Bob Overman v. State of Texas

Opinion

NO. 12-01-00054-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BOB OVERMAN,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW NO. 1 OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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Bob Overman ("Appellant") appeals his conviction for intentionally and knowingly obtaining criminal history record information in an unauthorized manner and intentionally and knowingly using the information for an unauthorized purpose, ⁽¹⁾ for which he was sentenced to confinement for zero days, probated for six months, and fined seven hundred fifty dollars. Appellant raises three issues on appeal. We affirm.

Background

During March 2000, campaigns for city elections for Whitehouse, Texas were underway. The Whitehouse election secretary, Cheryl McGinnis ("McGinnis"), received information regarding mayoral candidate Christian Reagan ("Reagan") that she thought might disqualify him. McGinnis was discussing with the Whitehouse City Manager, Ronnie Fite ("Fite"), how she could gain access to Reagan's criminal records to verify his qualifications to run for office when Appellant, who was the City Marshal, entered the room and participated in the conversation as well. Fite suggested that information should be obtained from an entity other than the Whitehouse Police Department. Appellant stated that he knew of a way they could get the information, placed a phone call to Clyde Carter ("Carter") at the Overton, Texas Police Department, and requested that Carter run a criminal history report on Reagan. Carter ran the report for Appellant, even though Appellant told Carter that Reagan was a mayoral candidate. In fact Carter stated that at trial he "asked what the gentleman had done and [Appellant] said [Reagan] was running for mayor." Carter further stated that he knew that he was not supposed to run a criminal history report for such a purpose. Carter related the arrest and conviction information to Appellant over the phone and subsequently shredded the report. Appellant then announced to Carter and McGinnis that Reagan had been previously arrested for passing a bad check.

Appellant was charged with intentionally and knowingly obtaining criminal history record information in an unauthorized manner and intentionally and knowingly using the information for an unauthorized purpose. The matter subsequently proceeded to trial. A jury found Appellant guilty as charged and sentenced him to confinement for zero days, probated for six months, and fined Appellant seven hundred fifty dollars.

Legal Sufficiency

In his first issue, Appellant contends that the evidence is legally insufficient to support the jury's verdict. Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.- San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

In order to successfully prosecute a conviction pursuant to Texas Government Code section 411.085 as alleged in the indictment in this case, the State of Texas (the "State") was required to prove that Appellant intentionally or knowingly either obtained criminal history record information in an unauthorized manner, or used such information for "reasons other than criminal justice purposes." See Tex. Gov't. Code Ann. § 411.085 Appellant concedes that he intentionally and knowingly contacted Carter, who related to Appellant criminal history record information concerning Reagan. However, Appellant argues that there is no evidence that the information was obtained in an unauthorized manner or that he used the information for an unauthorized purpose. The record shows otherwise.

Section 411.083 of the Texas Government Code provides that criminal history record information maintained by the Department of Public Safety (the "Department") is confidential information for the use of the Department and may be disseminated by the Department to a criminal justice agency only for a criminal justice purpose. See Tex. Gov't. Code Ann. § 411.083 (Vernon Supp. 2002). Moreover, criminal history record information obtained from the Department by a criminal justice agency may be released by that criminal justice agency to another criminal justice agency if such release is for a criminal justice purpose. See Tex. Gov't. Code Ann. § 411.089 (Vernon 1998). The term "criminal justice purpose" means either (1) an activity that is included in the administration of criminal justice or (2) screening of applicants for employment with a criminal justice agency. See Tex. Gov't. Code Ann. § 411.082(4) (Vernon 1998). "Administration of criminal justice" means the performance of any of the following activities: detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision or rehabilitation of an offender. Tex. Code Crim. Proc. Ann. art. 60.01(1) (Vernon Supp. 2002); see also Tex. Gov't. Code Ann. § 411.082(1) (Vernon 1998). The term also includes criminal identification activities and the collection, storage, and dissemination of criminal history record information. See Tex. Code Crim. Proc. art. 60.01(1). In the instant case, Carter testified that as he ran the criminal history report, he asked Appellant what Reagan had done and that Appellant responded that Reagan was running for mayor. Further, the evidence reflects that Appellant held the office of City Marshal, which is not part of the Department of Public Safety. See Tex. Gov't. Code Ann. § 411.002(a) (Vernon Supp. 2002); Tex. Loc. Gov't. Code Ann. § 341.021, et seq. (Vernon 1999). Finally, the record indicates that Appellant was neither engaging in an activity included in the administration of criminal justice, see Tex. Code Crim. Proc. art. 60.01(1), nor screening applicants for employment with a criminal justice agency, and thus, had no right to obtain such criminal history information from the Department. ⁽²⁾ As such, there is evidence in the record to support that Appellant intentionally or knowingly obtained criminal history record information related to Reagan in an unauthorized manner. Therefore, the evidence is legally sufficient to support the jury's verdict. Appellant's first issue is overruled.

Factual Sufficiency

In his second issue, Appellant contends that the evidence is factually insufficient to support

the jury's verdict. In considering factual sufficiency, an appellate court must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The appellate court then considers all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. The appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt v. State, 932 S.W.2d 88, 96 (Tex. App.- El Paso 1996, pet. ref'd). Ultimately, a reviewing court must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Oritz v. State, No. 73692, 2002 WL 31116634, at * 5 (Tex. Crim. App. Sept. 25, 2002).

In the instant case, it is undisputed that Appellant intentionally and knowingly contacted Carter, who related to Appellant criminal history record information concerning Reagan. Appellant's reason for obtaining the information on Reagan is undisputed. Reagan was running for mayor. Such a reason is not listed under the activities comprising the administration of criminal justice, see Tex. Code Crim. Proc. art. 60.01(1), or any other section of Texas Government Code chapter 411 authorizing persons to obtain criminal history record information. ⁽³⁾

In his brief, Appellant has not cited to any contradicting great weight of evidence concerning the issue of whether the criminal history information was obtained in an unauthorized manner. Moreover, a review of the record as a whole does not uncover any such evidence so as to cause a conclusion that the proof of guilt is so obviously weak as to undermine our confidence in the jury's verdict, nor that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Therefore, the evidence is factually sufficient to support the jury's verdict. Appellant's second issue is overruled.

Vagueness

In his third issue, Appellant argues that Texas Government Code section 411.085 is unconstitutional because it fails to define proscribed conduct with sufficient definiteness that ordinary people can understand what conduct is prohibited and fails to establish guidelines which would prevent arbitrary enforcement of the law. ⁽⁴⁾ A penal law is void for vagueness if it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or fails to establish guidelines to prevent arbitrary and discriminatory enforcement of the law. City of Chicago v. Morales, 527 U.S. 41, 64-65, 119 S. Ct. 1849, 1863, 144 L. Ed. 2d 67 (1999) (O'Connor, J. concurring). A statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1986).

In the case at hand, Section 411.085 states that a person commits an offense if he knowingly or intentionally obtains criminal history record information in an unauthorized manner. See Tex. Gov't. Code 411.085(a)(1). Section 411.083 states that criminal history record information maintained by the Department is confidential information for the use of the Department and may not be disseminated by the Department except as provided by that subchapter. See Tex. Gov't. Code 411.083(a). Further, criminal history record information obtained from the Department by a criminal justice agency may be released by that criminal justice agency to another criminal justice agency if such release is for a criminal justice purpose. See Tex. Gov't. Code Ann. § 411.089. However, Appellant argues that the definition of "criminal justice purpose" is vague in that it refers to an activity that is included in the "administration of criminal justice," which is defined by Texas Code of Criminal Procedure article 60.01. See Tex. Gov't. Code § 411.082(1). Article 60.01specifically sets forth activities which comprise the "administration of criminal justice." See Tex. Code Crim. Proc. art. 60.01(1). Appellant argues that since the term "administration of criminal justice" includes the dissemination of criminal history record information, Texas Government Code section 411.082 defines the circumstances under which proscribed conduct may be conducted in terms of the proscribed conduct itself. However, since Appellant was not charged with dissemination of criminal history record information, but rather, wrongfully obtaining or using such information, he does not have standing to challenge the vagueness of the term "criminal justice purpose" on the basis that it includes the act of disseminating criminal history record information. See Ex parte Usener, 391 S.W.2d 735, 736 (Tex. Crim. App. 1965).

But even if Appellant had standing to make such a constitutional challenge, the result would not differ. The terms of the statute in question are not so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. In sum, Texas Government Code section 411.085 proscribes a person from obtaining criminal history record information in an unauthorized manner. Section 411.083 provides that criminal history record information is confidential information for use by the Department, and may be disseminated by the Department to a criminal justice agency only for a criminal justice purpose. Moreover, criminal history record information obtained from the Department by a criminal justice agency may be released by that criminal justice agency to another criminal justice agency if such release is for a criminal justice purpose. See Tex. Gov't. Code Ann. § 411.089. The term "criminal justice purpose" is defined by Section 411.082(4)(A) as "an activity that is included in the administration of criminal justice." Section 411.082(1) refers to Texas Code of Criminal Procedure article 60.01 for a definition of the term "administration of criminal justice." Article 60.01 specifically sets forth an exclusive list of activities comprising the administration of criminal justice. Thus, a person who is an authorized member of a criminal justice agency may obtain criminal history record information from the Department or from another criminal justice agency for use in the conduct of the activities set forth in Texas Code of Criminal Procedure article 60.01(1). ⁽⁵⁾ Appellant's third issue is overruled.

Accordingly, we affirm the judgment of the trial court.

LOUIS B. GOHMERT, JR.

Chief Justice

Opinion delivered October 31, in the Year of our Lord 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1. See Tex. Gov't. Code Ann. § 411.085 (Vernon 1998).

2.

Sections 411.089 through 411.136 of the Texas Government Code contain further provisions regarding who may obtain criminal history information and to what uses they may put the information. See Tex. Gov't. Code Ann. §§ 411.089-.136 (Vernon 1998 & Supp. 2002). Based on the facts of the instant case, Appellant was not authorized to obtain criminal history record information pursuant to these statutes.

3.

See n.2.

4.

The State contends that Appellant has waived this issue. However, since Appellant argued this issue in both his motion for directed verdict and as an objection to the trial court's charge, we hold that Appellant has preserved the issue for appellate review.

5.

See also n.3.