PD-1358-15 COURT OF CRIMINAL APPEALS May 23, 2016 AUSTIN, TEXAS Transmitted 5/20/2016 4:58:05 PM Accepted 5/23/2016 6:43:17 AM ABEL ACOSTA Nos. PD-1358-15, PD-1359-15, PD-1360-15, & PD-1361-15 CLERK In the Court of Criminal Appeals At Austin Nos. 14-14-00307-CR, 14-14-00308-CR, 14-14-00309-CR, & 14-14-00310-CR In the Court of Appeals For the Fourteenth District of Texas At Houston Nos. 1909496, 1909497, 1909498, & 1909499 In County Criminal Court at Law Number Six Of Harris County, Texas ERIC L. BAUMGART Appellant V. THE STATE OF TEXAS Appellee STATE’S REPLY TO APPELLANT’S BRIEF ON THE MERITS DEVON ANDERSON District Attorney Harris County, Texas
DAN MCCRORY HEYWARD CARTER LAUREN BYRNE Assistant District Attorneys Harris County, Texas
1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/274-5826 FAX No.: 713/755-5809 Counsel for Appellee
i STATEMENT REGARDING ORAL ARGUMENT
When this Court granted discretionary review, it announced that oral
argument would not be permitted.
ii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................ ii
INDEX OF AUTHORITIES .....................................................................................iv
STATEMENT OF THE CASE................................................................................... 1
STATEMENT OF THE PROCEDURAL HISTORY ................................................ 1
STATEMENT OF FACTS ......................................................................................... 2
SUMMARY OF THE ARGUMENT ......................................................................... 7
The court of appeals did not err in its application of section 2.02 by holding that the State need not negate an exception in the indictment when the exception is in a separate statute from the statute defining the offense and a prima facie case can be made without proof negating the exception because: (1) this proposition is supported by well- established precedent from the court of criminal appeals; (2) section 2.02’s plain language does not require negation of the exceptions in the occupations code because those exceptions do not contain the mandatory language that triggers section 2.02’s application; and (3) any other interpretation of section 2.02 would result in the absurd result of requiring the State to plead and prove over 40 exceptions.
REPLY TO THE GROUND FOR REVIEW ............................................................. 7
CONCLUSION ........................................................................................................ 28
CERTIFICATE OF SERVICE ................................................................................. 29
CERTIFICATE OF COMPLIANCE ....................................................................... 30
iii INDEX OF AUTHORITIES
CASES
American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Crim. App. 1974)....................................................9, 11, 15
Arias v. State, 477 S.W.3d 925 (Tex. App.--Houston [14th Dist.] 2015, no pet.) ................ 17, 27
Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. App. 1998) ..............................................................18
Baker v. State, 132 Tex. Crim. 527, 106 S.W.2d 308 (1937) (opin. on reh’g) .............................14
Baumgart v. State, No. 14-14-00306-CR, 2015 WL 3986153 (Tex. App.--Houston [14th Dist.] June 30, 2015, pet. granted) .............1, 9, 10, 11
Bell v. State, 62 Tex. Crim. 242, 137 S.W. 670 (1911) .............................................................14
Bluitt v. State, 137 S.W.3d 51 (Tex. Crim. App. 2004)................................................................18 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) ....................................................... 18, 19
Bragg v. State, 740 S.W.2d 574 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d)......................27
Elizondo v. State, No. PD-1039-14, 2016 WL 1359341 (Tex. Crim. App. April 6, 2016) (not yet reported) ........................................................................................................ 17, 18
Gardner v. State, 478 S.W.3d 142 (Tex. App.--Houston [14th Dist.] 2015, pet. ref’d) ................... 11 Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015) ..............................................................18
iv McElroy v. State, 720 S.W.2d 490 (Tex. Crim. App. 1986) ....................................................... 16, 17
Mills v. Kennedy, 1 Bailey 17 (1828) ................................................................................................12
Mosely v. State, 18 Tex. Ct. App. 311 (1885) .................................................................................13
Newman v. State, 58 Tex. Crim. 223, 124 S.W. 956 (1910) (opin. on reh’g) ............................ 13, 16
Rosemond v. United States, 134 S.Ct. 1240 (2014) ..........................................................................................17
Salazar v. State, 423 S.W.2d 297 (Tex. Crim. App. 1968) ..............................................................15
State of Texas ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex. Crim. App. 1971) .............................................................. 11 State v. Duke, 42 Tex. 455 (1874) ........................................................................................ 12, 15
Threlkeld v. State, 558 S.W.2d 472 (Tex. Crim. App. 1977) ....................................................... 16, 18
STATUTES
TEX. OCC. CODE ANN. § 1702.001 (West 2012) ........................................................8
TEX. OCC. CODE ANN. § 1702.102 (West 2012) ....................................................2, 8 TEX. OCC. CODE ANN. § 1702.108 (West 2012) ....................................................2, 8
TEX. OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014) ..........9, 19
TEX. OCC. CODE ANN. § 1702.322 (West 2012) ........................................................3 TEX. OCC. CODE ANN. § 1702.388 (West 2012) ....................................................3, 9 TEX. PEN. CODE ANN. § 2.02 (West 2011) ...........................................................8, 18
v OTHER AUTHORITIES
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974 ....................................16
Baumgart v. State, No. PD-1358-15, 2016 WL 922166 (Tex. Crim. App. Mar. 9, 2016) (not designated for publication) .................... 7, 11
CONSTITUTIONAL PROVISIONS
TEX. CONST. art. V (1891) ........................................................................................14
TEX. CONST. art. V, §§ 3, 6 (1876) ...........................................................................13
vi TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
Appellant was charged by five indictments with the offense of violating the
Private Security Act. (CR I 10; CR II 11; CR III 11; CR IV 10; CR V 10).1 After a
jury found appellant guilty of the five charged offenses, the judge assessed
punishment at two years of community supervision for each offense. (CR I 499;
CR II 517; CR III 513; CR IV 504; CR V 497).
STATEMENT OF THE PROCEDURAL HISTORY
On June 30, 2015, the Fourteenth Court of Appeals issued a published
opinion in which it affirmed appellant’s convictions in cause numbers 1909496,
1909497, 1909498, and 1909499, and reversed his conviction in cause number
1909495. Baumgart v. State, No. 14-14-00306-CR, 2015 WL 3986153, at *6 (Tex.
App.--Houston [14th Dist.] June 30, 2015, pet. granted). The State did not file a
motion for rehearing or a petition for discretionary review (PDR) for the cause
number that was reversed.
On July 13, 2015, appellant filed a motion for rehearing for the four cause
numbers in which his convictions were affirmed. The court of appeals denied
1 “CR I” refers to the clerk’s record for cause number 1909495. “CR II” refers to the clerk’s record for cause number 1909496. “CR III” refers to the clerk’s record for cause number 1909497. “CR IV” refers to the clerk’s record for cause number 1909498. appellant’s motion on August 6, 2015. Appellant filed a PDR in these four cases
on November 25, 2015. This Court denied appellant’s PDR on March 9, 2016. On
this same date, however, this Court granted review on its own motion and directed
the parties to address a particular question.
STATEMENT OF FACTS
The licensing requirement
Renearl Bowie is an assistant director assigned to the Regulatory Services
Division of the Texas Department of Public Safety (DPS). (RR V 15-16). Director
Bowie’s division regulates the private security industry and oversees the licensing
of entities involved in that industry. (RR V 16-17). The DPS is the sole licensing
authority for the private security industry. (RR V 18).
Director Bowie explained that the Private Security Act (the Act), located in
chapter 1702 of the Texas Occupations Code, governs and regulates the private
security industry. (RR V 20). He further explained that the Act requires a security
guard to be licensed. (RR V 21, 23-26). TEX. OCC. CODE ANN. § 1702.102(a)(1)
(West 2012) (requiring license for “guard company”); TEX. OCC. CODE ANN. §
1702.108(2) (West 2012) (defining “guard company” as a person who engages in
the business of a guard on a contractual basis for another person to prevent,
observe, or detect unauthorized activity on private property). A violation of this
“CR V” refers to the clerk’s record for cause number 1909499.
2 requirement constitutes a Class A misdemeanor. (RR V 21-22). TEX. OCC. CODE
ANN. § 1702.388 (West 2012).
Director Bowie stated that the Act does provide some exceptions to the
licensing requirement. (RR V 26). Namely, there is an exception for a full-time
peace officer. (RR V 27). TEX. OCC. CODE ANN. § 1702.322(1) (West 2012).
Director Bowie explained that the Act defines a full-time officer, in part, as one
who: (1) works as a peace officer on the average of at least 32 hours a week; (2) is
compensated at least at the minimum wage; and (3) is entitled to all employee
benefits offered to a peace officer by his employing agency. (RR V 27-29, 34).
TEX. OCC. CODE ANN. § 1702.322(1)(D) (West 2012). A peace officer who does
not meet these requirements must obtain a license to work security. (RR V 34).
Director Bowie checked DPS records and determined that appellant did not
have a license during the time period spanning June to December of 2012. (RR V
36-37). In other words, appellant did not have a license to operate as a security
guard on the dates alleged in the indictments. (RR V 38; CR I 10; CR II 11; CR III
11; CR IV 10; CR V 10).
The offenses
Tammy Neuman works for a non-profit charitable organization that operates
a bingo hall that brings in about $10,000 on a daily basis. (RR V 53-55, 62, 77).
3 Given this amount of cash on hand, Neuman routinely hires uniformed police
officers to serve as “security on the premises.” (RR V 62-64).
Neuman personally knows appellant since he and her husband grew up
together. (RR V 64-65). She hired appellant to work as a security guard at the
bingo hall on occasion. (RR V 64-67). In 2012, appellant worked for her on June
23, July 2, July 7, and July 29. (RR V 74-75). Neuman thought appellant was a
full-time police officer because he wore a uniform, carried a gun, drove a police
car, and had a badge. (RR V 68-69). She also thought he worked for the Liberty
County Sheriff’s Department. (RR V 69). Appellant represented himself to her as a
full-time peace officer. (RR V 69).
When appellant was arrested on November 17, 2012, the arresting officer
found an identification card in appellant’s wallet that identified him as a reserve
police officer, with an expiration date of December 31, 2012. (RR V 188).
Appellant was not a full-time officer
To establish that appellant was not a full-time peace officer (meaning he was
required to have a security license), the State presented the testimony of Kimberly
Harris, the County Treasurer for Liberty County. (RR V 81-82). Her office
operates the payroll for the employees of Liberty County, including the constables’
precincts within Liberty County. (RR V 83-84, 86). Her office also serves as the
human resource office and, as such, it maintains files for all county employees,
4 including payroll records, retirement records, and worker’s compensation records.
(RR V 89). “[A]nything to do with an employee’s record, it comes through [her]
office.” (RR V 89). Furthermore, all county employees are eligible for health
insurance and retirement benefits. (RR V 88).
Harris searched her office’s records for paperwork associated with appellant
from 2008 through 2013. (RR V 93-94). No paychecks were issued to appellant
and there were no payroll records indicating that appellant received any
compensation from the county. (RR V 94). There was no record of any time sheets
submitted by appellant. (RR V 95). There was no record of any tax forms, such as
a W-2, for appellant. (RR V 96). There were no vehicle compensation records for
appellant. (RR V 96-97). There was no record of any county benefits being paid to
appellant. (RR V 97). As such, Harris determined appellant was never a paid
employee of Liberty County from 2008 through 2013. (RR V 97). In fact, to her
knowledge, appellant had never been an employee of Liberty County. (RR V 108).
In an effort to show that he was a full-time peace officer at the time of the
offenses (which would mean he did not need a license to work as a security guard),
appellant presented the testimony of Chad Pafford. Pafford was the elected
Constable in Liberty County from 2009 to 2013. (RR VI 75). He hired appellant as
a reserve officer in 2009. (RR VI 75, 83-84). In 2011, Pafford “changed
[appellant] over to full time.” (RR VI 79, 85). There were no funds in Pafford’s
5 budget to pay appellant any money, so he compensated appellant by providing him
the use of a “take-home car” and the use of county equipment. (RR VI 79, 101).
The car was apparently a 2000 Ford Crown Victoria with about 260,000 miles. (RR
VI 109).
Regarding the three criteria for being a full-time officer, Pafford first
claimed that appellant worked for him at least 32 hours a week. (RR VI 89).
Pafford admitted, however, that he had no paperwork documenting his claim that
appellant worked 32 hours per week. (RR VI 105). He explained that appellant
worked his 32 hours per week on the honor system. (RR VI 105).
Second, Pafford testified that he believed appellant earned minimum wage
while working for him because he considered the value of the use of the take-home
car and the county equipment to exceed minimum wage. (RR VI 108-110).
However, despite considering appellant’s use of county property to constitute
compensation in excess of minimum wage, Pafford did not report this supposed
compensation to the Liberty County Tax Assessor’s Office, the IRS, or any other
taxing authority. (RR VI 122-123).
Third, Pafford testified that when appellant became a full-time employee, he
did not get health care or a pension plan. (RR VI 103). Pafford did not know if
appellant was entitled to all benefits offered by the county. (RR VI 110). Later,
6 Pafford testified that appellant received Workmen’s Compensation benefits and
waived all other benefits. (RR VI 117).
SUMMARY OF THE ARGUMENT
The court of appeals did not err in its application of section 2.02 by holding
that the State need not negate an exception in the indictment when the exception is
in a separate statute from the statute defining the offense and a prima facie case can
be made without proof negating the exception because: (1) this proposition is
supported by well-established precedent from the court of criminal appeals; (2)
section 2.02’s plain language does not require negation of the exceptions in the
occupations code because those exceptions do not contain the mandatory language
that triggers section 2.02’s application; and (3) any other interpretation of section
2.02 would result in the absurd result of requiring the State to plead and prove over
40 exceptions.
REPLY TO THE GROUND FOR REVIEW
This Court granted review on its own motion and directed the parties to
address the following question:
Did the court of appeals err in its application of Penal Code § 2.02?
Baumgart v. State, No. PD-1358-15, 2016 WL 922166 (Tex. Crim. App. Mar. 9,
2016) (not designated for publication).
7 Relevant penal code provision
Section 2.02 of the Texas Penal Code is titled “Exception” and provides:
(a) An exception to an offense in this code is so labeled by the phrase: “It is an exception to the application of . . . .”
(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.
(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.
TEX. PEN. CODE ANN. § 2.02 (West 2011) (italics added).
Relevant chapter 1702 provisions
The offense for which appellant was convicted is not found in the penal
code; rather, the applicable statute resides in the Texas Occupations Code. Chapter
1702 of the Texas Occupations Code is known as the Private Security Act. TEX.
OCC. CODE ANN. § 1702.001 (West 2012). This Act requires a security guard to be
licensed. TEX. OCC. CODE ANN. § 1702.102(a)(1) (West 2012) (requiring license
for “guard company”); TEX. OCC. CODE ANN. § 1702.108(2) (West 2012) (defining
“guard company” as a person who engages in the business of a guard on a
contractual basis for another person to prevent, observe, or detect unauthorized
8 activity on private property). A person commits an offense if he violates this
requirement. TEX. OCC. CODE ANN. § 1702.388(a) (West 2012). Appellant was
charged with the commission of this offense by acting as a guard without a license.
(CR II 11; CR III 11; CR IV 10; CR V 10).
Subchapter N of chapter 1702 is titled “EXCEPTIONS.” This subchapter
contains 12 statutes which, collectively, provide a list of about 41 categories of
individuals to whom chapter 1702 “does not apply.” TEX. OCC. CODE ANN. §
1702.321-1702.332 (West 2012 & Supp. 2014).
The court of appeals opinion
On direct appeal, appellant argued his indictments should have been quashed
because they failed to negate the numerous exceptions listed in Subchapter N of
chapter 1702 in violation of section 2.02. (appellant’s original brief, p. 14). The
court of appeals rejected this argument. Baumgart, 2015 WL 3986153, at *2-3.
The court explained that, generally, when a penal statute embraces an exception
that is part of the statute itself, the State must negate the exception in the charging
instrument. Id. at *2. However, the court further explained that when the
exception is in a separate section from the provision that states the offense and a
prima facie case can be made without proof negating the exception, the exception
need not be negated in the charging instrument. Id. at *3 (citing American Plant
Food Corp. v. State, 508 S.W.2d 598, 604-05 (Tex. Crim. App. 1974)).
9 The court then noted that the exceptions to appellant’s charged offense are
found in a section separate from the section that provides for the offense. Id. The
court further observed that a prima facie case of the charged offense could be made
without proof negating the exceptions. Id. Under such circumstances, the court
concluded that the State was not required to negate the exceptions in the
indictments and, therefore, the trial judge did not err in denying appellant’s
motions to quash. Id.
Argument and analysis
Appellant contends that the court of appeals erred in its application of
section 2.02 by holding that “where an exception is in a separate section from the
provision that states the offense and a prima facie case can be made without proof
negating the exception, it is not an essential requirement that it be negated in the
information or complaint.” (appellant’s brief, pp. 19-20 (citing Baumgart, 2015
WL 3986153, at *3)). Appellant maintains that the applicability of section 2.02
should not depend on whether the statutory exception is housed in same statute that
defines the penal offense.
Despite appellant’s stance, the court of appeals did not err in interpreting
section 2.02 in this manner because it relied on authority from this Court in
reaching this conclusion. Namely, the court of appeals cited American Plant Food
Corp. in support of its holding that restricted section 2.02’s application to
10 situations in which the exception is located in the same statute as the offense.
Baumgart, 2015 WL 3986153, at *3. In American Plant Food Corp., this Court
held that when an “exception is in a separate section from the provision which
states the offense, and a prima facie case can be made without proof negating the
exception[, i]t is not an essential requirement that it be negated in” the charging
instrument. 508 S.W.2d at 604-05.
As an intermediate appellate court, the court of appeals was bound to follow
this precedent from the court of criminal appeals. Gardner v. State, 478 S.W.3d
142, 147 (Tex. App.--Houston [14th Dist.] 2015, pet. ref’d) (citing State of Texas ex
rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971)). Having
followed the precedent of this Court in applying section 2.02 (as it was bound to
do), the court of appeals did not “err in its application of Penal Code § 2.02.”
Baumgart, 2016 WL 922166 at *1.
Recognizing that the ruling in American Plant Food Corp. is adverse to his
position, appellant states that this Court “was wrong 42 years ago” when it issued
this opinion and prays for the overruling of this case. (appellant’s brief, pp. 25, 32).
The American Plant Food Corp. ruling, however, is not some aberrational holding
that may be lightly discarded. The proposition that an exception located in a
different statute than the offense need not be pled has roots in precedent established
11 well over a century ago and, in some instances, before this Court was created or
even before Texas became a state.
In 1874, for example, the Texas Supreme Court held that “when an offense is
created by statute, and there is an exception in the enacting clause, the indictment
must negative the exception.” State v. Duke, 42 Tex. 455, 459 (1874) (italics
added). In other words, this opinion restricted the need to plead an exception to
situations in which the exception was in the same section as the offense. Id. at
456-57. The Court explained: “The reason of this rule is that such exceptions
constitute a part of the description of the offense, and unless they are negatived no
offense is stated.” Id. at 459.
In reaching this conclusion, the Duke Court cited to an 1828 South Carolina
case which held: “It is, therefore, well established, that in declaring upon penal
statutes, where there is an exception in the enacting clause, the plaintiff must shew
[sic] that the defendant is not within the exception. If the exception be in another
and subsequent clause, then it is a matter of defence [sic], and the other party must
shew it to exempt himself from the penalty.” Id. at 460 (citing Mills v. Kennedy, 1
Bailey 17 (1828)). Therefore, through the 1874 Duke opinion, the foundation was
set for the American Plant Food Corp. ruling exactly 100 years later.
12 In 1885, after jurisdiction over criminal appeals was constitutionally
transferred from the Texas Supreme Court to the Texas Court of Appeals 2, the latter
court addressed the issue of when exceptions must be pled in the charging
instrument. Mosely v. State, 18 Tex. Ct. App. 311 (1885). The court ruled:
The provisos [exceptions] in the [statute defining the offense] are not part of the “enacting clause.” Nor are they descriptive of the offense. The “enacting clause” completely defines the offense, and prescribes the punishment therefor, without exceptions. Where the words of the statute defining the offense are so entirely separable from the exception that all the ingredients constituting the offense may be clearly and accurately alleged without any reference to the exception, then it is not necessary that the exception should be negatived. But where the exception is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the indictment must allege enough to show that the accused is not within the exception. An indictment must show a prima facie case against the defendant, and it need not do more.
Mosely, 18 Tex. Ct. App. at 312 (original italics).
In 1910, after this Court was constitutionally created3, it confirmed the
holdings in Duke and Mosely and provided the following rule of pleading: “it is
only necessary to negative exceptions when they are contained in the enacting
clause which defines the offense.” Newman v. State, 58 Tex. Crim. 223, 124 S.W.
956, 958 (1910) (opin. on reh’g). “Where an offense is created by statute, and
2 TEX. CONST. art. V, §§ 3, 6 (1876).
13 there is an exception in the enacting clause, the indictment must negative the
exception.” Id. This Court explained the reason for such a pleading rule:
This is placed on the ground that such exceptions are essentially descriptive of the offense. In the case at bar the matters relied on are purely defensive, and are contained in a different section of the law than that which defines the offense.
Id.
The following year, this Court added the proposition that the State is not
required to disprove an exception when the facts relating to the exception are
peculiarly within the defendant’s knowledge. Bell v. State, 62 Tex. Crim. 242, 137
S.W. 670, 670-71 (1911).
Finally, in 1937, this Court collected and reviewed case law on this issue
from the previous half century or so and concluded, “if such exceptions be placed
in a separate section or article from the one containing the definition of the offense,
or if they be not such as to be essential to the definition of the offense, it will not be
necessary to negative such exceptions in the indictment charging such offense.”
Baker v. State, 132 Tex. Crim. 527, 106 S.W.2d 308, 311 (1937) (opin. on reh’g).
However, the Baker Court provided an exception to this rule: “if the thing
forbidden by the particular statute under consideration could not be proved, or the
case could not be made out without proof of the so-called exception or omission,
3 TEX. CONST. art. V, §§ 4, 5 (1891).
14 then said exception would be a necessary element of the offense, and its existence
should be negatived in the indictment and find support in proof.” Id. at 311-12.
“If, however, the exception be of such form and character as that a prima facie case
could be made out against the accused for the violation charged, without proof of
the omission or exception, then clearly the Legislature might by enactment have
placed such exception in a separate article or section and there is no need for their
negation.” Id. at 312; see also Salazar v. State, 423 S.W.2d 297, 299 (Tex. Crim.
App. 1968) (reinforcing Baker holding).
Accordingly, there is a long line of precedent supporting the American Food
Plant Corp. ruling that an exception located in a separate section from the offense
need not be pled in the indictment. American Food Plant Corp., 508 S.W.2d at
604-05. Nevertheless, appellant maintains American Plant Food Corp. should be
overruled because there is no reason to differentiate between exceptions, for
pleading purposes, based on whether they are in the same statute as the charged
offense.
But both this Court and the Texas Supreme Court have provided reasons for
this rule. The Supreme Court explained that exceptions within the same statute as
the offense must be plead because: “The reason of this rule is that such exceptions
constitute a part of the description of the offense, and unless they are negatived no
offense is stated.” Duke, 42 Tex. at 459. Similarly, this Court explained that only
15 exceptions within the same statute as the offense need be pled because “such
exceptions are essentially descriptive of the offense.” Newman, 124 S.W. at 958.
Appellant also argues that the court of appeals’s reliance on the fact that the
exceptions are in a different statute than the charged offense is erroneous because
section 2.02’s plain language makes no mention of such a pleading rule. TEX. PEN.
CODE ANN. § 2.02 (West 2011). Regarding this claim, the State is certainly aware
that none of the cases it cited above (starting with the 1974 American Plant Food
Corp. case and working back in time to the cases issued in the 1800s) incorporate
section 2.02 into their analysis. This is because each of these cases predates the
effective date of section 2.02.4 Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan.
1, 1974.
So the “exceptions pleading rule” announced in those cases was a common
law rule. But section 2.02 has been interpreted as a codification of the common
law rule that an exception must be negated in the indictment only when the
exception is in the same statute as the offense. McElroy v. State, 720 S.W.2d 490,
493 (Tex. Crim. App. 1986); Threlkeld v. State, 558 S.W.2d 472, 473 (Tex. Crim.
App. 1977). On occasion, when a common law rule is codified, an aspect of the
common law rule may survive and apply to the codifying statute even though such
4 American Plant Food Corp. was actually issued several months after section 2.02 was enacted, but the offense date for that case very likely predated the enactment date, rendering the newly-created statute inapplicable to that case.
16 aspect is not specifically stated in the newly created statute. Elizondo v. State, No.
PD-1039-14, 2016 WL 1359341, at *9 (Tex. Crim. App. April 6, 2016) (not yet
reported) (legislature’s codification of provocation did not eliminate common law
element of intent even though statute did not specifically mention intent).
Therefore, the plain language of section 2.02 does not necessarily eliminate the
long-standing rule providing that exceptions need not be negated if they are located
in a section separate from the section in which the offense is defined.
Furthermore, this rule is consistent with the general proposition that the
State is not required to negate as an element of the offense matters “peculiarly
within the knowledge of the defendant” because such matters support a defensive
theory. Arias v. State, 477 S.W.3d 925, 929 (Tex. App.--Houston [14th Dist.] 2015,
no pet.) (citing Rosemond v. United States, 134 S.Ct. 1240, 1256-57 (2014)). A
review of the “exceptions” listed in the occupations code reveals that many of them
involve facts that likely would fall only within appellant’s knowledge. For
example, appellant is much better positioned to know whether he owned and
installed an alarm device on his own property. TEX. OCC. CODE ANN. §
1702.328(1) (West 2012).
Moreover, well after section 2.02 was enacted, this Court interpreted it
consistent with the common law rule that exceptions must be pled in the indictment
only when they are in the same statute as the offense. McElroy, 720 S.W.2d at 493;
17 Threlkeld, 558 S.W.2d at 473. Since the legislature has met without overturning
McElroy and Threlkeld’s construction of section 2.02, it is presumed that the
legislature intends for this construction to continue to apply to section 2.02.
Elizondo, 2016 WL 1359341, at *9 (citing Awadelkariem v. State, 974 S.W.2d 721,
725-26 (Tex. Crim. App. 1998), overruled in part by Kirk v. State, 454 S.W.3d 511,
515 (Tex. Crim. App. 2015)). Accordingly, even considering the plain language of
section 2.02, the court of appeals’s application of this statute was not erroneous.
Finally, if appellant seeks to interpret the plain language of section 2.02 in
the strictest sense, so be it. Such an approach actually may be the most expedient
way of disposing of this issue.
Under the rules of statutory construction, a reviewing court considers the
plain language of the statute and focuses on the literal text. Bluitt v. State, 137
S.W.3d 51, 54 (Tex. Crim. App. 2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex.
Crim. App. 1991). The plain and literal text of section 2.02 expressly limits it
application to an exception that is so labeled by the phrase: “It is an exception to
the application of…” TEX. PEN. CODE ANN. § 2.02(a) (West 2011). Other than an
“exception” defined by this precise language, section 2.02 does not provide for its
application to any other “exception” described in or out of the penal code.
The “exceptions” listed in the occupations code, of course, do not bear the
“It is an exception to the application of…” language mandated by section 2.02.
18 TEX. OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014). Absent
such specific language, the pleading and proof requirements of section 2.02 have
no application to the occupations code exceptions based on the plain language of
the penal code statute. Considering the plain language of section 2.02, the court of
appeals did not err in finding no error in the indictments.
However, even assuming the plain language of section 2.02 did favor
appellant’s interpretation of the statute, his claim would remain meritless. When
the application of a statute’s plain language would lead to absurd results, the
language should not be applied literally. Boykin, 818 S.W.2d at 785.
Under appellant’s interpretation of section 2.02, the State would have to
plead and prove the negation of more than 40 exceptions listed in Subchapter N,
many of which appellant is in much better position to have knowledge of than the
State. Specifically, according to appellant’s interpretation, the State would be
required to plead in the indictments that appellant was not:
- An officer or employee of the United States, this state, or a political
subdivision of the state performing official duties. TEX. OCC. CODE ANN. §
1702.321(a) (West 2012).
- A person who has full-time employment as a peace officer and who receives
compensation for private employment on an individual or an independent
19 contractor basis as a patrolman, guard, extra job coordinator, or watchman.
TEX. OCC. CODE ANN. § 1702.322(1) (West 2012).
- A reserve peace officer who is performing guard, patrolman, or watchman
duties for a county while being compensated solely by that county. TEX.
OCC. CODE ANN. § 1702.322(2) (West 2012).
- A peace officer acting in an official capacity in responding to a burglar alarm
or detection device. TEX. OCC. CODE ANN. § 1702.322(3) (West 2012).
- A person engaged in the business of electronic monitoring of an individual
as a condition of that individual’s community supervision, parole, mandatory
supervision, or release on bail, if the person does not perform any other
service that requires a license. TEX. OCC. CODE ANN. § 1702.322(4) (West
2012).
- A person employed in an employee-employer relationship exclusively and
regularly by one employer in connection with the affairs of the employer.
TEX. OCC. CODE ANN. § 1702.323(a) (West 2012).
- A manufacturer or a manufacturer’s authorized distributor while selling
equipment intended for resale. TEX. OCC. CODE ANN. § 1702.324(b)(1)
(West Supp. 2014).
- A person engaged exclusively in the business of obtaining and providing
information to: (a) determine creditworthiness; (b) collect debts, or (c)
20 ascertain the reliability of information provided by an applicant for
insurance, an indemnity, or surety bond. TEX. OCC. CODE ANN. §
1702.324(b)(2) (West Supp. 2014).
- A person engaged exclusively in the business of repossessing property that is
secured by a mortgage or other security interest. TEX. OCC. CODE ANN. §
1702.324(b)(3) (West Supp. 2014).
- A person who is engaged in the business of psychological testing or other
testing and interviewing services for preemployment purposes. TEX. OCC.
CODE ANN. § 1702.324(b)(4) (West Supp. 2014).
- A person who is engaged in obtaining information that is public information
under chapter 552 of the government code. TEX. OCC. CODE ANN. §
1702.324(b)(5) (West Supp. 2014).
- A licensed engineer practicing engineering or directly supervising
engineering practice. TEX. OCC. CODE ANN. § 1702.324(b)(6) (West Supp.
2014).
- An employee of a cattle association who inspects livestock brands under the
authority granted by the Grain Inspection, Packers and Stockyards
Administration of the U.S. Department of Agriculture. TEX. OCC. CODE
ANN. § 1702.324(b)(7) (West Supp. 2014).
21 - A landman performing activities in the course and scope of the landman’s
business. TEX. OCC. CODE ANN. § 1702.324(b)(8) (West Supp. 2014).
- An attorney engaged in the practice of law. TEX. OCC. CODE ANN. §
1702.324(b)(9) (West Supp. 2014).
- A person who obtains a document for use in litigation under an authorization
or subpoena issued for a deposition. TEX. OCC. CODE ANN. §
1702.324(b)(10) (West Supp. 2014).
- An admitted insurer, insurance adjuster, agent, or insurance broker licensed
by the state, performing duties in connection with insurance transacted by
that person. TEX. OCC. CODE ANN. § 1702.324(b)(11) (West Supp. 2014).
- A person who on his own property or on his employer’s property installs,
changes, or repairs a mechanical security device, repairs an electronic
security device, or cuts or makes a key for a security device. TEX. OCC.
CODE ANN. § 1702.324(b)(12) (West Supp. 2014).
- Security personnel working at a commercial nuclear power plant licensed by
the United States Nuclear Regulatory Commission. TEX. OCC. CODE ANN. §
1702.324(b)(13) (West Supp. 2014).
- A licensed accountant, an owner of an accounting firm, or an employee of an
accountant or accounting firm while performing regulated services. TEX.
OCC. CODE ANN. § 1702.324(b)(14) (West Supp. 2014).
22 - A retailer, wholesaler, or other person who sells mechanical security devices.
TEX. OCC. CODE ANN. § 1702.324(b)(1) (West Supp. 2014).
- Certain employees performing investigative services. TEX. OCC. CODE ANN.
§ 1702.324(b)(16) (West Supp. 2014).
- Certain licensed social workers engaged in the practice of social work. TEX.
OCC. CODE ANN. § 1702.324(b)(17) (West Supp. 2014).
- A licensed person engaged in the business of selling, maintaining, repairing,
programming, or placing lockboxes used for accessing real property. TEX.
OCC. CODE ANN. § 1702.324(b)(18) (West Supp. 2014).
- A certified automobile club that unlocks a vehicle at the owner’s request.
TEX. OCC. CODE ANN. § 1702.324(b)(19) (West Supp. 2014).
- A common carrier by rail engaged in regulated interstate commerce and
transporting commodities essential to the national defense and general
welfare of the community. TEX. OCC. CODE ANN. § 1702.325(1) (West
- An officer, employee, or agent of a common carrier while protecting the
carrier. TEX. OCC. CODE ANN. § 1702.325(2) (West 2012).
- An entity that provides medical alert services for sick or disabled people.
TEX. OCC. CODE ANN. § 1702.326(a) (West 2012).
23 - A nonprofit business or civic organization that employs a peace officer under
certain circumstances. TEX. OCC. CODE ANN. § 1702.327(1) (West 2012).
- A charitable, nonprofit organization that maintains a system of records to aid
in locating missing children. TEX. OCC. CODE ANN. § 1702.327(2) (West
- A person who owns and installs a burglar detection or alarm device on his
own property, or on someone else’s property if he does not charge a fee.
TEX. OCC. CODE ANN. § 1702.328(1) (West 2012).
- A person in the business of building construction that installs electrical
wiring and devices that may include in part the installation of a burglar
alarm or detection device. TEX. OCC. CODE ANN. § 1702.328(1) (West
- A person who sells or installs automobile burglar alarm devices. TEX. OCC.
CODE ANN. § 1702.328(3) (West 2012).
- A person who sells exclusively by e-commerce, over the counter
transactions, or mail order, alarm systems, electronic access control devices,
locks, or detection devices. TEX. OCC. CODE ANN. § 1702.328(4) (West
- A person whose activities are regulated under Article 5.43-2 of the insurance
code. TEX. OCC. CODE ANN. § 1702.329(1) (West 2012).
24 - A person who holds a license to practice as an electrician and who installs
fire or smoke detectors in single- or multi-family residences. TEX. OCC.
CODE ANN. § 1702.329(2) (West 2012).
- A person employed full time and commissioned as a campus security
personnel employee by a private institution of higher education. TEX. OCC.
CODE ANN. § 1702.330(1) (West 2012).
- A peace officer commissioned by an unincorporated municipality who is
hired under the education code on a regular basis by a private institution of
higher education. TEX. OCC. CODE ANN. § 1702.330(2) (West 2012).
- An alarm systems company that sells, installs, services, monitors, or
responds to only personal emergency response systems. TEX. OCC. CODE
ANN. § 1702.331(b)(1) (West 2012).
- An alarm systems installer who installs, maintains, or repairs only personal
emergency response systems. TEX. OCC. CODE ANN. § 1702.331(b) (West
- A manager of an alarm systems company. TEX. OCC. CODE ANN. §
1702.331(3) (West 2012).
- A security salesperson employed by an alarm systems company. TEX. OCC.
CODE ANN. § 1702.331(4) (West 2012).
25 - An owner, officer, partner, or shareholder of an alarm systems company.
TEX. OCC. CODE ANN. § 1702.33(5) (West 2012).
- A person who provides a telematics service. TEX. OCC. CODE ANN. §
1702.332(b) (West 2012).
Having to plead the negation of each of these exceptions in the indictment
would obviously be unnecessarily time consuming, but the more complicating
result would be satisfying the requirement that the State prove beyond a reasonable
doubt that appellant did not fall within any of these exceptions. TEX. PEN. CODE
ANN. § 2.02 (West 2011) (requiring State to plead and prove exceptions).
If the Sate were required to prove appellant did not fall into any of the
exceptions, a trial under the Private Security Act would devolve into a lengthy
presentation of evidence regarding otherwise meaningless topics about such
diverse matters as the business of electronically monitoring parolees, manufactured
resale equipment, debt collection businesses, repossession businesses,
psychological testing businesses, licensed engineers, cattle associations, landmen,
insurance adjusters, licensed accountants, social work, automobile clubs,
electricians, private institutions of higher education, telematics, and whether
appellant owns and installed an alarm device in his own home or possibly installed
one in someone else’s home.
26 It would be absurd to interpret section 2.02 as requiring the State to
investigate these forty-plus possible exceptions and then present evidence on each
one to prove beyond a reasonable doubt that appellant did not fall within any of the
described exceptions, particularly when the alternative is to have the defendant
(who has actual knowledge of whether he falls within any of these categories)
identify and present evidence on the exception that applies to him. Arias, 477
S.W.3d at 929 (the State is generally not required to negate as an element of the
offense matters peculiarly within the defendant’s knowledge); Bragg v. State, 740
S.W.2d 574, 576 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d) (“it is
unreasonable to expect an indictment to include negations of 18 situations in which
the offense does not apply”). By placing the responsibility of addressing the
possible exceptions on the defendant, the jury hears evidence of the single relevant
exception and is not bombarded with literally dozens of irrelevant exceptions.
Since appellant’s interpretation would produce an absurd result, it should be
rejected and the court of appeals’s application of section 2.02 should be affirmed.
Accordingly, for these various alternative reasons, the court of appeals did
not err in its application of section 2.02.
27 CONCLUSION
It is respectfully requested that the court of appeals’s judgment be affirmed.
DEVON ANDERSON District Attorney Harris County, Texas
/s/ Dan McCrory DAN McCRORY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 TBC No. 13489950 McCrory_Daniel@dao.hctx.net
28 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to
the following email addresses via TexFile:
Michael D. Gillespie Attorney at Law 226sheldon@gmail.com
Lisa C. McMinn State Prosecuting Attorney Lisa.McMinn@SPA.texas.gov
/s/ Dan McCrory DAN McCRORY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 TBC No. 13489950
29 CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has a word count of 5,948 words, based upon the representation provided by the word processing program that was used to create the document.
/s/ Dan McCrory DAN McCRORY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 TBC No. 13489950
Date: 5/20/2016