Tafel, Mark Ken

• Court: Court of Appeals of Texas
• Decided: March 23, 2017
• Docket: PD-1406-16
• Status: Published

Opinion

PD-1406&1407-16 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/23/2017 9:11:42 AM March 23, 2017 Accepted 3/23/2017 9:40:22 AM ABEL ACOSTA No. PD-1406-16 CLERK No. PD-1407-16

MARK KEN TAFEL § IN THE COURT OF § v. § CRIMINAL APPEALS § THE STATE OF TEXAS § OF TEXAS

APPELLANT’S MOTION FOR REHEARING

COMES NOW MARK KEN TAFEL, Appellant in the above-styled and

numbered cause, and makes and files this Motion for Rehearing, and in

support thereof shows the Court as follows:

I.

Appellant sought discretionary review of a decision by a divided Waco

Court of Appeals that use of the phrase “do not apply” in section 46.035(i)

of the Penal Code constitutes a defense rather than an exception. The Waco

majority applied section 2.03(e) of the Penal Code to reach this conclusion.

Tafel v. State, No. 10-14-00019-CR, slip op. at 3, 2016 WL 4573106 (Tex. App.—

Waco Aug. 31, 2016, pet. filed). Chief Justice Gray disagreed and concluded

that the phrase establishes an exception. Tafel v. State, No. 10-14-00019-CR,

slip op. at 34, 2016 WL 4573106 (Tex. App.—Waco Sept. 7, 2016) (Gray, C.J.,

dissenting). Resolution of this issue impacted two of the three issues

March 23, 2017 presented in Appellant’s PDR. This Court denied the PDR. Presiding Judge

Keller and Judge Newell would have granted review.

II.

Appellant presumes the primary motivation for the Court’s ruling was

the Court’s intervening decision in Baumgart v. State, No. PD-1358-15, 2017

WL 782725 (Tex. Crim. App. Mar. 1, 2017). There, the Court relied primarily

on section 2.03(e) to conclude that the phrase “do[es] not apply” indicates a

defense. Id., slip op. at 14, 2017 WL 782725, at *6. The Court then observed

how this conclusion is consistent with appellate interpretations of similar

statutory provisions. Id., slip op. at 14-17, 2017 WL 782725, at *6-7. What the

Court failed to consider, however, was the Legislature’s use of the term

“defense” in the same statute as the phrase “do[es] not apply.” Appellant

asks the Court to grant rehearing and address the effect of the seeming

conflicting use of these terms.

III.

One treatise suggests that section 2.03(e) is not necessarily dispositive.

“[C]ourts should favor a construction of a qualification as a ‘defense’ unless

the legislature’s language, the overall statutory scheme, or perhaps a

combination evidence a legislative intention to have the matter treated as an exception.” 42 GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE

SERIES: CRIMINAL PRACTICE AND PROCEDURE § 25:71 (3d ed. 2011).

This Court recognized as much in Baumgart when it cited the

traditional rules for statutory construction from the Code Construction Act.

See Baumgart, slip op. at 4-5, 2017 WL 782725, at *2. However, the Court

omitted an important principle of statutory construction, namely, that “some

effect must be given to every word of a statute.” See Garza v. State, 213 S.W.3d

338, 349 (Tex. Crim. App. 2007); see also TEX. GOV’T CODE § 311.021(2) (“the

entire statute is intended to be effective”). This principle significantly

impacts the issue presented.

Section 46.035 uses both the term “defense” and the phrase “do not

apply” in different subsections. Subsections (h), (h-1) and (k) expressly

provide “defenses” to prosecution. See Act of May 8, 1997, 75th Leg., R.S., ch.

165, § 10.04, 1997 Tex. Gen. Laws 327, 412 (amended 2015). Conversely,

subsections (j) and (l) contain the “do-not-apply” language also found in

subsection (i). Id.

Appellant suggests that the Court should consider the “overall

statutory scheme” in construing the meaning of the phrase “do not apply”

in section 46.035(i). See DIX. & SCHMOLESKY § 25:71; see also Garza, 213 S.W.3d at 349. By giving effect to every word in section 46.035, the Court should

construe the phrase “do not apply” to mean something other than a defense.

IV.

Resolution of this issue necessarily impacts the Second Ground for

Review presented in the PDR, namely, whether the State proved beyond a

reasonable doubt under section 46.035(i) that Appellant received effective

notice that he could not carry a concealed handgun to commissioners

meetings. For if Appellant failed to receive effective notice, then the

prohibitions of section 46.035 “do not apply.”

WHEREFORE, PREMISES CONSIDERED, Appellant requests that the

Court grant this Motion for Rehearing and such other and further relief to

which he may show himself justly entitled.

Respectfully submitted,

/s/ Alan Bennett E. Alan Bennett Counsel for Appellant SBOT #02140700 Sheehy, Lovelace & Mayfield, P.C. 510 N. Valley Mills Dr., Ste. 500 Waco, TX 76710 Telephone: (254) 772-8022 Fax: (254) 772-9297 Email: abennett@slmpc.com Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 804

words.

/s/ Alan Bennett E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this

document has been served by email on March 23, 2017 to: (1) the elected

district attorney, B.J. Shepherd, 220thda@gmail.com; (2) the special

prosecutor, John Kuchera, johnkuchera@210law.com; and (3) the State

Prosecuting Attorney, stacey.soule@SPA.texas.gov.