Tafel, Mark Ken ( 2017 )

PD-1406&1407-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/23/2017 9:11:42 AM
March 23, 2017 Accepted 3/23/2017 9:40:22 AM
ABEL ACOSTA
No. PD-1406-16 CLERK
No. PD-1407-16
MARK KEN TAFEL § IN THE COURT OF
§
v. § CRIMINAL APPEALS
§
THE STATE OF TEXAS § OF TEXAS
APPELLANT’S MOTION FOR REHEARING
COMES NOW MARK KEN TAFEL, Appellant in the above-styled and
numbered cause, and makes and files this Motion for Rehearing, and in
support thereof shows the Court as follows:
I.
Appellant sought discretionary review of a decision by a divided Waco
Court of Appeals that use of the phrase “do not apply” in section 46.035(i)
of the Penal Code constitutes a defense rather than an exception. The Waco
majority applied section 2.03(e) of the Penal Code to reach this conclusion.
Tafel v. State, No. 10-14-00019-CR, slip op. at 3, 2016 WL 4573106 (Tex. App.—
Waco Aug. 31, 2016, pet. filed). Chief Justice Gray disagreed and concluded
that the phrase establishes an exception. Tafel v. State, No. 10-14-00019-CR,
slip op. at 34, 2016 WL 4573106 (Tex. App.—Waco Sept. 7, 2016) (Gray, C.J.,
dissenting). Resolution of this issue impacted two of the three issues
March 23, 2017
presented in Appellant’s PDR. This Court denied the PDR. Presiding Judge
Keller and Judge Newell would have granted review.
II.
Appellant presumes the primary motivation for the Court’s ruling was
the Court’s intervening decision in Baumgart v. State, No. PD-1358-15, 2017
WL 782725 (Tex. Crim. App. Mar. 1, 2017). There, the Court relied primarily
on section 2.03(e) to conclude that the phrase “do[es] not apply” indicates a
defense. Id., slip op. at 14, 2017 WL 782725, at *6. The Court then observed
how this conclusion is consistent with appellate interpretations of similar
statutory provisions. Id., slip op. at 14-17, 2017 WL 782725, at *6-7. What the
Court failed to consider, however, was the Legislature’s use of the term
“defense” in the same statute as the phrase “do[es] not apply.” Appellant
asks the Court to grant rehearing and address the effect of the seeming
conflicting use of these terms.
III.
One treatise suggests that section 2.03(e) is not necessarily dispositive.
“[C]ourts should favor a construction of a qualification as a ‘defense’ unless
the legislature’s language, the overall statutory scheme, or perhaps a
combination evidence a legislative intention to have the matter treated as an
exception.” 42 GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE
SERIES: CRIMINAL PRACTICE AND PROCEDURE § 25:71 (3d ed. 2011).
This Court recognized as much in Baumgart when it cited the
traditional rules for statutory construction from the Code Construction Act.
See Baumgart, slip op. at 4-5, 2017 WL 782725, at *2. However, the Court
omitted an important principle of statutory construction, namely, that “some
effect must be given to every word of a statute.” See Garza v. State, 213 S.W.3d
338, 349 (Tex. Crim. App. 2007); see also TEX. GOV’T CODE § 311.021(2) (“the
entire statute is intended to be effective”). This principle significantly
impacts the issue presented.
Section 46.035 uses both the term “defense” and the phrase “do not
apply” in different subsections. Subsections (h), (h-1) and (k) expressly
provide “defenses” to prosecution. See Act of May 8, 1997, 75th Leg., R.S., ch.
165, § 10.04, 1997 Tex. Gen. Laws 327, 412 (amended 2015). Conversely,
subsections (j) and (l) contain the “do-not-apply” language also found in
subsection (i). Id.
Appellant suggests that the Court should consider the “overall
statutory scheme” in construing the meaning of the phrase “do not apply”
in section 46.035(i). See DIX. & SCHMOLESKY § 25:71; see also Garza, 213 S.W.3d
at 349. By giving effect to every word in section 46.035, the Court should
construe the phrase “do not apply” to mean something other than a defense.
IV.
Resolution of this issue necessarily impacts the Second Ground for
Review presented in the PDR, namely, whether the State proved beyond a
reasonable doubt under section 46.035(i) that Appellant received effective
notice that he could not carry a concealed handgun to commissioners
meetings. For if Appellant failed to receive effective notice, then the
prohibitions of section 46.035 “do not apply.”
WHEREFORE, PREMISES CONSIDERED, Appellant requests that the
Court grant this Motion for Rehearing and such other and further relief to
which he may show himself justly entitled.
Respectfully submitted,
/s/ Alan Bennett
E. Alan Bennett
Counsel for Appellant
SBOT #02140700
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, TX 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com
Certificate of Compliance
The undersigned hereby certifies, pursuant to Rule of Appellate
Procedure 9.4(i)(3), that this computer-generated document contains 804
words.
/s/ Alan Bennett
E. Alan Bennett
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this
document has been served by email on March 23, 2017 to: (1) the elected
district attorney, B.J. Shepherd, 220thda@gmail.com; (2) the special
prosecutor, John Kuchera, johnkuchera@210law.com; and (3) the State
Prosecuting Attorney, stacey.soule@SPA.texas.gov.
/s/ Alan Bennett
E. Alan Bennett