Ronny Fite v. State

• Court: Court of Appeals of Texas
• Decided: December 11, 2002
• Docket: 12-01-00222-CR
• Status: Published

Opinion

NO. 12-01-00222-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RONNY FITE,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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Ronny Fite ("Appellant") appeals his conviction for intentionally and knowingly obtaining criminal history record information for a non-criminal justice purpose, ⁽¹⁾ for which he was sentenced to confinement for one hundred eighty days, probated for one year, and fined two thousand dollars, with one thousand dollars probated for one year. 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 Appellant, who was the Whitehouse City Manager, how she could gain access to Reagan's criminal records to verify his qualifications to run for office when Bob Overman ("Overman"), the City Marshal, entered the room and participated in the conversation as well. Appellant suggested that information should be obtained from an entity other than the Whitehouse Police Department. Overman stated that he knew of a way they could get the information, and Appellant encouraged Overman to obtain the information from this alternate source. Overman 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 Overman, related the arrest and conviction information to Overman over the phone and subsequently shredded the report. Overman then announced to Appellant 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 for a non-criminal justice purpose. The matter subsequently proceeded to trial. A jury found Appellant guilty as charged and sentenced him to confinement for one hundred eighty days, probated for one year, and fined Appellant two thousand dollars, with one thousand dollars probated for one year.

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).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried. Id. Moreover, a hypothetically correct jury charge would correctly instruct the jury on the law of parties. ⁽²⁾ See Planter v. State, 9 S.W.3d 156, 158 n.3 (Tex. Crim. App. 1999); Blanco v. State, 962 S.W.2d 46, 47 (Tex. Crim. App. 1998).

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Pen. Code. Ann. § 7.01(a) (Vernon 1994). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code. Ann. § 7.02(a)(2) (Vernon 1994). Therefore, under the law of parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not have been the principal actor. See Romo v. State, 568 S.W.2d 298, 300 (Tex. Crim. App. 1977) (opinion on rehearing).

In order to successfully prosecute a conviction pursuant to Texas Government Code section 411.085 as authorized in the indictment in this case, the State of Texas (the "State") was required to prove that Appellant intentionally or knowingly used such information for an unauthorized purpose. See Tex. Gov't. Code Ann. § 411.085. Furthermore, the State could have satisfied its burden by proving that Appellant, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid another person to commit the offense. See Tex. Pen. Code. § 7.02(a)(2). It is undisputed that Overman intentionally and knowingly contacted Carter, who related to Overman criminal history record information concerning Reagan. Moreover, in his testimony to the grand jury, Appellant admitted that he suggested that Overman obtain the information on Reagan from an entity other than the Whitehouse Police Department and encouraged Overman, who claimed to have an alternate source from which to obtain the information, to procure the information from that source. However, Appellant argues that there is no evidence that he used the information for an unauthorized purpose. The record reflects 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. 2003). 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. 2003); 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, it is undisputed that the only reason Overman obtained the criminal history information on Reagan was to check his qualifications as a mayoral candidate. Further, the evidence reflects that Overman 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. 2003); Tex. Loc. Gov't Code Ann. § 341.021-341.022 (Vernon 1999). Finally, the record indicates that neither Appellant nor Overman was 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. ⁽³⁾ As such, there is evidence of record to support that Overman intentionally or knowingly obtained criminal history record information related to Reagan in an unauthorized manner. Since the record likewise reflects that Appellant encouraged Overman to obtain the information in such a manner, there was sufficient evidence to support that Appellant was criminally responsible as a party to the offense. Therefore, the evidence was 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." Ortiz v. State, No. 73692, 2002 WL 31116634, at * 5 (Tex. Crim. App. Sept. 25, 2002).

In the instant case, it is undisputed that Overman intentionally and knowingly contacted Carter, who related to Overman criminal history record information concerning Reagan. Overman's undisputed reason for obtaining the information on Reagan was to check Reagan's qualifications as a mayoral candidate. 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. ⁽⁴⁾ Finally, the evidence is undisputed that Appellant encouraged Overman to contact Overman's alternate source to obtain such information on Reagan.

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 us to conclude 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. 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. The term "criminal justice purpose" means "an activity that is included in the administration of criminal justice." Tex. Gov't Code § 411.082(4)(A). Texas Code of Criminal Procedure article 60.01 specifically sets forth activities which comprise the "administration of criminal justice." See Tex. Code Crim. Proc. art. 60.01(1).

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, a 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 December 11, in the Year of our Lord 2002.

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

(DO NOT PUBLISH)

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

December 11, in the Year of our Lord 2002

RONNIE FITE,

V.

Appellee

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Appeal from the County Court at Law

of Smith County, Texas. (Tr.Ct.No. 001-81550-01)

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THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

Louis B. Gohmert, Jr., Chief Justice.

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

THE STATE OF TEXAS

M A N D A T E

TO THE COUNTY COURT AT LAW OF SMITH COUNTY, GREETINGS:

Before our Court of Appeals for the 12^th Court of Appeals District of Texas, on the 11th day of December, 2002, the cause upon appeal to revise or reverse your judgment between

RONNIE FITE, Appellant

NO. 12-01-00222-CR and Tr. Ct. Case Number 001-81550-01

Opinion by Chief Justice Louis B. Gohmert, Jr.

THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk

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

2.

Based on our review of the record, it appears that the State requested, and the trial court granted, an instruction on the law of parties and changes to the application paragraph to include the same. However, we note that the court's charge, in its final form, is not included in the clerk's record. Furthermore, although the reporter's record indicates that the charge was read to the jury, the transcription of such a reading is omitted.

3.

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. 2003). Based on the record in the instant case, neither Appellant nor Overman was authorized to obtain criminal history record information pursuant to these statutes.

4.

See n.3.

5.

See also n.3.