State v. Frank Empey ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00407-CR
THE STATE OF TEXAS STATE
V.
FRANK EMPEY APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR17613
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DISSENTING OPINION
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John Locke discussed the purpose of government in his Two Treatises of
Government.1 Many of his ideas are reflected in Thomas Jefferson’s writings,
1
See generally John Locke, Two Treatises of Government (Peter Laslett
ed., Cambridge Univ. Press, 2d ed. 1967) (1690).
including our Constitution.2 People join together to create a society and
empower their leaders to govern because they seek protection of their lives,
liberty, and property. A government is created and rightfully exists only by the
consent of the governed “and is but the expression of their aggregate will,
designed to secure and protect them in the enjoyment of life, liberty, and
property . . . .”3
But, inevitably, tension arises between the enjoyment of life and liberty and
the enjoyment of property when claims to property are in conflict. As Presiding
Judge Sharon Keller of the Texas Court of Criminal Appeals has explained,
The Supreme Court has interpreted the Due Process Clause as
having both substantive and procedural components. The
substantive component protects the individual against government
action that either lacks a rational basis or unduly infringes on a
fundamental right or liberty interest. A statute that infringes upon a
fundamental right or liberty interest violates the substantive
component of the Due Process Clause unless the infringement is
narrowly tailored to serve a compelling state interest. A substantive-
due-process analysis that is based upon the infringement of a
fundamental right or liberty interest must provide a careful
description of the asserted fundamental liberty interest. A
fundamental right or liberty interest is one that is deeply rooted in
this Nation’s history and tradition and implicit in the concept of
2
See generally David L. Wardle, Reason to Ratify: The Influence of John
Locke’s Religious Beliefs on the Creation and Adoption of the United States
Constitution, 26 Seattle U. L. Rev. 291 (2002).
3
Galveston, H. & S.A. Ry. Co. v. De Groff, 110 S.W. 1006, 1010 (Tex. Civ.
App.—Fort Worth 1908), rev’d on other grounds, 102 Tex. 433, 118 S.W. 134
(Tex. 1909).
2
ordered liberty, such that neither liberty nor justice would exist if (it)
were sacrificed.4
And as our sister court has pointed out, “Substantive due process protects
against the arbitrary and oppressive exercise of government power over a
person’s life, liberty, or property, regardless of the fairness of the procedures
used to implement the government action.”5
My differences with the majority opinion are founded in such constitutional
guarantees of due process. Unfortunately, in expressing my concerns with the
statute in question and with the majority opinion, I am not sufficiently skillful to
make these concerns clear to the thoughtful and articulate majority. The
legislature alone, within the boundaries described by our constitutions, delineates
those acts that violate our criminal laws.6 This obligation may not be delegated
to other branches of the government.7 When statutes are so vague or contain
4
Fleming v. State, 455 S.W.3d 577, 589–90 (Tex. Crim. App. 2014) (Keller,
P.J., dissenting) (footnotes and internal quotation marks omitted), cert. denied,
135 S. Ct. 1159 (2015).
5
Garcia v. Kubosh, 377 S.W.3d 89, 97 (Tex. App.—Houston [1st Dist.]
2012, no pet.).
6
See Tex. Const. art. III, § 1; Miller v. French, 530 U.S. 327, 341, 120 S.
Ct. 2246, 2255 (2000); Ex parte Hayward, 711 S.W.2d 652, 655 (Tex. Crim. App.
1986); Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App.), cert. denied, 417
U.S. 968 (1974); David v. State, 453 S.W.2d 172, 179 (Tex. Crim. App. 1970),
vacated in part on other grounds, 408 U.S. 937, 937, 92 S. Ct. 2862, 2862
(1972); Sasser v. State, 131 Tex. Crim. 347, 349, 98 S.W.2d 211, 212 (1936).
7
See Ex parte Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978)
(relying on Margolin v. State, 151 Tex. Crim. 132, 138, 205 S.W.2d 775, 778–79
(1947), and Williams v. State, 146 Tex. Crim. 430, 438–39, 176 S.W.2d 177, 183
3
terms that overlap and conflict so that an ordinary person cannot tell which
statute he or she has violated or whether he or she has violated a criminal
statute, the legislature, and no other branch of government, has the authority to
establish certainty in the law.8 Other branches of government may not determine
the elements of an offense on an ad hoc basis.9 To hold otherwise is to
disregard the clear mandate of the due process guarantees of our state and
federal constitutions.10
Not only must a statute be sufficiently specific to place the ordinary citizen
on notice of the forbidden conduct; it must also provide sufficient notice to law
enforcement personnel to prevent arbitrary or discriminatory enforcement.11 A
(1943)); see also In re Johnson, 554 S.W.2d 775, 781–82 (Tex. Civ. App.—
Corpus Christi 1977), writ ref’d n.r.e., 569 S.W.2d 882, 883 (Tex. 1978).
8
Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839,
843 (1972).
9
See Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858
(1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498–504, 102 S. Ct. 1186, 1193–96 (1982); Smith v. Goguen, 415 U.S. 566,
575–82, 94 S. Ct. 1242, 1248–52 (1974); Grayned v. Rockford, 408 U.S. 104,
108, 92 S. Ct. 2294, 2298–99 (1972); Kramer v. Price, 712 F.2d 174, 176–78
(5th Cir. 1983), reh’g en banc granted, 716 F.2d 284 (5th Cir. 1983), grant of
relief aff’d, 723 F.2d 1164 (5th Cir. 1984).
10
See Grayned, 408 U.S. at 108, 92 S. Ct. at 2298–99; Kramer, 712 F.2d
at 178.
11
Chicago v. Morales, 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999)
(holding loitering ordinance unconstitutionally vague because it “afford[ed] too
much discretion to the police and too little notice to citizens who wish[ed] to use
the public streets”); Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App.
1989).
4
statute must be sufficiently definite to avoid the possibility of arbitrary and erratic
arrests and convictions.12 Lack of notice and the lack of guidelines for law
enforcement each provide an independent ground for finding a statute void for
vagueness.13
A penal statute encourages arbitrary enforcement when it fails to provide
clear guidelines, thereby giving law enforcement officials unbounded discretion to
apply the law selectively.14
The pertinent portion of the theft statute in the penal code provides that no
matter how minimal the value, a person commits a state jail felony if “the value of
the property stolen is less than $20,000 and the property stolen is” aluminum,
bronze, copper, or brass.15 At the same time, the occupations code provides a
different offense level and therefore a different punishment. Under the
occupations code, theft by purchase, and thereby possession, of stolen regulated
metals is a misdemeanor that may be enhanced by evidence of prior
12
Kolender, 461 U.S. at 357, 103 S. Ct. at 1858; Papachristou, 405 U.S. at
162, 92 S. Ct. at 843.
13
Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1985), cert.
denied, 479 U.S. 815 (1986); State v. Wofford, 34 S.W.3d 671, 679 (Tex. App.—
Austin 2000, no pet.).
14
May v. State, 765 S.W.2d 438, 440 (Tex. Crim. App. 1989) (op. on reh’g);
Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. [Panel Op.] 1982);
Wofford, 34 S.W.3d at 680.
15
See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).
5
convictions.16 Section 1956.001 of the occupations code defines different
“materials,” “regulated materials,” and “regulated metals”:
(1) “Aluminum material” means a product made from aluminum,
an aluminum alloy, or an aluminum by-product. The term
includes aluminum wiring and an aluminum beer keg but does
not include another type of aluminum can used to contain a
food or beverage.
(2) “Bronze material” means:
(A) a cemetery vase, receptacle, or memorial made from
bronze;
(B) bronze statuary; or
(C) material readily identifiable as bronze, including bronze
wiring.
....
(4) “Copper or brass material” means:
(A) a power inverter or insulated or noninsulated copper
wire or cable that contains copper or an alloy of copper
or zinc and is of the type used by:
(i) a public utility or common carrier;
(ii) a telecommunications provider as defined by
Section 51.002, Utilities Code;
(iii) a cable service provider as defined by Section
66.002, Utilities Code; or
(iv) a video service provider as defined by Section
66.002, Utilities Code;
(B) a copper or brass item of a type commonly used in
16
Tex. Occ. Code Ann. § 1956.040(b)–(b-1) (West Supp. 2015).
6
construction or by:
(i) a public utility;
(ii) a telecommunications provider as defined by
Section 51.002, Utilities Code;
(iii) a cable service provider as defined by Section
66.002, Utilities Code; or
(iv) a video service provider as defined by Section
66.002, Utilities Code; or
(C) copper pipe or copper tubing.
....
(6-a) “Lead material” means:
(A) a commercial grade lead battery, lead-acid battery, or
spiral cell battery; or
(B) a material or an item readily identifiable as being made
of or containing lead.
....
(9) “Regulated material” means:
(A) aluminum material;
(B) bronze material;
(C) copper or brass material;
(D) lead material; or
(E) regulated metal.
(10) “Regulated metal” means:
(A) manhole covers;
(B) guardrails;
7
(C) metal cylinders designed to contain compressed air,
oxygen, gases, or liquids;
(D) beer kegs made from metal other than aluminum;
(E) historical markers or cemetery vases, receptacles, or
memorials made from metal other than aluminum;
(F) unused rebar;
(G) street signs;
(H) drain gates;
(I) safes;
(J) communication, transmission, and service wire or cable;
(K) condensing or evaporator coils for central heating or air
conditioning units;
(L) utility structures, including the fixtures and hardware;
(M) aluminum or stainless steel containers designed to hold
propane for fueling forklifts;
(N) metal railroad equipment, including tie plates, signal
houses, control boxes, signs, signals, traffic devices,
traffic control devices, traffic control signals, switch
plates, e-clips, and rail tie functions;
(O) catalytic converters not attached to a vehicle;
(P) fire hydrants;
(Q) metal bleachers or other seating facilities used in
recreational areas or sporting arenas;
(R) any metal item clearly and conspicuously marked with
any form of the name, initials, or logo of a governmental
entity, utility, cemetery, or railroad;
(S) insulated utility, communications, or electrical wire that
has been burned in whole or in part to remove the
insulation;
8
(T) backflow valves;
(U) metal in the form of commonly recognized products of
the industrial metals recycling process, including bales,
briquettes, billets, sows, ingots, pucks, and chopped or
shredded metals; and
(V) commercial grade lead batteries or lead-acid batteries.17
So if the person purchases and thereby possesses certain stolen metals included
in the penal code section 31.03(e)(4)(F) list—aluminum, copper, bronze, and
brass18—knowing the metal is stolen, and regardless of the amount or value, it
appears that the offense is a Class A misdemeanor under the occupations
code.19
Thus, if I knowingly go to my local fence and purchase stolen “aluminum
material,” I have committed a Class A misdemeanor,20 unless, of course, either
the arresting officer or the prosecutor decides to prosecute the “aluminum
material” as plain aluminum. Then, I may be charged with a state jail felony
unless I buy more than $20,000 worth.21 If I steal a $1,400 silver coin, I have
committed a Class A misdemeanor,22 but if I pick an aluminum can up off the
17
Id. § 1956.001.
18
See Tex. Penal Code Ann. § 31.03(e)(4)(F).
19
See Tex. Occ. Code Ann. §§ 1956.001(9), .040(b)–(b-1).
20
See id. §§ 1956.001(9), .040(b)–(b-1).
21
See Tex. Penal Code Ann. § 31.03(b)(2), (e)(4)(F).
22
See id. § 31.03(e)(3).
9
street and someone else claims it belongs to him, I am facing a state jail felony
charge,23 unless either the arresting officer or the prosecutor decides to
prosecute me based on the value of the can under section 31.03(e)(1) of the
penal code, in which case theft of that same can becomes a Class C
misdemeanor carrying no jail time.24 And what about the sandwich I take out of
the office refrigerator because I’m really hungry? If the sandwich is wrapped in
aluminum foil, the theft is a state jail felony.25 If that same sandwich is in a
plastic baggie, the theft is only a Class C misdemeanor.26
My confusion has many sources. What constitutes aluminum, bronze,
copper, or brass for purposes of penal code section 31.03(e)(4)(F)? Does each
term mean something made of the respective metal, alloyed with the respective
metal, containing the respective metal, or decorated with the respective metal? If
I steal an automobile and some of its parts are made of aluminum, have I stolen
a car, aluminum, or both? That is, have I committed two offenses? When a
person, such as Appellee, is accused of stealing aluminum bats, is he accused of
committing one offense or two? What about copper coins? Does the theft of
23
See id. § 31.03(e)(4)(F).
24
See id. § 31.03(e)(1).
25
See id. § 31.03(e)(4)(F).
26
See id. § 31.03(e)(1).
10
each coin constitute a separate offense?27
Most baking powders for the home and antiperspirant deodorants contain
aluminum.28 If I grab a biscuit off the buffet without paying for it, am I going to be
charged with a state jail felony? How much of the object must be of the
forbidden metal? More than 50%? Any amount? From the wording of the
statute,29 logic suggests that the object must be primarily made of the forbidden
metal. Otherwise, why would the statute specifically enumerate aluminum,
copper, brass, and bronze,30 since brass and bronze are alloys containing copper
and sometimes aluminum.31 Indeed, bronze is an alloy consisting primarily of
copper.32 Are courts to conclude that any amount of the forbidden metal dooms
the object in which it may hide? Are courts to hold that an object must contain
sufficient forbidden metal that a person knows that he possesses it, as courts
27
See Johnson v. State, 364 S.W.3d 292, 297 (Tex. Crim. App.) (“Theft has
two gravamina: the property and ownership.”), cert. denied, 133 S. Ct. 536
(2012).
28
Baking Powder, Wikipedia, The Free Encyclopedia, https://en.wikipedia.
org/wiki/Baking_powder#Usage_of_aluminum_compounds (last visited July 27,
2016) (permalink at https://en.wikipedia.org/w/index.php?title=Baking_powder&
oldid=707002615); Antiperspirant Safety: Should You Sweat It?, WebMD,
http://www.webmd.com/skin-problems-and-treatments/features/antiperspirant-fac
ts-safety (last visited July 27, 2016).
29
See Tex. Penal Code Ann. § 31.03(e)(4)(F).
30
See id.
31
Brass vs. Bronze, Diffen, http://www.diffen.com/difference/Brass_vs_
Bronze (last visited July 27, 2016).
32
Id.
11
have held regarding controlled substances?33 Or is it sufficient that someone
knows it?
And returning to coins, does copper plating transform a penny from zinc to
copper? Or is it a state jail felony to steal a 1981 penny but a Class C
misdemeanor to steal a 1943 penny because it was made with no copper?34 The
legislature does not inform us. Does this mean that the police officer or the
prosecutor decides this issue on an ad hoc basis?
As section 31.03 of the penal code and section 1956.040(b)–(b-1) of the
occupations code currently exist, the same act may be punished as a Class C
misdemeanor, a Class A misdemeanor, or a state jail felony, depending on the
whim or sound judgment of the arresting officer or the prosecutor, not the
legislature. If the officer decides the offense is a Class C misdemeanor, there
will likely be no arrest because the penalty carries no jail time and custodial
arrest requires promptly taking the defendant before a magistrate.35 If the officer
decides the offense is a Class A misdemeanor, the bail amount will likely be
33
See Shults v. State, 575 S.W.2d 29, 29 (Tex. Crim. App. [Panel Op.]
1979).
34
Which U.S. Coin Has Absolutely No Copper in It?, About.com,
http://coins.about.com/od/uscoins/f/coin_nocopper.htm (last visited July 27,
2016).
35
See Tex. Code Crim. Proc. Ann. art. 14.06(b) (West Supp. 2015)
(allowing peace officer to issue citation to person charged with Class C offense
instead of taking the person before a magistrate); Tex. Penal Code Ann. § 12.23
(West 2011) (providing Class C punishment is a fine up to $500); Berrett v. State,
152 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
12
lower than if the officer decides the offense is a felony.36 Similarly, the ultimate
punishment ranges from a tiny fine to two years’ imprisonment and a large fine,
dependent on the officer’s choice.37 And after the officer makes this
determination, the prosecutor weighs in and may make different determinations,
both the officer and the prosecutor acting within the discretion improperly
delegated them by the legislature. This is the very definition of unbounded
discretion.
As the Texas Court of Criminal Appeals has repeatedly reminded us,
The federal constitution affords the states broad authority to
narrowly construe a statute to avoid a constitutional violation. . . .
Texas courts have a duty to employ a reasonable narrowing
construction for that purpose. But . . . a narrowing construction
should be employed only if the statute is readily susceptible to one.
We may not rewrite a statute that is not readily subject to a
narrowing construction because such a rewriting constitutes a
serious invasion of the legislative domain and would sharply diminish
the legislature’s incentive to draft a narrowly tailored statute in the
first place.
. . . [A] law “is not susceptible to a narrowing construction
when its meaning is unambiguous.” This statement accords with our
36
See Ex parte Castellanos, 420 S.W.3d 878, 882 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (“The defendant’s potential sentence and the nature of
the crime are significant factors for us to consider when assessing the
reasonableness of a bail amount.”) (citing Montalvo v. State, 315 S.W.3d 588,
593 (Tex. App.—Houston [1st Dist.] 2010, no pet.), and Ex parte Hunt, 138
S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pets. ref’d)).
37
Compare Tex. Penal Code Ann. § 12.23 (providing that person convicted
of “Class C misdemeanor shall be punished by a fine not to exceed $500”), with
Tex. Penal Code Ann. § 12.35(a)–(b) (West Supp. 2015) (providing that person
convicted of state jail felony faces up to two years’ confinement in state jail and a
fine of up to $10,000).
13
longstanding practice of giving effect to the plain meaning of a
statute unless the language is ambiguous or the plain meaning leads
to absurd results that the legislature could not have possibly
intended. It also accords with our more recent statements that a
statute is ambiguous if the statutory language “is reasonably
susceptible to more than one understanding.”38
Penal code section 31.03(e)(4)(F) is another example of special-interest
legislation intended to benefit real estate developers who were tired of repeated
burglaries and thefts of wiring and air conditioner parts.39 With the increased
value of copper and aluminum, other owners of houses, apartments, and
buildings were also the victims of these thefts and burglaries.40 In 2011, the
governor signed Senate Bill 694, which removed the requirement that at least
50% of the stolen item be made of specific metals, such as copper or
aluminum.41 The removal of this scope limitation generated many questions.
38
Ex parte Thompson, 442 S.W.3d 325, 339–40 (Tex. Crim. App. 2014)
(citations omitted).
39
See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling
Roundup—April 2011, http://www.dallassierraclub.org/index.htm?c=con&s=24&
sc=212311 (last visited July 27, 2016); Press Release, The Office of Tex. State
Senator Royce West, Senator West Announces New State Law to Fight Metals
Theft (Apr. 4, 2008), available at http://www.senate.state.tx.us/75r/Senate/
Members/Dist23/pr08/p040408a.htm (last visited July 27, 2016).
40
See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling
Roundup—April 2011; Press Release, The Office of Tex. State Senator Royce
West, Senator West Announces New State Law to Fight Metals Theft (Apr. 4,
2008).
41
See Act eff. Sept. 1, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex.
Sess. Law Serv. 3309, 3310 (West) (codified at Tex. Penal Code Ann.
§ 31.03(e)(4)(F)).
14
That is, now that the legislature specifically removed this quantitative restriction
from section 31.03(e)(4)(F), the statute is clearly ambiguous.
The indictment that tracks that section also creates an additional
constitutional issue. The Texas Court of Criminal Appeals has repeatedly held
that generally, “an indictment tracking the language of the statute will satisfy
constitutional and statutory requirements; the State need not allege facts that are
merely evidentiary in nature.”42 In contrast, the Texas Legislature has
established a baseline for indictments requiring that “[i]f known, personal property
alleged in an indictment shall be identified by name, kind, number, and
ownership. When such is unknown, that fact shall be stated, and a general
classification, describing and identifying the property as near as may be, shall
suffice.”43
Clearly, besides ownership, the gravamen of the theft offense under
section 31.03(e)(4)(F) is theft of any amount of the forbidden metals. The
indictment that tracks the statute gives no notice of the item containing or made
of the forbidden metal. The prosecution is only for the theft of the forbidden
metal, not the rest of the item. Nor does the indictment that tracks this statute
give any notice of the identity of the item. But both the code of criminal
procedure and the Texas Court of Criminal Appeals have provided that
42
State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
43
Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009).
15
[t]he purpose of an indictment is “to give the defendant notice of the
particular offense with which he is charged, and enable the court, on
conviction, to pronounce the proper judgment”; an indictment must
also be specific enough to “enable the accused to plead the
judgment that may be given upon it in bar of any prosecution for the
same offense.”44
How does an indictment that tracks this vague statute give Appellee notice
of the particular offense with which he is charged or enable the court to
pronounce the proper judgment on conviction? How can a court conclude that
the indictment here, which does not mention the baseball bats, is sufficiently
specific to “enable the accused to plead the judgment that may be given upon it
in bar of any prosecution” for stealing those same baseball bats?
Because I believe that due process demands both that we uphold the trial
court’s decision in this specific case and that the legislature revise section
31.03(e)(4)(F) so that it provides adequate notice to citizens and law
enforcement, I must respectfully dissent.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 4, 2016
44
Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) (citing Tex.
Code Crim. Proc. Ann. arts. 21.04, 21.11 (West 2009)).
16