Bynum v. State

• Decision Date: 15 February 1989
• Docket Number: No. 760-86,760-86
• Citation: 767 S.W.2d 769
• Parties: Ben BYNUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 769

767 S.W.2d 769

Ben BYNUM, Appellant, v. The STATE of Texas, Appellee.

No. 760-86.

Court of Criminal Appeals of Texas En Banc.

Feb. 15, 1989.

Rehearing Denied March 15, 1989.

George Whittenburg, David Mullin, Amarillo, Michael J. Hinton, Houston, and John Wheier, Amarillo, for appellant.

Randall L. Sherrod, Dist. Atty., John L. Davis, Asst. Dist. Atty., Canyon, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was charged in a five count indictment with misapplication of fiduciary property. V.T.C.A.Penal Code § 32.45 (hereinafter § 32.45). He was found guilty by a jury of all five counts. The trial court thereafter assessed punishment at ten years confinement in the Texas Department of Corrections, probated for a period of ten years, plus a $5,000.00 fine.

The Seventh Court of Appeals affirmed the appellant's conviction in a published opinion. Bynum v. State, 711 S.W.2d 321 (Tex.App.--Amarillo 1986, pet. granted ). The appellant's motion for rehearing was overruled in another published opinion. Id. We granted the appellant's petition for discretionary review on four grounds for review challenging the legality of his conviction.

The appellant was the county judge for Potter County, Texas. In the fall of 1983, the appellant and others formed an organization called the Citizens for Progress (CFP) whose purpose was to further passage of a bond election to finance the design and construction of a new Potter County district courts facility. The appellant was a key member of CFP, particularly with regards to acquiring contributions and sufficient financing to sustain the campaign for the bond election.

In order to finance the campaign by CFP, fund raising efforts, including personal solicitation, were necessary. As a key member of the effort to obtain passage of the bond election, the appellant was the recipient of many of the contributions for the benefit of CFP. The criminal proceedings against the appellant arose from allegations that the appellant cashed ten of these contribution checks without providing a proper accounting.

The first four counts of the indictment were identical except for the dates on which the offenses were alleged to have occurred. ¹ The fifth count, comprising six paragraphs, alleged the separate offenses, although less than $200 each, were part of one scheme and continuing course of conduct and thus the aggregate amount was $200 or more but less than $10,000. The operative language of each count is exemplified by the following:

did then and there intentionally or knowingly, or recklessly misapply by dealing with property, namely: money, of the value of $200.00 or more but less than $10,000.00, contrary to an agreement under which the fiduciary, BEN BYNUM, held such property, in a manner that involved substantial risk of loss to the Citizen for Progress committee, the person for whose benefit said property was held, by cashing contribution checks donated for the Citizens for Progress committee or by failing to make and keep an account of such property or by failing to make and keep an account of such property or by failing to deposit and remit for deposit such property in a bank account of the Citizens for Progress committee. [emphasis added]

I.

Initially, the appellant challenges his conviction by contending that the court of appeals' interpretation of some of the language in V.T.C.A.Penal Code, § 32.45, ² makes the statute overbroad and vague under the Texas and Federal constitutions. ³ More specifically, the appellant complains of the term "fiduciary," as well as the terms "contrary to an agreement" and "substantial risk of loss" as used within V.T.C.A.Penal Code, § 32.45.

In resolving the appellant's contention that the evidence was insufficient to prove "an agreement" or the existence of a "substantial risk of loss," the court of appeals found it necessary to define the meaning of those terms. Consequently, we will review the appellant's contention that § 32.45, supra, is unconstitutionally overbroad and vague given the definitions provided by the court of appeals. We will not, however, examine for the first time on a petition for discretionary review the appellant's contention that the word "fiduciary," as defined in § 32.45, contributes to the vagueness of the statute. See Coplin v. State, 585 S.W.2d 734 (Tex.Cr.App.1979); Showery v. State, 678 S.W.2d 103 (Tex.App.--El Paso 1984, pet. ref'd).

In his attack on § 32.45, the appellant invokes two distinct constitutional theories. First, he argues the statute is overbroad. Or, more specifically, the court of appeals' definitions of the terms "contrary to an agreement" and "substantial risk of loss" renders § 32.45 overbroad. Second, he argues the statute is vague. Or, again, more specifically, the court of appeals' interpretation of the terms "contrary to an agreement" and "substantial risk of loss" renders § 32.45 vague.

Relative to his first complaint, under this ground for review, it must be initially observed that an attack on a statute as being overbroad is normally and traditionally reserved for complaints concerning alleged First Amendment violations. In Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1981), the Supreme Court was called upon to determine the constitutionality of an Illinois village ordinance regulating the marketing and sale of certain drug related items. The Court made the following preliminary, significant comment: "In a facial challenge to the overbreath and vagueness of a law, the court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Id., at 494, 102 S.Ct. at 1191. In other words, "[a] statute is considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the First Amendment." Clark v. State, 665 S.W.2d 476 (Tex.Cr.App.1984).

However, even if the questioned statute proscribes both unlawful conduct and conduct protected by the First Amendment does not invariably mean that it will be considered overbroad in a constitutional sense. In the relatively recent case of City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), the Supreme Court stated that "[o]nly a statute that is substantially overbroad may be invalidated on its face." Id., 107 S.Ct. at 2508. ⁴ The appellant does not allege how § 32.45, supra, improperly penalizes speech or conduct which is protected by the First Amendment. Indeed, such an assertion would be entirely groundless for the penal provision at issue criminalizes only the conduct of a fiduciary who misapplies the property of another with which he has been entrusted. The appellant's contention that § 32.45, supra, is impermissibly overbroad is without merit.

Embodied within his contention that the statute is overbroad, the appellant also argues that it is unconstitutionally vague. Unlike the claim of a statute being overbroad, a vagueness challenge is applicable to all criminal laws and not merely those that regulate speech. As a fundamental proposition, all criminal laws must give notice to the populace as to what activity is made criminal so as to provide fair notice to persons before making their activity criminal. The rationale for this is obvious: crimes must be defined in advance so that individuals have fair warning of what is forbidden. As the Supreme Court has stated: a lack of notice poses a "trap for the innocent ...," United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200 (1952) and "violates the first essential of due process." Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). ⁵

In examining a criminal statute for vagueness, one should ignore engaging in a mere rhetorical critique and instead focus the examination upon a concept of fairness. In other words, initially the inquiry must be whether the ordinary, law-abiding individual would have received sufficient information that his or her conduct risked violating a criminal law. This is what the Supreme Court meant in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), when it adopted a two part analysis:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

Id., at 108-109, 92 S.Ct. at 2298-2299.

Relative to this vagueness challenge, the appellant has offered several scenarios which, he asserts, constitute violations of § 32.45. ⁶ However, the appellant overlooks the principle that when a statute undergoes a vagueness challenge, where no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party's specific conduct. As the Supreme Court has stated:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment...