Dunham, Marc Wakefield ( 2023 )

In the Court of Criminal
Appeals of Texas
══════════
No. PD-0831-18
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MARC WAKEFIELD DUNHAM,
Appellant
v.
THE STATE OF TEXAS
═══════════════════════════════════════
On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Harris County
═══════════════════════════════════════
YEARY, J., filed a dissenting opinion.
Appellant was charged in a single-count, single-paragraph
information with the misdemeanor offense of Deceptive Business
Practices under Section 32.42(b) of the Texas Penal Code. TEX. PENAL
DUNHAM – 2
CODE § 32.42(b). 1 Specifically, he was charged with intentionally,
1 In its entirety, Section 32.42(b) reads:
(b) A person commits an offense if in the course of
business he intentionally, knowingly, recklessly, or with
criminal negligence commits one or more of the following
deceptive business practices:
(1) using, selling, or possessing for use or
sale false weight or measure, or any other device
for falsely determining or recording any quality or
quantity;
(2) selling less than the represented
quantity of a property or service;
(3) taking more than the represented
quantity of a property or service when as a buyer
the actor furnishes the weight or measure;
(4) selling an adulterated or mislabeled
commodity;
(5) passing off property or service as that
of another;
(6) representing that a commodity is
original or new if it is deteriorated, altered,
rebuilt, reconditioned, reclaimed, used, or
secondhand;
(7) representing that a commodity or
service is of a particular style, grade, or model if it
is of another;
(8) advertising property or service with
intent:
(A) not to sell it as adver-
tised, or
DUNHAM – 3
knowingly, or recklessly committing three of the twelve modes of
deceptive business practice explicitly enumerated in the statute. Id. §
(b)(7), (9), & (12)(B). The trial court authorized the jury to convict him
without requiring it to be unanimous with respect to which of these
three alleged modes of deceptive business practice he committed, over
Appellant’s objection. On appeal, Appellant argued both that the
evidence was legally insufficient to convict him of any of the three modes
(B) not to supply reasonably
expectable public demand, unless
the advertising adequately dis-
closes a time or quantity limit;
(9) representing the price of property or
service falsely or in a way tending to mislead;
(10) making a materially false or
misleading statement of fact concerning the
reason for, existence of, or amount of a price or
price reduction;
(11) conducting a deceptive sales contest;
or
(12) making a materially false or mis-
leading statement:
(A) in an advertisement for
the purchase or sale of property or
service; or
(B) otherwise in connection
with the purchase or sale of property
or service.
TEX. PENAL CODE § 32.42(b) (emphasis reflects the three modes of deceptive
business practice Appellant is alleged to have committed).
DUNHAM – 4
alleged in the information and that the trial court erred in not requiring
a unanimous jury verdict with respect to at least one of those modes.
The court of appeals affirmed. Dunham v. State, 554 S.W.3d 222,
234 (Tex. App.⸻Houston [14th Dist.] 2018). It concluded that the
evidence was legally sufficient to support the first of the three modes of
deceptive business practice alleged (Section 32.42(b)(7)), expressing no
opinion with respect to the legal sufficiency of the evidence to establish
the other two. Id. at 227–28 & n.1. It also concluded that the trial court
did not err in failing to require jury unanimity. Id. at 234. We granted
discretionary review to consider both of these conclusions.
Today, the Court affirms the judgment of the court of appeals. It
determines that (1) the evidence was indeed legally sufficient to
establish the first alleged mode of deceptive business practice (and, like
the court of appeals, therefore does not address the sufficiency of the
evidence to support other two alleged modes), and (2) the twelve modes
of committing a deceptive business practice constitute mere manner and
means of committing the same offense, and therefore do not require jury
unanimity. I disagree on both counts, and I would reverse the judgment
of the court of appeals and remand for further proceedings. Because the
Court does not, I respectfully dissent.
I. LEGAL SUFFICIENCY TO PROVE DECEPTIVE BUSINESS PRACTICE
Section 32.42(b) makes it an offense if a person, “in the course of
business . . . intentionally, knowingly, recklessly, or with criminal
negligence commits one or more of the following deceptive business
practices[.]” TEX. PENAL CODE § 32.42(b). It then lists twelve specific acts
that would constitute actionable conduct under the statute, including
DUNHAM – 5
the three that were alleged in the information to have been committed
by Appellant, namely:
(7) representing that a commodity or service is of a
particular style, grade, or model if it is of another;
* * *
(9) representing the price of property or service falsely or
in a way tending to mislead;
* * *
(12) making a materially false or misleading statement:
* * *
(B) . . . in connection with the purchase or sale
of property or service.
TEX. PENAL CODE § 32.42(b)(7), (9), & (12)(B).
In charging Appellant with deceptive business practice number
(7), the information alleged that he represented to Eloise Moody “that a
commodity or service is of a particular style, grade, or model if it was
another, namely: by giving the impression to [Moody] that an alarm
system was a Central Security Group alarm system when it was actually
a Capital Connect alarm system[.]” 2 The court of appeals limited its
legal sufficiency analysis to determining whether the evidence
2 To the extent Appellant may have misrepresented the identity of the
home alarm company he worked for, his conduct would seem more
appropriately to fit within the theory of deceptive business practice listed in
Section 32.42(b)(5): “passing off property or service as that of another[.]” TEX.
PENAL CODE § 32.42(b)(5). But Appellant was not charged under this theory in
the information.
DUNHAM – 6
established this allegation, and did not address whether it also
sufficiently established the allegations drawn from Subsections (b)(9)
and (b)(12)(B). Dunham, 554 S.W.3d at 227–28 & n.1. The Court today
also limits its consideration accordingly. Majority Opinion at 10
(“Because the State offered sufficient evidence under the first allegation
under Section 32.42(b)(7), we need not examine the other two.”). So,
whether the evidence is legally sufficient to establish those allegations
is not presently before us.
Appellant’s brief makes what seems to me to be three arguments
why the State’s evidence failed to prove deceptive business practice
number (b)(7). Each of these distinct arguments should be addressed by
the Court’s opinion to dispose of Appellant’s sufficiency claim. But the
Court’s opinion, in my view, reaches only his first argument, failing
entirely to address his other two. So, I will identify each of them here
separately.
First, Appellant argues that there is no evidence that he ever
affirmatively represented to Moody that what he was offering her was a
commodity or service that was of a style, grade, or model different than
what it actually was. 3 This is the only argument made by Appellant that
3 See Appellant’s Brief on the Merits on Petition for Discretionary
Review at 14 (“[A]ppellant did not ‘represent’ by words or conduct that he was
selling Moody a Central system. To the contrary, he never misrepresented for
whom he worked, and she knew that she was changing her service from
Central to Capital when she executed the contract.”). The other alleged
subsections of Section 32.42(b) incorporate the concept of misleading in the
course of conducting business. E.g., TEX. PENAL CODE § 32.42(b)(9), (b)(12)(B),
quoted in the text above. But Section 32.42(b)(7) would seem to require an
explicit misrepresentation.
DUNHAM – 7
the Court today really engages with and rejects. See Majority Opinion
at 10–16 (concluding that “the word [represent] includes, and the statute
criminalizes, the defendant’s conduct leading up to and during the
completion of a business transaction” and that “Appellant’s words and
actions in their totality were either recklessly deceptive or even
intentionally engineered to confuse Moody as much as possible”). Then,
after rejecting Appellant’s argument, the Court concludes that the
evidence was sufficient to establish Appellant’s guilt under Section
32.42(b)(7).
But Appellant also argues, second, that the court of appeals’
opinion focused not on what he did say or do in his interaction with
Moody so much as on what he failed to say or do. Appellant argues that,
by shifting the focus in this way, the court of appeals has converted an
offense of commission into an offense of omission⸻without ever
identifying any specific legal duty that obliged him to act. See TEX.
PENAL CODE § 6.01(c) (“A person who omits to perform an act does not
commit an offense unless a law . . . provides that the omission is an
offense or otherwise provides that he has a duty to perform the act.”). 4
The Court makes no mention of this argument⸻even as it, like the court
of appeals, seems to focus its attention at least partly on Appellant’s
failure to act to correct any misimpression Moody may have been
4 Appellant’s Brief on the Merits on Petition for Discretionary Review
at 16–18; see also id. at 18 (“The court of appeals ignored [A]ppellant’s [S]ection
6.01(c) argument, even though he made it during oral argument.”); id. at 21
(“If the Legislature is offended by [A]ppellant’s tactics, it may amend the
statute to criminalize omissions by providing affirmative duties to act.”). Today
this Court also ignores this argument.
DUNHAM – 8
operating under. 5 See Majority Opinion at 12 (“Appellant was not
wearing a uniform nor any badges identifying the company he was there
to represent.”).
But it is Appellant’s third argument that really catches my
attention. It, too, is an argument that the Court fails to acknowledge. 6
In it, Appellant maintains that, even if he created a misimpression in
Moody’s mind (whether by commission or omission) about the particular
home security company he worked for (Central rather than Capital), this
does not amount to a representation that the commodity or service he
installed was of a “style, grade, or model” that was different than (and,
especially, inferior to) what he had offered her. 7 TEX. PENAL CODE §
32.42(b)(7) (emphasis added). In fact, Appellant insists, what he
installed was exactly the upgraded security system he promised her,
5 See TEX. PENAL CODE § 1.07(34) (“‘Omission’ means failure to act.”);
id. § 1.07(10) (“‘Conduct’ means an act or omission and its accompanying
mental state.”).
6 The court of appeals simply assumed that a misrepresentation as to
the company Appellant worked for constituted a misrepresentation about the
“style, grade, or model” of the alarm system he was offering to install, without
any analysis of the question. Dunham, 554 S.W.3d at 230. So does this Court.
Majority Opinion at 15. Neither court addresses whether Appellant might
more appropriately have been charged under Section 32.42(b)(5).
7 See Appellant’s Brief on the Merits on Petition for Discretionary
Review at 15 (“[A]ppellant did not tell or otherwise represent to Moody that he
was providing her with an updated Central system, only to cause an inferior
Capital system to be installed.”); id. at 18 (“Had he promised to install a
superior alarm system but really installed an inferior one, that act would have
violated the statute.”); id. at 19 (“Had he told her he was going to update her
system knowing that he would make no material improvements to it, or that
he would install an inferior one, his statement would have been criminal.”).
DUNHAM – 9
albeit from another service provider. 8 That it should be the product of a
different company does not, Appellant contends, constitute a deceptive
business practice⸻at least not of the kind envisioned by Subsection
(b)(7) of the statute. I find myself persuaded by this argument.
The terms “style, grade, or model” are not defined in the Penal
Code, and insofar as I know, they do not have a technical meaning to
which we must defer. Ramos v. State, 303 S.W.3d 302, 307 (Tex. Crim.
App. 2009). We may therefore resort to dictionary definitions. Id. In
doing so, we must also take heed of the “associated-words” “contextual”
canon of statutory construction, by which we are to seek the common-
denominator to discern the terms’ most apt applications. 9 A standard
dictionary from shortly before the inception of the 1974 Penal Code,
wherein Section 32.42 first appeared, 10 defines these words (as
8 See Appellant’s Brief on the Merits on Petition for Discretionary
Review at 15 (“Every affirmative representation that [A]ppellant made
regarding a commodity or service was accurate.”). Again, it was only the service
provider he was deceptive about. See TEX. PENAL CODE § 32.42(b)(5) (“passing
off property or service as that of another”).
9 See Antonin Scalia & Bryan A. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS (2012) at 195 (“When several nouns or verbs
or adjectives or adverbs⸻any words⸻are associated in a context suggesting
that the words have something in common, they should be assigned a
permissible meaning that makes them similar.”).
10 Section 32.42 appeared in its present form for the first time in the
1974 Penal Code, but it was intended to bring together previously disparate
statutory provisions. See Seth S. Searcy III & James R. Patterson, Practice
Commentary to Section 32.42, V.A.P.C. (1989), at 219 (“Many of the offenses
in this section previously appeared in scattered corners of the Texas statutes.
* * * [T]his section fills a need for a comprehensive criminal provision on
deceptive business practices.”). That Section 32.42(b) thus constitutes a
convenient compilation of previously “scattered” statutory provisions would
seem to lend itself to an inference that the subsections of present Section
DUNHAM – 10
contextually relevant) to mean the following:
“style”: “a general category based on somewhat similar
characteristics (as of outward appearance) ”. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED
(1961), at 2271.
“grade”: “a position or level in a course of advancement or
decline or in a scale of ranks, qualities, or orders”; also, “a
class constituted by things that are at the same stage or
have the same relative position, level, rank or degree”. Id.
at 984.
“model”: “structural design: PATTERN”. Id. at 1451.
The common denominator of these terms is that they go to the particular
quality, characteristic, or relative value of a thing. To represent that a
“commodity or service” is of one “style, grade, or model” when, in fact, it
is of another, by the related sense of these definitions, suggests that the
commodity or service must be represented to be of a certain distinctive
quality, characteristic, or relative value when, in fact, “it” (that is, the
“commodity or service”) is of “another” distinctive quality, characteristic,
or relative value. TEX. PENAL CODE § 32.42(b)(7). A misrepresentation
as to the source, provider, or supplier of the “commodity or service” would
not, in my view, constitute a misrepresentation of the distinctive quality,
characteristic, or value of the commodity or service itself.
It seems evident enough to me, then, that Subsection (b)(7) is
aimed at a deceptive business practice whereby a person
32.42(b) should be regarded as discrete offenses, not mere manner and means
of committing a single offense. I will speak to this at greater length in Part II
of this opinion, addressing the jury-unanimity issue.
DUNHAM – 11
mischaracterizes something about the essential nature or relative
status of the commodity or service itself, and nothing about the entity
that purports to provide that commodity or service. Understanding that
provision in this way, I conclude that the evidence is insufficient to show
commission of an offense under Section 32.42(b)(7). There is simply
nothing in the present record to show that Appellant said or did (or
failed to do) anything that would constitute a misrepresentation of the
“style, grade, or model” of the upgraded security system he offered to
Moody. While he seems plainly to have misled her (whether by act or
omission) into believing he was an agent of her current home security
company, that would seem to constitute an offense under Section
32.42(b)(5) (“passing off property or service as that of another”), which
is a mode of deceptive business practice that was not alleged. 11 He never
misled her (even assuming that simply misleading her would satisfy
Section 32.42(b)(7)) with respect to the essential nature or relative
status of the commodity or service he was offering her.
For this reason, if no other, I agree with Appellant that the
evidence is legally insufficient to establish that he committed a
deceptive business practice as defined by Section 32.42(b)(7). I would
hold the evidence legally insufficient to establish Appellant’s guilt under
that mode of deceptive business practice. I would remand the cause to
the court of appeals for an analysis of whether the evidence was legally
11 Appellant could readily have been prosecuted under this subsection—
32.42(b)(5)—for misrepresenting the service provider he worked for. And that
fact, I believe, bolsters my conclusion that Section 32.42(b)(7) should not be
understood to embrace a misrepresentation of the source, provider, or supplier
of a commodity or service, since that conduct is already plainly covered by
Section 32.42(b)(5).
DUNHAM – 12
sufficient to establish either of the other two modes of deceptive business
practice (Subsections (b)(9) and (b)(12)(B)) alleged in the information.
II. JURY UNANIMITY
This Court has observed that, “[u]nder state law, the jury must
be unanimous in finding every constituent element of the charged
offense in all criminal cases.” Jourdan v. State, 428 S.W.3d 86, 94 (Tex.
Crim. App. 2014) (citing Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim.
App. 2007)). Today, the Court seems to treat the three statutory modes
of committing deceptive business practice from Section 32.42(b) that
Appellant was alleged to have committed as if they were elements for
purposes of its legal sufficiency analysis. Majority Opinion at 9.
Anomalously, however, the Court then declares those modes to be no
more than statutory manner and means for purposes of its jury-
unanimity analysis. 12 Id. at 17. It cannot be both.
In concluding (at least for jury-unanimity purposes) that the
subsections of Section 32.42(b) are mere manner and means, the Court
focuses exclusively on one phrase from the preamble: “one or more of the
following.” Id. at 16–17. I concede that this language might suggest that
Section 32.42(b)(1) through 32.42(b)(12) ought to be considered
alternative ways of committing a single offense of deceptive business
practices. But the Court errs to limit its analysis to the import of this
phrase when there are still other relevant and weightier considerations.
12See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 43:21, at 890 (11th ed. 2011)
(“Unanimity is generally not required as to alternative theories of proof when
the statute in question establishes different modes or means by which the
offense may be committed or proven.”).
DUNHAM – 13
The Court cites O’Brien v. State, 544 S.W.3d 376, 388 (Tex. Crim.
App. 2018), for the proposition that the Legislature’s use of the language
“one or more of the following” should lead it to conclude that Sections
32.42(b)(1) through 32.42(b)(12) are mere manner and means of
committing the offense. But in construing the Organized Criminal
Activity statute in O’Brien, the Court regarded the existence of a similar
phrase as but one, albeit “important” consideration among others. On
balance, I would conclude that the various modes of deceptive business
practice listed in the statute constitute “elements” of discrete offenses,
both for purposes of a legal sufficiency analysis and for jury-unanimity
purposes.
A. Statutory History
First, there is the history of the statute to consider. In construing
a statute, the Court has often taken account of statutory history, as part
of its analysis of the literal statutory language in context. See Timmons
v. State, 601 S.W.3d 345, 354 n.50 (Tex. Crim. App. 2020) (quoting
Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS (2012), at 256: (“defining ‘statutory history’ as ‘the
statutes repealed or amended by the statute under consideration’ and
explaining that statutory history ‘form[s] part of the context of [a]
statute’”)). When the Legislature first adopted Section 32.42(b) in the
1974 Penal Code, it also repealed a number of disparate former penal
code provisions that had independently defined certain deceptive
business practices, each forming separate offenses, with the evident
purpose of simply consolidating them into a single “comprehensive”
penal provision. See Seth S. Searcy III & James R. Patterson, Practice
DUNHAM – 14
Commentary to Section 32.42, V.A.P.C. (1989), at 219 (“Many of the
offenses in this section previously appeared in scattered corners of the
Texas statutes. * * * [T]his section fills a need for a comprehensive
criminal provision on deceptive business practices.”). Nothing in the
Practice Commentary suggests that by consolidating these various
discrete offenses for the sake of convenience, the Legislature purported
to convert what had previously been elements of various distinct
statutorily actionable offenses into mere manner and means of
committing one statutory offense.
B. Type of Offense
Next, the Court fails even to inquire what type of offense Section
32.42(b) constitutes: (1) nature of conduct; (2) result of conduct; or (3)
circumstance surrounding conduct. See TEX. CODE CRIM. PROC. art. 6.03.
Nature-of-conduct offenses, the Court has said, tend to define separate
offenses in their various provisions, using “different verbs in different
subsections, an indication that the Legislature intended to punish
distinct types of conduct.” Young v. State, 341 S.W.3d 417, 424 (Tex.
Crim. App. 2011). Result-of-conduct offenses, by contrast, are typically
concerned with conduct which causes a particular harmful result, with
“cause” as the operative verb, and adverbial descriptions of disparate
ways in which the result may be “caused,” mere manner and means. Id.at 423–24. And finally, “[w]ith an offense whose criminality depends
upon the ‘circumstances surrounding the conduct,’ the focus is on the
particular circumstances that exist rather than the discrete, and
perhaps different, acts that the defendant might commit under those
circumstances.” Id. at 424. Determining the type of offense that a statute
DUNHAM – 15
creates helps to distinguish elemental conduct from the less essential
manner-and-means provisions. Id. at 423. But the Court undertakes no
such analysis today.
The literal text of Section 32.42(b) plainly incorporates both a
circumstance-surrounding-conduct component and a plethora of
distinctive potential nature-of-conduct components, making these
distinctions between (1) nature of conduct; (2) result of conduct; or (3)
circumstances surrounding conduct less determinative of the gravamen
of the offense as an analytical tool here. There is, first, the overriding
requirement in the preamble that the proscribed conduct be found to
occur “in the course of business.” This clearly constitutes a circumstance
surrounding conduct, which, in isolation, might be thought to wholly
dictate the so-called “gravamen” of the offense. See Huffman v. State,
267 S.W.3d 902, 907 (Tex. Crim. App. 2008) (“If ‘circumstances
surrounding conduct’ is the focus of the offense, then under a focus-
based approach to determining separateness of offenses, different types
of conduct could establish alternate methods of committing the same
offense rather than different offenses, so long as the circumstances
surrounding the conduct are the same.”). But there is much more to this
statute than the circumstance surrounding conduct, and the preamble
itself does not in any way describe the proscribed conduct (apart from
the culpable mental state) that constitutes the commission of the
offense, other than to set out the general descriptor: “deceptive business
practices.” 13
13I doubt this Court would uphold a convinction for an offense under
the statute if the State were to prove only that “in the course of business” the
DUNHAM – 16
When the statute then goes on to particularize the acts that give
substance to this general descriptor, it uses decidedly “nature-of-
conduct” language to do so, identifying very specific kinds of acts. That
suggests to me that the Legislature meant for those acts to constitute
separately actionable offenses; that the specifically enumerated acts
proscribed in each subsection of Section 32.42(b) should be considered
no less elemental than they would have been in the discrete former
penal code provisions from which they might have been taken. In short,
this is a statute in which the gravamen seems to derive from both the
circumstances surrounding, and also from the particular nature of, the
conduct. 14
C. Eighth-Grade Grammar
But what about the so-called “eighth-grade grammar” approach
to determining what jurors must be unanimous about? 15 It is true that,
defendant committed some “deceptive business practice” other than one of
those specifically listed among the options provided in Section 32.42(b).
14 That all twelve of the subsections of Section 32.42(b) read like
“nature-of-conduct” provisions distinguishes this case from O’Brien. There, the
Court noted that the list of predicate offenses in the Organized Criminal
Activity statute were of varying types, not limited to “nature-of-conduct” type
of offenses. O’Brien, 544 S.W.3d at 387.
15
See Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (“In
sum, we must return to eighth-grade grammar to determine what elements
the jury must unanimously find beyond a reasonable doubt. At a minimum
these are: the subject (the defendant); the main verb; and the direct object if
the main verb requires a direct object (i.e., the offense is a result-oriented
crime) . . . . Generally, adverbial phrases, introduced by the proposition ‘by,’
describe the manner and means of committing the offense. They are not the
gravamen of the offense, nor elements on which the jury must be unanimous.”)
(quoting with approval Jefferson v. State, 189 S.W.3d 305, 315–16 (Tex. Crim.
App. 2006) (Cochran, J., concurring)).
DUNHAM – 17
strictly speaking, all of the subsections of Section 32.42(b) begin with
gerunds rather than active verbs: “using, selling, or possessing”;
“selling”; “taking”; “selling”; “passing”; “representing”; “advertising”;
“representing”; “making”; “conducting”; and “making”. It might be
argued that they therefore operate more like adverbial phrases in the
so-called “eighth-grade grammar” approach this Court has adopted as a
sometimes-useful tool for discerning statutory gravamens. But this test
is not expected to “work invariably, in every scenario, to accurately
identify” the gravamen of an offense. Leza v. State, 351 S.W.3d 344, 357
(Tex. Crim. App. 2011).
Here, the statute requires both that particularly specified conduct
be committed, and that it be committed “in the course of business,”
before a completed offense may be said to have occurred. Moreover, the
statute plainly limits the ways in which “deceptive business practices”
may be committed to “the following”⸻that is to say, to those that are
exclusively listed in Sections 32.42(b)(1) through 32.42(b)(12). TEX.
PENAL CODE § 32.42(b). I doubt the Court would take the position that a
defendant may be prosecuted under the statute under some other theory
of “deceptive business practice” that is not enumerated in the statute.
In fact, the Court seems to acknowledge as much by essentially treating
the three modes of deceptive business practice alleged in the information
in this case as elements for legal sufficiency purposes. Majority Opinion
at 9. And they clearly are elemental, if only because they are exclusive.
So, why does the Court not treat them as such for unanimity purposes?
D. Culpable Mental State
This understanding of the full gravamen of Section 32.42(b) is
DUNHAM – 18
reinforced by how it assigns its culpable mental state. The Court has
said that circumstances surrounding conduct most clearly defines the
gravamen of an offense when the culpable mental state is directly
attached to it. Ramos v. State, 636 S.W.3d 646, 657 (Tex. Crim. App.
2021) (quoting Huffman, 267 S.W.3d at 908). Here, the culpable mental
state does not directly modify the circumstance-surrounding-conduct
element. Instead, the statute explicitly assigns its culpable mental
state⸻“intentionally, knowingly, recklessly, or with criminal
negligence”⸻directly to the actus reus of the offense (“deceptive
business practices”), rather than the circumstances element that
requires that those acts occur “in the course of business.” 16
It also seems an intolerable stretch to say that the explicit
culpable mental state requirement that is incorporated into the statute
should apply to the general descriptor in the preamble, but not also to
“the following” statutorily proscribed actions that give substance to that
term. 17 The information in this case, accordingly, required the jury to
find that Appellant “intentionally, knowingly and recklessly” committed
the specific three modes of deceptive business practices contained in
Subsections 32.42(b)(7), (9), and (12)(B). It did not limit the application
16 This is not to say that we might not also assign a culpable mental
state to the “in the course of business” element too, but only to point out that
the statute itself seems to directly focus its culpability component on the
specifically listed forbidden acts at least as much as on the circumstances that
must also be in place for an offense to occur.
17Moreover, again, the statute at issue in O’Brien is distinguishable. In
the Organized Criminal Activity statute, the specific intent directly modifies
the circumstance surrounding conduct. The predicate offenses must be
committed with the specific “intent to establish, maintain, or participate in a
combination or in the profits of a combination[.]” TEX. PENAL CODE § 71.02(a).
DUNHAM – 19
of the mens rea required simply to whether the specific act committed
was an undifferentiated “deceptive business practice.”
E. Double-Jeopardy Implications
Another relevant consideration is the effect that the Court’s
conclusion will have on principles of double jeopardy whenever those
issues may happen to arise with respect to Section 32.42(b). Jury
unanimity and double jeopardy “are closely intertwined strands of our
jurisprudence[,]” the Court has said, that “address the same basic
question: In a given situation, do different legal theories of criminal
liability comprise different offenses, or do they comprise alternate
methods of committing the same offense?” Nawaz v. State, ___ S.W.3d
___, No. PD-0408-21, 2022 WL 2233864, at *5 (Tex. Crim. App. June 22,
2022) (quoting Huffman, 267 S.W.3d at 905). Because the Court today
concludes (at least for jury-unanimity purposes) that the twelve
subsections of Section 32.42(b) are not elemental, a violation of any one
of them will constitute a violation of any other, and an unscrupulous
businessman may only be prosecuted once for any deceptive business
practice he may happen to commit “in the course of business.” Indeed,
given the potential breadth of that phrase⸻“in the course of
business”⸻I am not sure whether he will ever be subject to more than
one prosecution or conviction under the statute! As in O’Brien, “I have
my doubts that the Legislature contemplated such a limitation.” 544
S.W.3d at 397 (Yeary, J., dissenting).
F. Different Grades of Offense
Also as in O’Brien, the Court today does not concern itself with
the fact that Section 32.42, as a whole, sets out potentially different
DUNHAM – 20
grades of offense depending on which of the twelve subsections of Section
32.42(b) applies. See Majority Opinion at 17, n.40 (noting the different
potential grades of offense but failing to address that state of the law
because, apparently, not raised by the facts of this case, since “the three
subsections in Appellant’s charging instrument⸻b(7), b(9), and
b(12)(B)⸻are all Class A misdemeanors”). 18 On this point, I will simply
fall back on what I said in my O’Brien dissent:
I do not see how we can, with any consistency, declare that
predicate offenses are mere manner and means when
choosing among them does not determine the grade of
offense, but that they are elemental when it does. It seems
to me that they are either elemental or they are
not⸻period. I see no basis in the language of the statute to
draw a distinction. Moreover, I do not see how we can
declare that they are anything but elemental when⸻at
least sometimes⸻they determine the level of offense. See
Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005)
(a statute that indicates that an offense “is a felony of the
third degree if” certain facts are proven has plainly
identified those facts as “elements”). And if the predicate
offenses are elemental, then jury unanimity is required.
See Jourdan v. State, 428 S.W.3d [at] 94 (“Under state law,
the jury must be unanimous in finding every constituent
element of the charged offense in all criminal cases.”)
(citing Pizzo, 235 S.W.3d [at] 714).
O’Brien, 544 S.W.3d at 398 (Yeary, J. dissenting). In short, the fact that
the particular case before us does not involve different grades of offense
18All offenses under Sections 32.42(b)(7) through 32.42(b)(12) are Class
A misdemeanors. TEX. PENAL CODE § 32.42(d). But offenses committed under
the terms of Sections 32.42(b)(1) through 32.42(b)(6) may sometimes be Class
C misdemeanors, when committed only with criminal negligence and the
offender has no previous convictions for deceptive business practices, but they
are otherwise Class A misdemeanors. TEX. PENAL CODE § 32.42(c).
DUNHAM – 21
does not make the fact that the different subsections of Section 32.42(b)
carry potentially different grades of offense irrelevant to the question of
whether they define elements versus mere manner and means. 19
G. This Case is Not Like Schad and Kitchens
Section 32.42(b) is not like the statutes at issue in Schad v.
Arizona, 501 U.S. 624 (1991) (plurality opinion), and Kitchens v. State,
823 S.W.2d 256 (Tex. Crim. App. 1991). In those cases, both the United
States Supreme Court and this Court found no error in failing to require
jury unanimity with regard to statutory elements that did not constitute
the essential criminal act sought to be prohibited by a statute. Schad
involved a charge of capital murder where the jury was not required to
be unanimous about whether a murder was: (1) a felony murder, or (2)
premeditated. Schad, 501 U.S. at 627. Kitchens, similarly, involved a
charge of capital murder where the jury was not required to be
unanimous about whether the murder was committed in the course of
committing a robbery or an aggravated sexual assault. Kitchens, 823
S.W.2d at 257. In both of those cases no one questioned the fact that the
jury was required to be unanimous about whether the defendant
committed the essential murder that made his conduct criminal. But in
this case, the Court approves jury non-unanimity on the core criminal
act of the defendant as defined under the relevant statute.
Under Section 32.42(b), no deceptive business practice—even
19The Organized Criminal Activity statute has a provision that makes
the punishment contingent on the most serious predicate offense that was
committed. TEX. PENAL CODE § 71.02(b). The O’Brien Court regarded this as
another factor that favored its conclusion that the predicate offenses were not
elemental. 544 S.W.3d at 388. There is no comparable provision to be found in
Section 32.42.
DUNHAM – 22
when committed intentionally and in the course of business—is criminal
unless it involves one of the specific acts listed in Subsections (b)(1)
through (b)(12) of the statute. The prohibited acts listed there are
varied, distinctive, and exclusive. Separately, they consist of the only
actus reus options provided for in the statute. They are not mere manner
and means for committing some other actus reus found elsewhere in the
statute. And as the Court’s legal sufficiency analysis in this case
confirms, a conviction under the statute cannot stand unless proof
beyond a reasonable doubt demonstrates the defendant’s commission of
at least one of those specifically enumerated and distinctive acts.
Even the plurality in Schad allowed that “nothing in our history
suggests that the Due Process Clause would permit a State to convict
anyone under a charge of ‘Crime’ so generic that any combination of jury
findings of embezzlement, reckless driving, murder, burglary, tax
evasion, or littering, for example, would suffice for conviction.” Schad,
501 U.S. at 633. Justice Scalia agreed. Id. at 650 (Scalia, J., concurring).
It seems to me that the statute at issue here is much more like the one
a majority of the United States Supreme Court justices warned about in
Schad than like the statutes actually at issue in either that case or
Kitchens. This distinction ought to give the Court pause. And it is even
more important to examine unanimity questions like the one presented
in this case with attention to the federal precedents on the topic now
that the United States Supreme Court has confirmed that “the Sixth
Amendment’s unanimity requirement applies to state and federal
criminal trials equally.” Ramos v. Louisiana, 140 S. Ct. 1390, 1397
(2020). But the Court has not done so here.
DUNHAM – 23
H. On Balance
For all of these reasons, I ultimately conclude that Sections
32.42(b)(1) through 32.42(b)(12) are elemental, not only for legal
sufficiency purposes, but for jury-unanimity purposes as well. The Court
declares that the phrase “one or more of the following” “would be
rendered meaningless if Section 32.42(b) were to require jury unanimity
in the specific manners and means.” Majority Opinion at 16−17. I do not
agree. That “[a] person commits an offense if” he “commits one or more”
of the listed deceptive business practices could simply be the
Legislature’s way of signaling that a person who commits at least one of
the enumerated acts on a specific occasion has committed “an offense.”
TEX. PENAL CODE § 32.42(b) (emphases added). It does not necessarily
mean that if he has committed more than one of the enumerated offenses
on that occasion, he cannot separately be prosecuted for as many of the
different statutorily defined acts of deceptive business practice as he has
committed on that occasion. And it also does not necessarily mean that
jury unanimity is not required with respect to the commission of “an
offense” under any one of the enumerated theories.
And in any event, even if I agreed with the Court that my reading
of the statute did somehow render the phrase “one or more” wholly
inoperative, I would still conclude that Sections 32.42(b)(1) through
32.42(b)(12) are elemental, for the reasons I have explained above. The
“surplusage canon,” “like all other canons, . . . must be applied with
judgment and discretion, and with careful regard to context. It cannot
always be dispositive because (as with most canons) the underlying
DUNHAM – 24
proposition is not invariably true.” Antonin Scalia & Bryan A. Garner,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012), at 176. It
may be trumped by other relevant considerations, as here, I think, it is.
III. CONCLUSION
I would reverse the court of appeals’ judgment and remand the
cause for a determination of the legal sufficiency of the evidence to show
the other two modes of deceptive business practice, and, if necessary, to
determine whether the error in failing to require jury unanimity was
harmless. Because the Court does not, I respectfully dissent.
FILED: January 11, 2023
PUBLISH