judge Luitjen was biased against him in violation of the U.S. Constitution‟s guarantees
of due process of law.5
1. Applicable Law
The Due Process Clause guarantees a defendant a fair trial in a fair tribunal
before a judge with no actual bias against the defendant or interest in the outcome of
his particular case. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). The Due Process
Clause has been implemented by objective standards that do not require proof of actual
bias. Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2263 (2009). In pursuit
5
Although appellant‟s statement of the issues presented also refers to violations of his rights
under the Constitution of the State of Texas, his brief does not include a clear and concise argument for
the contentions made with appropriate citations to authorities. See TEX. R. APP. P. 38.1(i). Accordingly,
we will not address those contentions.
13
of this end, various situations have been identified in which experience teaches that the
probability of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable. Withrow v. Larkin, 421 U.S. 35, 47 (1975). A judge is
constitutionally unacceptable when: (1) the judge has a direct personal, substantial,
and pecuniary interest in the outcome of the case; (2) the judge has been the target of
personal abuse or criticism from the party before him; or (3) the judge has the dual role
of investigating and adjudicating disputes and complaints. Bigby v. Dretke, 402 F.3d
551, 559 (5th Cir. 2005).
In addition, the United States Supreme Court has noted that “predispositions
developed during the course of a trial will sometimes (albeit rarely) suffice” to establish
judicial bias. Liteky v. United States, 510 U.S. 540, 554 (1994). “[O]pinions formed by
the judge on the basis of facts introduced or events occurring during the course of the
current proceedings, or prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Id. at 555. “[J]udicial remarks during the course of a
trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.” Id. “They may do so if
they reveal an opinion that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as to make fair judgment
impossible.” Id. “Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women, even . . . judges, sometimes display.” Id. at 555-56.
“A judge‟s ordinary efforts at courtroom administration—even a stern and short-
14
tempered judge‟s ordinary efforts at courtroom administration—remain immune.” Id. at
556.
2. Discussion
Applying the principles set forth above to the facts of this case, we note that
appellant has not alleged that Judge Luitjen was constitutionally unacceptable because
he has: (1) a direct personal, substantial, and pecuniary interest in the outcome of the
case; (2) been the target of personal abuse or criticism from the party before him; or (3)
the dual role of investigating and adjudicating disputes and complaints. See Bigby, 402
F.3d at 559. Appellant‟s challenge to Judge Luitjen is based solely on allegations that
the judge displayed bias in the courtroom. Specifically, appellant argues that Judge
Luitjen displayed bias through “any number of nuances from the judge‟s tone of voice,
demeanor, facial expressions, attitude, conduct and words, none of which in and of
themselves were necessarily independently objectionable, let alone reflected in the cold
appellate record.” APPELLANT‟S BRIEF at 15-16, n. 61. Appellant has not alleged that the
bias arose from or was influenced by an extrajudicial source. See Liteky, 510 U.S. at
554-55. Thus, under these circumstances, appellant was required to prove that the
judge‟s behavior “reveal[ed] such a high degree of favoritism or antagonism as to make
fair judgment impossible.” Id. at 555. Appellant has not met this burden.
As a preliminary matter, we are confronted by the inherent limitations of the
appellate record, which as appellant correctly observes, ordinarily does not reflect the
trial judge‟s tone of voice, demeanor, and facial expressions. While in most cases there
might be no reason to build a record of such things, it is certainly possible for counsel to
make an objection to the inappropriateness of a judge‟s tone of voice, demeanor, or
15
facial expression. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“As
regards specificity [of an objection], all a party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why he thinks himself
entitled to it, and to do so clearly enough for the judge to understand him at a time when
the trial court is in a proper position to do something about it.”). Furthermore, in an
extreme case such as this, where these subtleties are asserted as grounds for a new
trial, a timely and specific objection would have alerted the trial court to the issue,
created a record of what took place, and ensured the issue was preserved for appellate
review. See TEX. R. APP. P. 33.1(a)(1) (“As prerequisite to presenting a complaint for
appellate review, the record must show that the complaint was made to the trial court by
a timely request, objection, or motion . . . .”).
According to appellant, there was no need to object because none of the
allegedly improper aspects of the judge‟s courtroom conduct—i.e., the judge‟s tone of
voice, demeanor, and facial expressions—were independently objectionable.
APPELLANT‟S BRIEF at 15-16, n. 61. Thus, while appellant maintains that Judge Luitjen
did nothing inappropriate to warrant even a single objection, appellant argues that the
various nuances in the judge‟s courtroom behavior worked together to create a
“synergistic effect” that deprived appellant of due process of law. Furthermore,
appellant argues that because the plurality opinion in Blue held that “the comments of
the trial judge, which tainted appellant‟s presumption of innocence in front of the venire,
were fundamental error of constitutional dimension and required no objection,” it was
not necessary for him to make any objections to preserve this issue for appeal. Blue v.
State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.).
16
In Blue, the trial judge made specific comments that “imparted information to the
venire that tainted the presumption of innocence.” Id. at 132. The jury learned “at the
outset that the defendant seriously considered entering into a plea agreement . . . [and]
hear[d] the judge say that he would have preferred that the defendant plead guilty.” Id.
The judge “also blamed [the defendant] for the delay that was costing the venire time
and money.” Id. at 138 (Keasler, J., concurring). The Texas Court of Criminal Appeals
held that the judge‟s comments “vitiated the presumption of innocence before the
venire, adversely affecting appellant‟s right to a fair trial.” Id. at 132. Specifically, by
disclosing that the defendant had given serious consideration to a plea agreement, the
judge‟s comments precluded the jury from beginning with a presumption that the
defendant was innocent. Id. In addition, by telling the jury that “he would have
preferred that the defendant plead guilty,” the judge provided a basis on which a juror
“might assume that the judge knows something about the guilt of the defendant that the
juror does not. Surely, no trial judge would want an innocent man to plead guilty, no
matter how much delay and expense he might be causing.” Id.
Unlike Blue, this is not one of the “few cases where the judge‟s statements when
viewed objectively are so egregious as to render him biased.” Blue, 41 S.W.3d at 138
(Keasler, J., concurring). In fact, appellant has not directed our attention to any
comment by the trial judge that allegedly tainted the presumption of innocence. While
the record in Blue included the judge‟s statements, there is no comparable record in this
case for the Court to conduct an objective review. As appellant concedes in his brief,
“at least the judge‟s words (in Blue) were on the record and capable of being raised on
appeal, whereas Judge Luitjen‟s actions, tone of voice, demeanor, facial expressions,
17
attitude and conduct during trial are not reflected by the cold appellate record . . . .”
APPELLANT‟S BRIEF at 20 n.71.
At the hearing on appellant‟s motion for new trial, appellant did not call any
witnesses, but he did present evidence that included affidavits from seven of the jurors
who served on the case. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App.
2009) (“[T]he opportunity to prepare a record for appellate review makes a hearing on a
motion for new trial a critical stage. . . . ”). In the affidavits, each of the jurors expressed
an opinion that based on what he or she had observed in the courtroom, the trial judge
was biased against appellant and his counsel. In addition to the “nuances” previously
discussed, such as the judge‟s tone of voice and facial expressions, the juror affidavits
noted that the judge “seemed to rule against the defense team and for the prosecution
team when ruling on all of the objections,” “seemed to rush the defense,” “seemed as if
he . . . was not listening when the defense put on some of their witnesses,” and
“appeared bothered when the defense‟s witnesses from Mexico testified because of
their lack of knowledge of the English language and the translation problems that this
caused.” While appellant acknowledges “the absence of Texas criminal cases directly
on point,” he maintains that the juror affidavits are sufficient to prove beyond a
reasonable doubt that Judge Luitjen was biased. APPELLANT‟S BRIEF at 19.6 We
disagree.
6
On appeal, appellant argues that because the State did not offer any contrary evidence at the
hearing, the trial court was required to accept the juror affidavits and grant the motion for new trial. We
disagree. At a hearing on a motion for new trial, the trial court has the discretion to accept or reject any
part of a witness‟s testimony. See Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978) (noting
that, at a motion for new trial hearing, the trial judge has “the right to accept or reject any part of” a
witness‟s testimony). Therefore, we reject appellant‟s contention that the trial court had no discretion to
disregard the juror affidavits because the State failed to offer contrary evidence at the hearing. See id.
18
Bias by an adjudicator is not lightly established. Valley v. Rapides Parish Sch.
Bd., 118 F.3d 1047, 1052 (5th Cir. 1997); United States v. Guglielmini, 384 F.2d 602,
605 (2d Cir. 1967) (“Few claims are more difficult to resolve than the claim that the trial
judge, presiding over a jury trial, has thrown his weight in favor of one side to such an
extent that it cannot be said that the trial has been a fair one.”). Although seven jurors
stated their opinion that Judge Luitjen was biased, none explained what he or she
understood “bias” to mean. That each of the jurors shared the same understanding
remains an open question; however, it is clear that the jurors did not share a correct
understanding.
In their affidavits, each of the jurors articulated one or more invalid reasons for
concluding that Judge Luitjen was biased. For instance, many of the jurors offered
Judge Luitjen‟s evidentiary rulings as a reason for believing that he was biased against
appellant, but judicial rulings almost never constitute a valid basis for a bias or partiality
challenge. See Liteky, 510 U.S. at 555; Sommers v. Concepcion, 20 S.W.3d 27, 41
(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“A party‟s remedy for unfair rulings
is to assign error regarding the adverse rulings.”). Another inappropriate reason cited
by many of the jurors was that Judge Luitjen “seemed to rush the defense” and
“seemed as if he . . . was not listening” or “appeared bothered when the defense‟s
witnesses from Mexico were testifying.” These observations pertain to Judge Luitjen‟s
efforts at courtroom administration, which are not a valid basis for finding judicial bias,
even if they displayed or included “expressions of impatience, dissatisfaction,
annoyance, and even anger.” Liteky, 510 U.S. at 555-56.
19
After eliminating from consideration the invalid grounds for finding judicial bias in
the juror affidavits, it is unclear whether any of the jurors would conclude that Judge
Luitjen was biased. If so, any such conclusion would rest on the same subtleties in the
judge‟s courtroom behavior to which appellant failed to object at trial. It is well
established that subtleties and nuances in a judge‟s behavior—even those manifesting
animosity—are insufficient to establish bias. Liteky, 510 U.S. at 556 n.3 (“When
intrajudicial behavior is at issue, manifestations of animosity must be much more than
subtle to establish bias.”). Accordingly, appellant‟s first and second issues are
overruled.
E. Rights to a Reliable Jury Verdict and Effective Assistance of Counsel
In issues three and four, appellant argues that Judge Luitjen‟s bias violated his
rights to a reliable jury verdict and effective assistance of counsel. In addressing
appellant‟s first and second issues, we have concluded that appellant has failed to
establish judicial bias. Accordingly, because appellant‟s third and fourth issues are
premised on the existence of judicial bias, those issues are overruled.
F. Violation of Article 38.05 of the Texas Code of Criminal Procedure
In issue five, appellant argues that Judge Luitjen‟s bias violated article 38.05 of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (“In
ruling upon the admissibility of evidence, the judge shall not discuss or comment upon
the weight of the same or its bearing in the case, but shall simply decide whether or not
it is admissible. . . . [N]or shall [a judge], at any stage of the proceeding previous to the
return of the verdict, make any remark calculated to convey to the jury his opinion of the
case.”).
20
As noted above, appellant has not complained about any specific remark that the
judge made that was calculated to convey to the jury his opinion of the case. Nor has
appellant identified any instances in which, in ruling on the admissibility of evidence, the
judge discussed or commented on the weight of the evidence or its bearing in the case.
See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.
App.—Dallas 1987, writ ref'd n.r.e.) (en banc) (“This court is not required to search the
record for evidence supporting a litigant‟s position under particular points of error . . . .”).
Furthermore, there is no indication that appellant objected to any improper comments
that the trial judge may have made. See Smith v. State, 595 S.W.2d 120, 124 (Tex.
Crim. App. 1980) (“Failure to object to this alleged comment preserves nothing for
review.”).
On this record, we have no basis to conclude that the trial judge did anything
other than carry out its duties involving courtroom administration and ruling upon the
admissibility of evidence. See Smith, 595 S.W.2d at 123-24 (“The court merely carried
out its duty in ruling upon appellant‟s objection and did not embellish the ruling with an
unwarranted comment.”); Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—Houston
[14th Dist.] 2006, no pet.) (“The trial court improperly comments on the weight of the
evidence if it makes a statement that implies approval of the State‟s argument, indicates
disbelief in the defense‟s position, or diminishes the credibility of the defense‟s
approach to the case.”). There is no basis for finding reversible error. See Becknell v.
State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986) (“To constitute reversible error, the
trial court‟s comment to the jury must be such that it is reasonably calculated to benefit
21
the State or to prejudice the rights of the defendant.”). Accordingly, appellant‟s fifth
issue is overruled.
G. Conclusion
In issue six, appellant contends that the trial court abused its discretion in
denying his motion for new trial based on the allegations of judicial bias discussed in
issues one through five. We have overruled issues one through five because appellant
has not established judicial bias. Accordingly, we conclude that the trial court did not
abuse its discretion in denying appellant‟s motion for new trial. Appellant‟s sixth issue is
overruled.
IV. JURY CHARGE ERROR
In issues seven through nine, appellant complains of errors in the jury charge
involving the culpable mental state required in the application paragraphs, the omission
of a requested instruction on the defensive issue of mistake of fact, and the inclusion of
“foreign legal consultant” in the charge definition of “good standing with the State Bar of
Texas.”
A. Standard of Review and Applicable Law
Article 36.14 of the Texas Code of Criminal Procedure requires that a trial court
provide a jury charge “distinctly setting forth the law applicable to the case.” TEX. CODE
CRIM. PROC. art 36.14 (West 2007). The charge must contain an accurate statement of
the law and must set out all the essential elements of the offense. Dinkins v. State, 894
S.W.2d 330, 339 (Tex. Crim. App. 1995). A jury charge is fundamentally defective if it
omits an essential element of the offense or authorizes conviction on a set of facts that
22
do not constitute an offense. Zuckerman v. State, 591 S.W.2d 495, 496 (Tex. Crim.
App. 1979).
The standards for appellate review of error in the court‟s charge are set forth in
article 36.19 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 36.19 (West 2006). When a defendant properly objected to the charge, the
applicable statutory standard is whether “the error appearing from the record was
calculated to injure the rights of the defendant,” or in other words, whether there was
“some harm.” Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003).
“[U]nobjected-to jury-charge error warrants reversal only when the error results in
egregious harm.” Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).
“Egregious harm is a difficult standard to prove and such a determination must be done
on a case-by-case basis.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).
Under this standard, reversible error occurs only when a defendant has been denied “a
fair and impartial trial.” Oursbourn v. State, 259 S.W.3d 159, 182 (Tex. Crim. App.
2008). “Jury-charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.” Stuhler
v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). An appellate court “makes its
own assessment” in evaluating what effect, if any, an error had on the jury‟s verdict by
looking “only to the record before it.” Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim.
App. 2000). Our review for egregious harm requires consideration of the entire charge,
the evidence including the contested issues and weight of the probative evidence, the
arguments of counsel, and any other relevant information revealed by the record of the
trial as a whole. Scott v. State, 253 S.W.3d 736, 742 (Tex. App.—Amarillo 2007, pet.
23
ref‟d). The record must show the defendant suffered actual, rather than merely
theoretical, harm from the jury instruction error. Almanza v. State, 686 S.W.2d 157, 174
(Tex. Crim. App. 1985) (op. on reh‟g).
B. Culpable Mental State for the Offense
In issue seven, appellant argues that the trial court erred in denying his proposed
application paragraphs for the jury charge, which contained the following language:
Now, if you find from the evidence beyond a reasonable doubt that on or
about [date], in Nueces County, Texas, the Defendant, Mauricio Celis,
intentionally did then and there, with intent to obtain an economic benefit
for himself, hold himself out as a lawyer, to wit: [by manner and means],
and the defendant was not then and there licensed to practice law in this
state, another state, or a foreign country and was not then and there in
good standing with the State Bar of Texas and the state bar or licensing
authority of any state or foreign country where the defendant was licensed
to practice law, then you will find the defendant guilty of the offense of
falsely holding himself out as a lawyer as charged in the indictment.
The jury charge submitted by the court did not include the word “intentionally” in the
application paragraphs; however, the charge did require the jury to find that appellant
acted “with intent to obtain an economic benefit for himself.”
Appellant argues that because the statutory definition of the offense is silent on
the requirement of a culpable mental state, but does not plainly dispense with a mental
element, the trial court was required to submit a culpable mental state. See TEX. PENAL
CODE ANN. § 6.02(b) (West Supp. 2010) (stating if definition of offense “does not
prescribe a culpable mental state,” a culpable mental state “is nevertheless required
unless the definition plainly dispenses with any mental element”); Sanchez v. State, 209
S.W.3d 117, 122 n.38 (Tex. Crim. App. 2006) (“The failure to instruct the jury to find
every necessary culpable mental state constitutes jury-charge error.”); Cook v. State,
24
884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (holding “in order to constitute a crime, the
act or actus reus must be accompanied by a criminal mind or mens rea”).
We are not persuaded that the statutory definition of the offense is silent on the
requirement of a culpable mental state. See Aguirre v. State, 22 S.W.3d 463, 472 (Tex.
Crim. App. 1999) (“[A] court must look for a manifest intent to dispense with the
requirement of a culpable mental state, and . . . the silence of a statute about whether a
culpable mental state is an element of the offense leaves a presumption that one is.”).
The statutory definition of the offense includes the specific “intent to obtain an economic
benefit for himself.” TEX. PENAL CODE ANN. § 38.122(a). In the context of other statutory
offenses, the inclusion of this type of specific intent requirement in the definition of the
offense has been interpreted as satisfying the traditional mens rea requirement of the
criminal law. See Ex parte Smith, 645 S.W.2d 310, 312 (Tex. Crim. App. 1983) (“[T]he
definition [of theft] requires a specific intent „to deprive the owner of property.‟ No doubt
the Legislature was satisfied that its definition met the traditional mens rea requirement
of the criminal law.”); McKenzie v. State, 617 S.W.2d 211, 213 (Tex. Crim. App. 1981)
(“An essential element of the offense of indecency with a child is the mental state that
accompanies the forbidden conduct: the specific intent to arouse or gratify the sexual
desire of any person.”); State v. Sandoval, 842 S.W.2d 782, 788 (Tex. App.—Corpus
Christi 1992, pet. ref‟d) (“The culpability required under the [barratry] statute is the intent
„to obtain an economic benefit.‟”).
In cases involving specific-intent offenses, courts have held that the jury charge
should include only the specific intent required by the statute and that a jury charge is
erroneous if it includes the general standards for mens rea such as intentionally or
25
knowingly. See Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010,
pet. ref‟d) (“Moreover, the charge included the required specific intent to arouse or
gratify in the application portion, along with the erroneous „intentionally and knowingly‟
language.”); Jones v. State, 229 S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.)
(finding error when charge “stated that indecency with a child is committed if the person
intentionally or knowingly engages in sexual contact with a child”); Washington v. State,
930 S.W.2d 695, 699-700 (Tex. App.—El Paso 1999, no pet.) (“Section 21.11(a)(1) and
Section 21.01(2) specify the culpable mental state that must be applied to the conduct,
namely, the specific intent to arouse or gratify sexual desire. Thus, it seems
superfluous to provide any definition of „intentionally‟ in the jury charge.”). In a case
involving the barratry statute, which also requires the specific intent “to obtain an
economic benefit,” we have previously held that “no additional mental state must be
alleged or proved.” See Sandoval, 842 S.W.2d at 789.
In this case, the application paragraphs submitted in the jury charge tracked both
the language of the indictments and the statutory definition of the offense. See Casey
v. State, 215 S.W.3d 870, 886-87 (Tex. Crim. App. 2007) (“The charge here set forth
the law applicable to the case by tracking the language of the statute.”); Martinez v.
State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (“Following the law as it is set out
by the Texas Legislature will not be deemed error on the part of a trial judge.”); Riddle v.
State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge which tracks the
language of a particular statute is a proper charge on the statutory issue.”).
Furthermore, the jury charge is consistent with our decision in a case involving the
barratry statute, where we held that no additional mental state must be alleged or
26
proved beyond the specific intent to obtain an economic benefit. See Sandoval, 842
S.W.2d at 789; see also Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)
(“The purpose of the jury charge, of course, is to inform the jury of the applicable law
and guide them in its application to the case.”). Accordingly, we conclude that the trial
court did not err in refusing to submit the application paragraphs proposed by appellant.
See Tovar v. State, 165 S.W.3d 785, 792 (Tex. App.—San Antonio 2005, no pet.)
(“Specifically requested charges may be refused where the instructions given by the
court are adequate and fully protect the rights of the accused.”); McAfee v. State, 658
S.W.2d 200, 200 (Tex. App.—El Paso, 1983 no writ) (“[S]pecific intent was both pled
and charged and such a state of mind necessarily entails an entry that is made either
intentionally or knowingly.”).
Appellant‟s seventh issue is overruled.
C. Mistake of Fact
In issue eight, appellant argues that the trial court erred in denying his requested
jury instruction on mistake of fact. The general defense of mistake of fact, as codified in
section 8.02(a) of the Texas Penal Code, provides: “It is a defense to prosecution that
the actor through mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the kind of culpability required for the commission of the
offense.” TEX. PENAL CODE ANN. § 8.02(a) (West 2003).
When an accused creates an issue of mistaken belief as to the culpable mental
element of the offense, he is entitled to a defensive instruction of “mistake of fact.”
Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); see also Granger v. State,
3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (“Therefore, in the instant case, the issue
27
before the trial court was whether appellant‟s purported belief, if accepted as true,
negated the culpability required for murder.”). When evidence from any source raises a
defensive issue, and the defendant properly requests a jury charge on that issue, the
trial court must submit the issue to the jury. Trevino, 100 S.W.3d at 237. The evidence
which raises the issue could be “strong, weak, contradicted, unimpeached, or
unbelievable.” Id. An appellate court‟s duty is to look at the evidence supporting that
charge, not the evidence refuting it. Id. at 239. This rule is designed to insure that the
jury, not the judge, will decide the relative credibility of the evidence. Miller, 815 S.W.2d
at 585. Absent a proper request, the trial court does not err by failing to instruct the jury
on the defense of mistake of fact. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.
1998); see also Mays v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010) (“Because
appellant failed to tell the trial judge what specific fact he was mistaken about, he was
not entitled to an instruction on this defensive issue.”); Goodrich v. State, 156 S.W.3d
141, 147-48 (Tex. App.—Dallas 2005, pet. ref‟d) (“When requesting an instruction on
the defense of mistake of fact, the party must specify the fact alleged to have been
mistaken.”).
Appellant requested an instruction on mistake of fact that was based on his
allegedly “reasonable belief that he was licensed to practice law in Mexico and was in
good standing with the licensing authority in Mexico.” To relate to a mistake of fact
defense under section 8.02(a), the mistaken belief must “negate[] the kind of culpability
required for the commission of the offense.” TEX. PENAL CODE ANN. § 8.02(a). Section
38.122(a) of the Texas Penal Code, which defines the relevant offense, prescribes the
culpable mental state as “intent to obtain an economic benefit.” TEX. PENAL CODE ANN.
28
§ 38.122(a). Appellant‟s alleged belief that he was licensed to practice law in Mexico
and in good standing with the licensing authority in Mexico does not negate the culpable
mental state to commit the offense. Therefore, appellant was not entitled to a mistake
of fact instruction regarding his belief that he was licensed to practice law in Mexico and
in good standing with the licensing authority in Mexico. See Ingram v. State, 261
S.W.3d 749, 753 (Tex. App.—Tyler 2008, no pet.) (“Appellant‟s alleged belief that the
structure was abandoned did not relate to the culpable mental state to commit the
offense. As such, Appellant was not entitled to a mistake of fact instruction regarding
his belief that the structure was not a habitation.”).
We also note that in his brief appellant has described his defense as “a
reasonable belief that as a foreign (Mexican) lawyer, he could lawfully hold himself out
as a Mexican lawyer [in Texas].” APPELLANT‟S BRIEF at 30; see also id. at 48
(“Appellant‟s position, in a nutshell, was that he had a reasonable belief that he could
hold himself out as a Mexican lawyer in Texas.”). Appellant complains that “[t]he jury
[was] . . . not given any vehicle in the jury charge whereby it could consider the
defensive evidence of whether appellant reasonably believed that he could hold himself
out as a Mexican lawyer in Texas.” Id. at 29, n. 83.
This defensive theory concerns a mistake of law, not a mistake of fact. The only
mistake it involves is the belief that it is lawful for a lawyer from Mexico to hold himself
out as a lawyer in Texas. See Legere v. State, 82 S.W.3d 105, 109 (Tex. App.—San
Antonio 2001, pet. ref‟d) (“Legere‟s testimony, however, does not raise a mistake of fact
defense. The testimony only shows that Legere did not believe that his conduct was
illegal. None of the offenses with which Legere was charged required him to believe
29
that his conduct was illegal.”); Vitiello v. State, 848 S.W.2d 885, 887 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref‟d) (holding defendant was not entitled to mistake of
fact instruction because, assuming defendant‟s version was true, his only mistake was
believing his actions were not unlawful). Appellant has not argued that he was entitled
to an instruction on mistake of law. See Green v. State, 829 S.W.2d 222, 223 (Tex.
Crim. App. 1992) (“Section 8.03(b) of the Texas Penal Code sets forth two requirements
which must be met before a defendant is entitled upon request to a mistake of law
defense instruction. First, the defendant must establish that he reasonably believed that
his conduct did not constitute a crime. Second, the defendant must establish that he
reasonably relied upon either an administrative order or a written interpretation of the
law contained in an opinion of a court of record.”).
Appellant‟s eighth issue is overruled.
D. Foreign Legal Consultant
In issue nine, appellant argues that the trial court erred in including “foreign legal
consultant” in the jury charge definition of “good standing with the State Bar of Texas.”
Appellant argues that the court should have used the definition of “member in good
standing with the State Bar of Texas” provided in Article I, Section 6 of the State Bar
Rules. See TEX. STATE BAR RULES art. 1, § 6.7
7
The jury charge instructed the jury as follows:
“Good standing with the State Bar of Texas” means:
(1) Being a “Member in Good Standing” of the State Bar of Texas; or
(2) Being certified to practice in Texas as a Foreign Legal Consultant by the
Texas Board of Law Examiners.
A “Member in Good Standing” of the State Bar of Texas is someone who
meets and complies with all applicable requirements of the Rules of the
30
We are not persuaded that there was any error in the jury charge. The jury
charge used the definition of “member in good standing with the State Bar of Texas”
provided in Article I, Section 6 of the State Bar Rules, which appellant agrees was
correct. Furthermore, the inclusion of foreign legal consultant was consistent with the
law and supported by the evidence. The Texas Supreme Court has the authority to
promulgate rules for the limited practice of law by attorneys licensed in other
jurisdictions. See TEX. GOV‟T CODE ANN. § 81.102(b)(1) (West 2005) (“The supreme
court may promulgate rules prescribing the procedure for limited practice of law by
attorneys licensed in another jurisdiction. . . .”); RULES GOVERNING ADMISSION TO THE BAR
OF TEX. XIV, § 3 (“A person certified to practice as a Foreign Legal Consultant under this
Rule may render legal services in Texas in the manner and to the extent permitted by
the jurisdiction in which such person is admitted to practice. . . .”). The Rules Governing
Admission to the Bar of Texas, including those providing for the limited practice of law
by attorneys licensed in other jurisdictions, have “the same effect as statutes.” See Bd.
of Law Examiners v. Stevens, 868 S.W.2d 773, 776 (Tex. 1994).
At trial, Josh Hensley, the Director of Eligibility and Examination for the Texas
Board of Law Examiners, testified that a lawyer from another country, such as Mexico,
can become affiliated with the State Bar of Texas (without becoming a member) through
certification as a foreign legal consultant. See RULES GOVERNING ADMISSION TO THE BAR
Supreme Court of Texas governing admission to the bar of Texas, and who
is not in default of payment of dues and who is not under suspension from
practice.
A “Foreign Legal Consultant” is someone certified under the Rules of the
Supreme Court of Texas governing admission to the Bar of Texas, and who
is considered a lawyer affiliated with the Bar of Texas.
31
OF TEX. XIV, § 1(a) (“In its discretion the Supreme Court may certify to practice in Texas
as a legal consultant . . . a member in good standing of a recognized legal profession in
a foreign country. . . .”), § 4 (“[A] person certified as a Foreign Legal Consultant under
this Rule shall be considered a lawyer affiliated with the Bar of Texas. . . .”). According
to Hensley‟s testimony, a foreign legal consultant is considered to be in good standing
with the State Bar of Texas. See id. at § 5 (“A person certified to practice as a Foreign
Legal Consultant under this Rule shall be subject to professional discipline in the same
manner and to the same extent as persons admitted to the Texas Bar . . . .”). Thus,
appellant is incorrect in his assumption that only members of the State Bar of Texas are
capable of being in good standing with the bar.
We also disagree with appellant‟s assertion that the inclusion of foreign legal
consultant afforded the jury with an improper basis upon which to find him guilty. On
the contrary, it precluded the jury from finding appellant guilty based solely on his lack of
membership in the State Bar of Texas. As submitted by the court, the jury charge
allowed the jury to find that appellant was in good standing with the State Bar of Texas if
he was either: (1) a member in good standing; or (2) affiliated as a foreign legal
consultant. If foreign legal consultant had been omitted from the jury charge as
appellant requested, the jury would have been allowed to find that appellant was in
good standing with the State Bar of Texas only if he was a member. This would have
been contrary to the plain meaning of the statute, which requires good standing with the
State Bar of Texas, but not membership. See TEX. PENAL CODE ANN. § 38.122(a) (no
offense occurs if person “is currently licensed to practice law in this state, another state,
or a foreign country and is in good standing with the State Bar of Texas”); Ex parte
32
Manrique, 40 S.W.3d 552, 554 (Tex. App.—San Antonio 2001, no pet.) (“Lawyers
licensed in other states are also clearly excluded from prosecution so long as they are
in good standing with the State Bar of Texas and their own licensing bar or authority.”);
see also Lomax v. State, 233 S.W.3d 302, 308 (Tex. Crim. App. 2007) (“Where the
statute is clear and unambiguous, the Legislature must be understood to mean what it
has expressed and it is not for the courts to add to or subtract from such statute.”).
Appellant‟s ninth issue is overruled.
V. CONSTITUTIONALITY OF TEXAS PENAL CODE SECTION 38.122
In issues ten through thirteen, appellant challenges the constitutionality of section
38.122 of the Texas Penal Code based on vagueness and overbreadth.
A. Standard of Review and Applicable Law
The burden rests upon the person who challenges a statute to establish its
unconstitutionality. Kfouri v. State, 312 S.W.3d 89, 92 (Tex. App.—Houston [14th Dist.]
2010, no pet.). In determining whether a law is vague or overbroad, we keep in mind
the elementary principles of statutory construction: we interpret a statute in accordance
with the plain meaning of its language unless the language is ambiguous or the plain
meaning leads to absurd results. Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim.
App. 1999). In determining plain meaning, “words and phrases shall be read in context
and construed according to the rules of grammar and usage.” TEX. GOV‟T CODE ANN. §
311.011(a) (West 2005); see TEX. PENAL CODE ANN. § 1.05(b) (West 2003) (extending
application of section 311.011 to penal code). If a statute can be construed in two
different ways, one of which sustains its validity, we apply the interpretation that
33
sustains its validity. See State v. Carmaco, 203 S.W.3d 596, 599 (Tex. App.—Houston
[14th Dist.] 2006, no pet.).
“A facial challenge to a legislative act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances
exists under which the act would be valid.” Briggs v. State, 789 S.W.2d 918, 923 (Tex.
Crim. App. 1990); State v. Garcia, 823 S.W.2d 793, 796-97 (Tex. App.—San Antonio
1992, pet. ref‟d). 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. Garcia, 823 S.W.2d at 797 (citing Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)). If it does not,
then the overbreadth challenge must fail. Id. 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. Id.
B. Facial Challenge to the Overbreadth of Section 38.122
In issue twelve, appellant argues that section 38.122 of the Texas Penal Code is
unconstitutionally overbroad on its face.8 The justification for the application of
overbreadth analysis applies weakly, if at all, in the ordinary commercial context.
Garcia, 823 S.W.2d at 797 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 380
(1977)). “Where, as here, the regulation of the commercial enterprise, the practice of
8
We address appellant‟s issues ten through thirteen out of order because the standard applicable
to constitutional challenges requires that we address issues involving the overbreadth of a statute before
addressing issues involving the vagueness of a statute. See Maloney v. State, 294 S.W.3d 613, 626
(Tex. App.—Houston [1st Dist.] 2009, no pet.) (“When an appellant challenges a statute as both
unconstitutionally overbroad and vague, we address the overbreadth challenge first.”). Accordingly, we
address issues twelve and thirteen before addressing issues ten and eleven.
34
law, is a subject of legitimate and substantial government interest, the mere fact that
regulation has an incidental impact on speech is not sufficient to render the statute
invalid.” Ex parte Manrique, 40 S.W.3d 552, 553 (Tex. App.—San Antonio 2001, no
pet.). Thus, the San Antonio Court of Appeals has previously upheld the
constitutionality of section 38.122, concluding that the “statute affects only commercial
speech in the context of employment as a lawyer . . . [and] therefore . . . is not facially
overbroad.” Id. at 554.
Lawyer advertising is the focus of appellant‟s facial challenge to the overbreadth
of the statute. According to appellant, while “it makes perfect sense” for the State of
Texas to regulate lawyer advertising “in the context of a lawyer licensed by the State
Bar of Texas, it makes absolutely no sense in the context of a lawyer from another state
or another country.” APPELLANT‟S BRIEF at 63. Appellant contends that the statute will
“totally eliminate advertising by out of state and out of country lawyers in Texas.” Id.
We are not persuaded that section 38.122 involves anything other than the
regulation of commercial speech, a context in which the overbreadth analysis applies
weakly, if at all. Garcia, 823 S.W.2d at 797. The United States Supreme Court has
refused to apply an overbreadth analysis to lawyer advertising. See Bates, 433 U.S. at
381. Relying on the Bates decision and other precedent, this Court has previously
refused to apply an overbreadth analysis to the Texas barratry statute. See Sandoval,
842 S.W.2d at 786-87.
In this case, we note that the State of Texas has a compelling interest in
regulating the commercial speech of individuals (even those from other states or
countries) who hold themselves out as lawyers in Texas and such regulations are for
35
the benefit and protection of the people as a whole. See Sperry v. Florida, 373 U.S.
379, 383 (1963) (recognizing that a state has a “substantial interest in regulating the
practice of law within the State”); Hexter Title & Abstract Co. v. Grievance Comm., 179
S.W.2d 946, 948 (Tex. 1944) (“The State has a vital interest in the regulation of the
practice of law for the benefit and protection of the people as a whole.”). Accordingly,
we join the San Antonio Court of Appeals in holding that section 38.122 is not facially
overbroad.
Appellant‟s twelfth issue is overruled.
C. Challenge to the Overbreadth of Section 38.122 as Applied to Appellant
In issue thirteen, appellant argues that section 38.122 of the Texas Penal Code
is unconstitutionally overbroad as applied to him. Appellant argues that his First
Amendment rights were violated by his convictions on count 2 (“stating on a business
card that he was licensed in Mexico”) and count 5 (“being described on a business
webpage as an attorney at law, and a licensed attorney in Mexico”) in Cause No. 07-
CR-4046-E.
The fact that the enforcement of a statute operates to prohibit and restrain
freedom of speech does not itself mean that the statute is invalid. See Allen v. State,
604 S.W.2d 191, 192 (Tex. Crim. App. 1980). The overbreadth doctrine is “strong
medicine” that should be employed “sparingly” and “only as a last resort.” Ex parte Ellis,
309 S.W.3d 71, 91 (Tex. Crim. App. 2010). “[T]he overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute‟s plainly legitimate
sweep.” Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 615, (1973)). The statute
must be “closely drawn to match a sufficiently important interest.” Id.
36
The constitutional guarantees of freedom of speech forbid the States to punish
the use of words or language not within narrowly limited classes of speech. See
Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991) (citing Gooding v.
Wilson, 405 U.S. 518, 521-522 (1972)). Even as to such classes, “the statute must be
carefully drawn or be authoritatively construed to punish only unprotected speech.” Id.
For example, the states may, by narrowly drawn statutes, prohibit obscenity, id. (citing
Roth v. United States, 354 U.S. 476 (1957)), child pornography, id. (citing New York v.
Ferber, 458 U.S. 747 (1982)), “fighting words,” id. (citing Chaplinsky v. New Hampshire,
315 U.S. 568 (1942)), and the incitement to imminent lawless activity, id. (citing
Brandenburg v. Ohio, 395 U.S. 444 (1969)). On the other hand, the states may not
criminalize speech that is merely insulting, id. (citing Gooding, 405 U.S. at 518) or
speech that opposes or challenges police action, id. (citing Houston v. Hill, 482 U.S. 451
(1987)). “Speech is often provocative and challenging . . . [But it] is nevertheless
protected against censorship or punishment, unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest.” Id. (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)).
In overruling appellant‟s facial challenge to the overbreadth of section 38.122, we
have concluded that the statute affects only commercial speech in the context of
employment as a lawyer. See Ex parte Manrique, 40 S.W.3d at 553. We see no
reason for reaching a different conclusion in addressing appellant‟s challenge to the
overbreadth of the statute as applied to him. See Village of Hoffman Estates, 455 U.S.
at 496 (“[T]he overbreadth doctrine does not apply to commercial speech.”). In the
context of the Texas barratry statute, the Texas Supreme Court has held that a lawyer
37
who paid non-lawyers to solicit remunerative employment for himself was not exercising
any rights to free expression. See O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 403
(Tex. 1988). The Texas Court of Criminal Appeals has also rejected the contention that
the barratry statute “is unconstitutional because it imposes a limitation on the right of
free speech.” Barbee v. State, 432 S.W.2d 78, 85 (Tex. Crim. App. 1968). In this case,
appellant was not convicted because he engaged in expressive activity protected by the
First Amendment, but because he falsely held himself out as a lawyer with the intent to
obtain an economic benefit for himself. See Clark v. State, 665 S.W.2d 476, 482 (Tex.
Crim. App. 1984) (“[I]ntentionally false or misleading statements made in a commercial
context are not within the protection of the First Amendment.”); Covalt v. State, 877
S.W.2d 445, 448 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (“Lying under oath is
not a constitutionally protected activity.”). Even assuming appellant‟s conduct did not
involve purely commercial speech and that the overbreadth doctrine were therefore
applicable to section 38.122 of the Texas Penal Code, the statute‟s prohibition against
falsely holding oneself out as a lawyer is substantially related to legitimate state
interests in regulating the practice of law in Texas. See O'Quinn, 763 S.W.2d at 403
(“[A] ban on in-person solicitation by lawyers and/or their runners is substantially related
to legitimate state interests.”).
Appellant‟s thirteenth issue is overruled.
D. Facial Challenge to the Vagueness of Section 38.122
In issue ten, appellant argues that section 38.122 of the Texas Penal Code is
unconstitutionally vague on its face.
38
“As a fundamental proposition, all criminal laws must give notice to the populace
as to what activity is made criminal so as to provide fair notice to persons before making
their activity criminal.” Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989).
“The rationale for this is obvious: crimes must be defined in advance so that individuals
have fair warning of what is forbidden.” Id. A lack of notice poses a “trap for the
innocent” and violates due process. Id. (citing United States v. Cardiff, 344 U.S. 174,
176 (1952)).
The standard used to decide a challenge to the vagueness of a statute varies
depending on whether or not the First Amendment is involved. If First Amendment
freedoms are implicated, a criminal law must: (1) be sufficiently clear to afford a person
of ordinary intelligence a reasonable opportunity to know what is prohibited; (2)
establish determinate guidelines for law enforcement; and (3) be sufficiently definite to
avoid chilling protected expression. Ex parte Ellis, 309 S.W.3d at 86. When a
vagueness challenge involves First Amendment considerations, a criminal law may be
held facially invalid even if the law has some valid application. Id.; see also Long v.
State, 931 S.W.2d 285, 288 (Tex. Crim. App. 1996) (“When a vagueness challenge
involves First Amendment concerns, the statute may be held facially invalid even
though it may not be unconstitutional as applied to the appellant‟s conduct.”).
If the First Amendment is not involved, a facial vagueness challenge can
succeed only if it is shown that the law is unconstitutionally vague in all of its
applications. Ex parte Ellis, 309 S.W.3d at 80. In such cases, vagueness is
determined based on the standards of the Due Process Clause, which require that a law
be specific enough to: (1) give a person of ordinary intelligence a reasonable
39
opportunity to know what is prohibited; and (2) establish determinate guidelines for law
enforcement. Sanchez, 995 S.W.2d at 690.
In determining the threshold issue of whether “the statute, as authoritatively
construed, is susceptible of application to speech guaranteed by the First Amendment,”
we note that commercial speech is subject to constitutional protection, though less than
the protection afforded to other forms of constitutionally guaranteed expression. Scott
v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim. App. 2010); see also Pruett v. Harris
County Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008) (“Commercial speech is
generally afforded less constitutional protection than other forms of constitutionally
guaranteed expression.”). For commercial speech to come within the provision of the
First Amendment, “it at least must concern lawful activity and not be misleading.” Cent.
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980). Section
38.122 of the Texas Penal Code makes it an offense to falsely hold oneself out as a
lawyer, activity which takes place in the commercial context and necessarily involves
expressions of a false and misleading nature which are not protected by the First
Amendment. See Knight v. State, 91 S.W.3d 418, 425 (Tex. App.—Waco 2002, no
pet.) (“Speech is not protected by the First Amendment when it is the very vehicle of the
crime itself.”). Accordingly, we conclude that section 38.122 does not broadly prohibit
speech protected by the First Amendment and that appellant‟s vagueness challenge
does not fall within the limited exception under which a criminal law may be held facially
invalid even if it has some valid application. See Santikos v. State, 836 S.W.2d 631,
633 (Tex. Crim. App. 1992) (“A limited exception has been recognized for statutes that
broadly prohibit speech protected by the First Amendment.”).
40
Appellant has the burden to establish that section 38.122 of the Texas Penal
Code is unconstitutionally vague in all of its applications. See Ex parte Ellis, 309
S.W.3d at 80. Appellant‟s arguments concern the vagueness of the statute as it applies
to individuals who are licensed to practice law in states other than Texas and foreign
countries. According to appellant, the statute is unconstitutionally vague on its face
because it fails to define the terms “lawyer” and “in good standing with the State Bar of
Texas.” Appellant contends that the vagueness of the term “lawyer” prevents a person
from out of state or a foreign country “from ascertain[ing] whether he or she falls within
Texas‟ definition of „lawyer,‟ whatever that might be, if in fact one exists.” APPELLANT‟S
BRIEF at 67. As a result, “an attorney licensed in another state or a foreign country
would not be on fair notice that his or her acts of representing himself or herself in
Texas as an attorney from that other state or country would be illegal unless he or she
was . . . „in good standing with the State Bar of Texas.‟” Id. at 68. In addition, there is
no fair notice that a person must be licensed to practice law in Texas in order to be in
good standing with the State Bar of Texas. See id.
Appellant has not attempted to show that section 38.122 of the Texas Penal
Code is unconstitutionally vague as it applies to lawyers currently or formerly licensed to
practice law in Texas or other persons in Texas who are not lawyers. As such,
appellant has failed to meet his burden of establishing that the statute is
unconstitutionally vague in all of its applications. See Ex parte Ellis, 309 S.W.3d at 80.
Appellant‟s tenth issue is overruled.
E. Challenge to the Vagueness of Section 38.122 as Applied to Appellant
41
In issue eleven, appellant argues that section 38.122 of the Texas Penal Code is
unconstitutionally vague as applied to him. Appellant‟s argument is based on the failure
of the statute to define the terms “lawyer” and “in good standing with the State Bar of
Texas.” According to appellant, the statute failed to give him fair notice that it was
unlawful to hold himself out as a lawyer in Texas unless he was licensed to practice law
in Texas and in good standing with the State Bar of Texas.9
The relevant inquiry is whether section 38.122 of the Texas Penal Code: (1)
gives a person of ordinary intelligence a reasonable opportunity to know what is
prohibited; and (2) establishes determinate guidelines for law enforcement. See
Sanchez, 995 S.W.2d at 690. A statute is not unconstitutionally vague merely because
the words or terms used are not specifically defined. Engelking v. State, 750 S.W.2d
213, 215 (Tex. Crim. App. 1988). In the absence of special definitions, the language
under attack can be “measured by common understanding and practices” or “construed
in the sense generally understood.” Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.
1979).
We disagree with appellant‟s argument that he had no way of ascertaining
whether or not he was holding himself out as a lawyer because the term “lawyer” is not
defined by section 38.122. The statute, which prohibits falsely holding oneself out as a
lawyer, provides a sufficient (albeit implicit) definition of the term “lawyer” by stating that
no offense is committed if a person is “currently licensed to practice law in this state,
another state, or a foreign country and is in good standing with the State Bar of Texas
9
In addressing appellant‟s issues involving jury charge error, we explained that appellant‟s
interpretation of the statute is incorrect. The statute did not require appellant to be licensed to practice
law in Texas, as appellant contends; however, the statute did require that appellant be in good standing
with the State Bar of Texas. See TEX. PENAL CODE ANN. § 38.002(a).
42
and the state bar or licensing authority of any and all other states and foreign countries
where licensed.” TEX. PENAL CODE ANN. § 38.122(a). A person who meets these
requirements is considered a lawyer and is therefore not subject to prosecution. We
believe that the statute provides sufficient information for an ordinary, law-abiding
individual to know that his or her conduct risks violating a criminal law unless he or she
meets the requirements for being a lawyer set forth in the statute. See Bynum, 767
S.W.2d at 773.
Appellant also argues that the statute is unconstitutionally vague because it fails
to define the term “in good standing with the State Bar of Texas.” Appellant contends
that he is no different than lawyers who are licensed to practice law in other states who
hand out their business cards while in Texas and that the statute failed to give him fair
notice that he was required to do anything to be considered “in good standing with the
State Bar of Texas.”
The vagueness of section 38.122 of the Texas Penal Code as it applies to out of
state lawyers is not a relevant consideration in our analysis. See Blanco v. State, 761
S.W.2d 38, 41 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (“However, when
appellant‟s conduct, as here, falls so clearly within the proscribed activity, he cannot
complain of the law‟s vagueness as applied to others.”); Duncantell v. State, 230
S.W.3d 835, 845 (Tex. App.—Houston [14th Dist.] 2007, pet. ref‟d) (“A person who
engages in conduct that is clearly proscribed cannot complain of the vagueness of the
law as applied to the conduct of others.”). Because we have determined that there is
legally sufficient evidence to support appellant‟s convictions for engaging in the
proscribed activity, we will sustain his challenge to the vagueness of the statute only if it
43
is unconstitutionally vague as applied to the conduct at issue in this case. See
Duncantell v. State, 230 S.W.3d at 845 (“As our discussion of the sufficiency of the
evidence indicates, appellant violated the interference statute and therefore, we will
sustain his facial vagueness challenge only if the statute is impermissibly vague as
applied to his conduct at issue here.”).
This is not a situation in which no core of prohibited activity is defined. Ex parte
Anderson, 902 S.W.2d 695, 699 (Tex. App.—Austin 1995, pet. ref‟d) (“A statute is,
however, unconstitutionally vague when no core of prohibited activity is defined.”).
Section 38.122 makes it an offense to hold oneself out as a lawyer with the intent to
obtain an economic benefit, unless the person meets the requirements for being a
lawyer set forth in the statute. Being “in good standing with the State Bar of Texas” is
one of those requirements. Although the term is not defined, “perfect clarity and precise
guidance have never been required even of regulations that restrict expressive activity.”
Ex parte Ellis, 309 S.W.3d at 86.
In this case, the requirement of being in good standing with the State Bar of
Texas gave appellant a reasonable opportunity to know that it was unlawful to hold
himself out as a lawyer in Texas solely because it was not unlawful for him to do so in
Mexico. The statute is sufficiently clear and precise to give fair warning that the practice
of law is closely regulated in Texas and that a person must be in good standing with the
State Bar of Texas to avoid committing a criminal offense. See Webb v. State, 991
S.W.2d 408, 416 (Tex. App.—Houston [14th Dist.] 1999, pet. ref‟d) (“The statutory
language is not unconstitutionally vague—it conveys a sufficient warning about the
proscribed conduct when measured by a common understanding and practice.”).
44
In addition, the good standing requirement provides determinate guidelines for
law enforcement by incorporating into the statute the attorney-licensing and rule-making
authority of the Texas Supreme Court, the administrative function of the Texas Board of
Law Examiners as the agency that facilitates the licensing process, and the minimum
professional standards and requirements adopted by the State Bar of Texas as a self-
regulating body. Therefore, there is no need to resort to subjective or arbitrary analysis
to determine whether a violation of the statute has occurred. See Bynum, 767 S.W.2d
at 775 (“The statute adequately details the prohibited conduct to the extent that the
enforcement of the statute would not be relegated to subjective interpretation.”).
Appellant‟s eleventh issue is overruled.
VI. EVIDENTIARY RULINGS
In issues fourteen and fifteen, appellant complains about errors in the trial court‟s
rulings on the admissibility of evidence.
A. Standard of Review
We review the trial court‟s decision to admit or exclude evidence under an abuse
of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).
The trial court does not abuse its discretion unless its determination lies outside the
zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 104 (Tex. Crim.
App. 1996). If the trial court‟s decision was correct on any theory of law applicable to
the case, we will sustain it. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.
1999); see also Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004) (“If the
ruling was correct on any theory of law applicable to the case, in light of what was
before the trial court at the time the ruling was made, then we must uphold the
45
judgment.”). This is true even if the trial judge failed to give any reason or used the
wrong reason for the ruling. Prystash, 3 S.W.3d at 527.
Generally, if the trial court‟s ruling “merely offends the rules of evidence,” the
erroneous admission or exclusion of evidence is nonconstitutional error governed by
rule 44.2(b) of the Texas Rules of Appellate Procedure. Melgar v. State, 236 S.W.3d
302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‟d) (citing Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001)); see also Bagheri v. State, 119 S.W.3d 755,
762-63 (Tex. Crim. App. 2003). When evaluating harm under rule 44.2(b), we “need
only determine whether or not the error affected a substantial right of the defendant.”
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Substantial rights are not
affected by the erroneous admission or exclusion of evidence “if the appellate court,
after examining the record as a whole, has fair assurance that the error did not influence
the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002) (citations omitted). If the evidence is generally cumulative of other evidence
introduced in the case, no harm attaches. See Anderson v. State, 717 S.W.2d 622, 628
(Tex. Crim. App. 1986) (holding that to show harm, the excluded evidence must be
controlling on a material issue and not cumulative of other evidence); Rangel v. State,
179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref‟d) (holding there is no harm
when complained-of evidence was admitted through other testimony); Franks v. State,
90 S.W.3d 771, 805-06 (Tex. App.—Fort Worth 2002, no pet.) (holding there is no harm
when complained-of testimony was generally cumulative of other evidence introduced in
case).
B. Exclusion of the Letter from the Supreme Court of Tamaulipas
46
In issue fourteen, appellant argues that the trial court erred in excluding from
evidence a letter from Judge Perez of the Supreme Court of Tamaulipas, which like the
letter from the Supreme Court of Chihuahua, indicated that appellant, like all citizens of
Mexico, has a constitutional right to practice law in some limited areas. The State
objected to the letter as hearsay. See TEX. R. EVID. 802. Appellant argued that the
letter was admissible based on the public records exception to the hearsay rule. See
TEX. R. EVID. 803(8)(B). The State maintained that the document was not admissible
because appellant had not established that it qualified as a public record setting forth
“matters observed pursuant to duty imposed by law as to which matters there was a
duty to report.” See id.
Although Rule 803(8)(C) does not require that a formal “predicate” be laid
through a predicating witness, the offered document must still be shown to satisfy the
requirements of the Rule. See Cowan v. State, 840 S.W.2d 435, 437 (Tex. Crim. App.
1992) (“[T]he requirements for admissibility under Rule 803(8)(C) may be met by
circumstantial evidence from the face of the offered document.”). According to the
State, appellant failed to prove that Judge Perez had a duty imposed by law to report
the matters set forth in the letter. See Cowan v. State, 840 S.W.2d 435, 438 n.11 (Tex.
Crim. App. 1992) (“[S]ection (B) of the Rule does suggest that . . . the report be of
matters observed „pursuant to a duty imposed by law‟ and that there was a „duty to
report.‟”) (citations omitted).
We are not persuaded that the trial court abused its discretion in excluding the
letter from evidence or that appellant suffered any harm from its exclusion. As noted
above, a similar letter from the Supreme Court of Chihuahua was admitted into
47
evidence. Appellant argues the letter from the Supreme Court of Tamaulipas was not
cumulative of the other letter because it was not susceptible to having its credibility
undermined by being included in what the State called appellant‟s “aye Chihuahua
defense.” Although we appreciate the limitations created by the court‟s ruling, the
letters are substantially the same. See Guerra v. State, 942 S.W.2d 28, 33 (Tex.
App.—Corpus Christi 1996, pet. ref‟d) (“The standard on exclusion of cumulative
evidence and harmless error dictates that no harm results when evidence is excluded if
other evidence of substantially the same nature is admitted.”).
Furthermore, the probative value of the evidence was limited to the issue of
whether or not appellant could practice law in Mexico without a “cedula.” As we have
explained in connection with appellant‟s other issues, a license to practice law in Mexico
is necessary, but not sufficient, for appellant to lawfully hold himself out as a lawyer in
Texas with the intent to obtain an economic benefit for himself. Because the letter
excluded from evidence had no probative value on the issue of whether or not appellant
was in good standing with the State Bar of Texas, which was necessary for appellant‟s
conduct to be lawful, we have fair assurance that the error, if any, in excluding the letter
from evidence either did not influence the jury or had but a slight effect. See Morales,
32 S.W.3d at 867 (“The fact that a piece of evidence was wrongfully excluded from the
jury‟s consideration is not sufficient to warrant reversal of a conviction unless the
exclusion had a „substantial and injurious effect or influence in determining the jury's
verdict.‟”) (citations omitted).
Appellant‟s fourteenth issue is overruled.
C. Admission of Testimony by Attorney Raymond Thomas
48
In issue fifteen, appellant argues that the trial court erred in overruling his
hearsay objection to the following testimony by attorney Raymond Thomas:
Q. [Counsel] Have you ever found a degree from Regiomontana for
Mauricio Celis?
...
A. [Thomas] I checked with the authorities. I did not find a diploma
or a license.
We do not agree with appellant‟s contention that the foregoing testimony was
hearsay. See Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex. App.—Houston
[14th Dist.] 1992, no writ) (“If the witness states that of his own knowledge he heard X
make a certain assertion and this is offered to prove the truth of the assertion, the
testimony is hearsay. If, on the other hand, the witness states that a certain fact is true
but in some manner discloses that his statement is founded on information received
from X, the proper objection in strictness is not hearsay but a want of testimonial
qualification of personal knowledge on the part of the witness. . . .”) (citing 1A Roy R.
Ray, LAW OF EVIDENCE § 793 (Texas Practice 1980)).
Furthermore, even if the ruling were an abuse of discretion, it would not be
reversible error because the same or similar evidence was admitted through the
testimony of appellant and his witnesses. See Zorn v. State, 315 S.W.3d 616, 625
(Tex. App.—Tyler 2010, no pet.) (“Even the erroneous admission of evidence will not
result in reversible error if the same evidence is admitted elsewhere in the trial without
objection.”). Appellant testified that although he has a diploma in judicial sciences, it
has never been registered with the Ministry of Education. Appellant also testified that
he does not have a cedula. According to appellant‟s testimony, “The Constitution does
not require that you be a licensed attorney or have a diploma in law to practice law in
49
Mexico.” Appellant also called two witnesses, Jose Martin de Valenzuela Hernandez
and Hector Rene Valdez Diaz, to testify that it is not necessary to go to law school or to
obtain a law license to practice law in Mexico. Based on the foregoing, we have fair
assurance that the error, if any, in overruling appellant‟s hearsay objection to Thomas‟s
testimony either did not influence the jury or had but a slight effect. See Motilla, 78
S.W.3d at 355.
Appellant‟s fifteenth issue is overruled.
VII. CONCLUSION
Having overruled appellant‟s eighteen issues on appeal, we affirm the judgments
of the trial court.
__________________
ROGELIO VALDEZ
Chief Justice
Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
31st day of August, 2011.
50