Campbell v. State

• Decision Date: 17 December 2003
• Docket Number: No. 07-02-0180-CR.,07-02-0180-CR.
• Citation: 139 S.W.3d 676
• Court: Texas Court of Appeals
• Parties: Jonathan CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

139 S.W.3d 676

Jonathan CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

No. 07-02-0180-CR.

Court of Appeals of Texas, Amarillo.

December 17, 2003.

Rehearing Overruled January 15, 2004.

Discretionary Review Refused April 28, 2004.

Appeal from the 228th District Court, Harris County, Larry Fuller, J Neal Davis, Dick Deguerin, Deguerin & Dickson, Houston, for Appellant.

Charles Rosenthal, Jr., District Attorneys Office, Harris County, Renee Magee Lori DeAngelo Fix, Asst. Dist. Attys., Houston, for Appellee.

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Appellant Jonathan Campbell appeals his conviction for the misdemeanor offense of Abuse of Official Capacity and punishment, assessed by the trial court, of a $750 fine and court costs of $240.25. He presents four issues for our review, questioning the sufficiency of the evidence, the indictment, the constitutionality of the statute under which he was charged, and recitations in the trial court's judgment. Finding merit only in appellant's fourth issue, we reform the judgment of the trial court, and affirm it.

Appellant was indicted in July 2000, for the offense of Abuse of Official Capacity.¹ The indictment alleged appellant had misused government personnel who had "come into his custody by virtue of his office and employment" when he had a subordinate perform work at his home during working hours. It also alleged the value of the misuse was greater than $20 and less than $500.

The nature of appellant's challenges necessitates a recitation of the evidence presented at trial. The occurrence giving rise to his prosecution took place on January 10, 1999. At that time appellant was a Lieutenant in the Houston Police Department assigned to the evening shift at the city's southeast jail. His duties included supervision of sergeants assigned to the jail, including Sergeant J.C. Meyers. Meyers was also assigned to the evening shift and was scheduled to work on that day. The evening shift covers 3 p.m. until 11 p.m. but, as administrative sergeant, Meyers' duties required him to work from 2:30 p.m. until 10:30 p.m. At trial Meyers testified appellant left a telephone message for him on January 9 in which appellant stated he instructed another sergeant to perform Meyers' duties on the 10th and requested Meyers to come to appellant's house about 2:30 p.m. to set up a computer. Meyers testified he took the message "as an order" rather than as a favor for appellant. Meyers called appellant on the morning of the 10th to ask appellant his address, and in that conversation told appellant he would come to appellant's house after completing work at his second job at about 12:30 p.m. Meyers arrived at appellant's house about 12:45 p.m. where appellant showed him a new computer in its box and told Meyers where he wanted it set up. Meyers spent about three hours setting up the computer and printer, somewhat longer than he expected it to take. After completing the basic setup about 3 p.m., appellant "suggested" that Meyers set up an Internet connection. Meyers spent about three more hours installing and configuring software to use a commercial service for Internet access. Part of that time was due to a problem with appellant's telephone service.

When Meyers left appellant's home about 6 p.m., he told appellant he was going to get dinner. According to Meyers, appellant said "I don't expect to see you when I get there," with reference to the jail. Meyers did not go to the jail at all on the 10th. On cross-examination, Meyers testified that, by starting the task earlier than the 2:30 time appellant's telephone message mentioned, he initially expected to be able to complete installation of the computer in time to work his entire shift at the jail, but said that he never discussed that expectation with appellant.

The State's next witness was Sergeant Kevin Bradshaw. He testified that appellant called him on January 9th and instructed him to arrive early the next day to perform roll call because Meyers would be on special assignment. According to Bradshaw, special assignment meant that an officer would be working, just not at his usual position. Bradshaw recorded Meyers on the roll call, asserting he did not know how long Meyers would be on special assignment. He did not see appellant or Meyers at the jail on January 10th.

The State presented the testimony of Captain Robert Montgomery, appellant's supervisor. He described the duties of a lieutenant in the jail division. He said appellant was Meyers' immediate supervisor and had authority to assign Meyers to special assignments which would not be optional, but would be part of Meyers' job that he would be required to perform. Appellant had never requested, and Montgomery had not authorized, appellant to work at home or to have Meyers install a computer at appellant's home. According to Montgomery, appellant had no need for Internet access to perform his duties and his administrative duties focused on reviewing correspondence generated by the sergeants he supervised rather than creating the documents.

The State called Lieutenant Michael West of the Houston Police Department who held the same position as appellant at the southeast jail but worked the night shift. He testified all the lieutenants at the jail used the same office during their respective shifts. That office contained a desktop computer and a terminal connected to the Department's mainframe computer. The desktop computer was used for word processing but did not have access to the Internet in January 1999, or at the time of trial in January 2002. West stated he was trying to get Internet access through that computer for purposes of submitting requests for "extra-job" permits and in-service training. He also testified those two Department resources became available online only in January 2002. The only time West used his home computer for Department work was occasional revision of documents drafted at the Department.

The State's final witness was Sergeant Sharon Evans, who was assigned to the internal affairs division in January 1999. On January 10, 1999, Evans and two other officers were watching appellant's house as part of another investigation into whether he was reporting to work as scheduled. When the three arrived at the house about 2:30 p.m. on January 10, 1999, they saw appellant's city vehicle and a truck registered to Meyers. They watched Meyers leave the house shortly before 6 p.m. and they remained at the house until the end of appellant's shift at 11 p.m. Portions of a video recording made by Evans were introduced into evidence.

At the conclusion of the State's case, appellant moved for a verdict of acquittal which was denied. Appellant's first witness was Sergeant Michael Murray with the Department who generally testified the administrative facilities, specifically the computers, at the southeast jail were inadequate and inferior to those in other divisions of the Department. When asked if he would have completed some reports at home if he had compatible computer equipment, Murray said he would not because the Department's policies required completion of reports during a shift, even if that required staying after the shift. He did recall compiling a wish list for the jail in early 1998, and that appellant requested inclusion of a computer with Internet access on the list.

Murray recounted a conversation with appellant concerning Meyers' appreciation for financial advice appellant gave to Meyers and Meyers' offer to help appellant with his home computer. On cross-examination, Murray said he was a "close personal friend" of appellant. The State elicited testimony from Murray that appellant actively invested in residential real estate and may have been motivated to get Internet access to further his investment activities.

Sergeant Charles Pugh, who also worked in the southeast jail under appellant also testified to the inadequacy of the computer equipment in that jail. Pugh said he did some of his administrative work on a computer at his home, he did so largely for his own convenience, and he had never been told he could not work at home. When asked if he would consider a special assignment from his supervisor as an order, Pugh responded "I think it's in all our best interest to accommodate our supervisors whether or not it's legal."

Appellant testified in his own defense. He described the mainframe terminal and desktop computers in the lieutenants' office in the southeast jail, and stated he never used the desktop computer in that office, opting to prepare documents on a newer computer in the sergeants' office. This would occasionally present a problem when appellant was drafting performance reviews on the sergeants whose office he was using. Appellant offered examples of tasks he could perform more efficiently using a computer, including recording notes from meetings he conducted, and using a calendar program to record the training schedules and records of jail employees. Appellant said a new computer would also be valuable in keeping track of property assigned to the jail. He testified that the desktop computer in the sergeants' office would not be adequate to handle these tasks. He also discussed his desire to get Internet access to research civilianization² of the jail.

When it became apparent to him in late 1998 that the Department was not going to provide a new computer for the lieutenants' office, appellant decided to buy his own. In addition to the Department-related uses described above, appellant said he also planned personal use of the computer. He had discussed his belief in the need for new computers in the jail with Meyers on more than one occasion. Appellant testified that Meyers had offered to set up a personal computer for him in the fall of 1998. He believed the offer was made as a personal favor because appellant had given Meyers advice on personal problems and financial matters,...