Celis v. State

• Decision Date: 15 May 2013
• Docket Number: Nos. PD–1584–11,PD–1585–11.,s. PD–1584–11
• Citation: 416 S.W.3d 419
• Parties: Mauricio CELIS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

416 S.W.3d 419

Mauricio CELIS, Appellant

v.The STATE of Texas.

Nos. PD–1584–11, PD–1585–11.

Court of Criminal Appeals of Texas.

May 15, 2013.

David L. Botsford, Attorney at Law, Austin, TX, for Appellant.

Ellen Stewart–Klein, Assistant Attorney General, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

ALCALA, J., announced the judgment of the Court and delivered an opinion in which KELLER, P.J., PRICE and KEASLER, JJ., joined.

In deciding the petition for discretionary review filed by Mauricio Celis, appellant, we address three jury-charge complaints. First, we determine that the offense of falsely holding oneself out as a lawyer, as it applies here, does not require an instruction as to a culpable mental state beyond the intent expressly prescribed by the plain language in that statute. SeeTex. Penal Code § 38.122. Second, we conclude that appellant was not entitled to an instruction on a mistake-of-fact defense because his requested instruction did not negate the culpability required for the offense. SeeTex. Penal Code § 8.02(a). Third, we hold that the court of appeals properly determined that the trial court's instruction on the definition of “foreign legal consultant” was not an improper comment on the weight of the evidence. SeeTex.Code Crim. Proc. art. 36.14. We affirm.

I. Background

It is undisputed that, although appellant was never licensed to practice law in Texas or any other jurisdiction, he continuously held himself out as a lawyer in Texas over a period of several years in a lucrative business. ¹ Appellant acknowledged that he did not have a “cedula,” or Mexican law license, nor a certificate from Mexico's Ministry of Education, which documents that a person currently meets the requirements to practice law in Mexico. Rather, he testified that he has a diploma in judicial sciences and that he, therefore, believed that he was “considered a lawyer in Mexico.” He called two witnesses who testified that every Mexican citizen who was of legal age and sound mind is a “licenciado,” meaning a person authorized to practice certain types of law in Mexico.

Appellant was charged with 23 counts of falsely holding himself out as a lawyer in violation of Texas Penal Code Section 38.122, which, hereafter, we refer to as the “false-lawyer statute.” Tex. Penal Code § 38.122. With respect to a culpable mental state, the trial court's instructions required the jury to determine only whether appellant intended to obtain an economic benefit for himself in holding himself out as a lawyer. The instructions did not include a culpable mental state with respect to the remaining elements that alleged that appellant had held himself out as an attorney, was not currently licensed to practice law, and was not in good standing with the State Bar of Texas and other applicable authorities. Tracking the language of the false-lawyer statute, the charge instructed, in relevant part,

Now, if you find from the evidence beyond a reasonable doubt that on or about [date], in Nueces County, Texas, the Defendant, Mauricio Celis, did then and there, with intent to obtain an economic benefit for himself, hold himself out as a lawyer, to wit: [by manner and means], and the defendant was not then and there licensed to practice law in this state, another state, or a foreign country and was not then and there in good standing with the State Bar of Texas and the state bar or licensing authority of any state or foreign country where the defendant was licensed to practice law, then you will find the defendant guilty of the offense of falsely holding himself out as a lawyer as charged in the indictment.

SeeTex. Penal Code § 38.122. In declining to instruct the jury on an additional culpable mental state, the court overruled appellant's request to add the word “intentionally” before the phrase “did then and there” so as to require the jury to find that he intended every element of the offense. The trial court also overruled appellant's request for a mistake-of-fact instruction on his alleged mistaken belief that he was licensed to practice law by, and in good standing with, the licensing authority of Mexico.

The charge defined “good standing,” stating,

“Good standing with the State Bar of Texas” means:

(1) Being a “Member in Good Standing” of the State Bar of Texas; or

(2) Being certified to practice in Texas as a Foreign Legal Consultant by the Texas Board of Law Examiners.

A “Member in Good Standing” of the State Bar of Texas is someone who meets and complies with all applicable requirements of the Rules of the Supreme Court of Texas governing admission to the bar of Texas, and who is not in default of payment of dues and who is not under suspension from practice.

A “Foreign Legal Consultant” is someone certified under the Rules of the Supreme Court of Texas governing admission to the Bar of Texas, and who is considered a lawyer affiliated with the Bar of Texas.

Appellant objected to the instruction defining the term “foreign legal consultant” as an improper comment on the weight of the evidence, which the trial court overruled. The jury found appellant guilty on 14 counts and assessed a 10–year sentence for each offense, probated for 10 years.

On appeal, appellant challenged the trial court's overruling of his three jury-charge complaints. The court of appeals upheld the trial court's rulings, determining that the statute's culpable mental state was limited to the intent to obtain an economic benefit; that no mistake-of-fact instruction was required; and that the trial court properly defined the term “foreign legal consultant.” We granted review of appellant's three jury-charge issues. ²

II. Culpable–Mental–State Analysis

In his first issue for discretionary review, appellant contends that the court of appeals erred by overruling his challenge to the trial court's denial of an instruction on a culpable mental state beyond the one prescribed in the statute. As on direct appeal, he contends that the statute defining the offense of falsely holding oneself out as a lawyer is silent on the requirement of a culpable mental state and does not plainly dispense with one, and that the trial court, therefore, was required to instruct as to one. Celis v. State, 354 S.W.3d 7, 27 (Tex.App.–Corpus Christi 2011) (citing Tex. Penal Code §§ 6.02, 38.122). The court of appeals was “not persuaded that the [statute] is silent on the requirement of a culpable mental state.” Id. It held that the statute prescribed a mental state through the requirement that the defendant act with the “intent to obtain an economic benefit for himself,” which satisfied “the traditional mens rea requirement of the criminal law.” Id. We agree.

A. Standard of Review

The trial court must give the jury a written charge that sets forth the law applicable to the case. Tex.Code Crim. Proc. art. 36.14. A charge that does not set out all of the essential elements of the offense is fundamentally defective. Martin v. State, 200 S.W.3d 635, 639 (Tex.Crim.App.2006); Zuckerman v. State, 591 S.W.2d 495, 496 (Tex.Crim.App.1979). Appellate review of claims of jury-charge error involves a determination of whether the charge is erroneous and, if it is, a harm analysis. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App.2012). Because there is no charge error in this case, we need not conduct a harm analysis.³

B. Presumption of Culpable Mental State and Statutory Interpretation

“If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” Tex. Penal Code § 6.02(b); see also Aguirre v. State, 22 S.W.3d 463, 472 (Tex.Crim.App.1999). Therefore, the two pertinent questions are whether the statute defining the offense of holding oneself out as a lawyer prescribes a culpable mental state and, if not, whether a mental state is nevertheless required. This Court has enumerated several factors that courts may consider “in deciding whether the legislature meant to impose liability without fault or, on the other hand, really meant to require fault though it failed to spell it out clearly.” Aguirre, 22 S.W.3d at 475. Factors relevant to this case include (1) the language of the statute and (2) the nature of the conduct regulated, the risk of harm to the public, and the defendant's ability to ascertain facts. Id. at 475–76.

1. Plain Language Suggests That No Additional Culpable Mental State Is Required

Statutory “words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex. Gov't Code § 311.011(a); Tovar v. State, 978 S.W.2d 584, 586 (Tex.Crim.App.1998). It is well settled that the complete omission from a statute of any mention of intent will not necessarily be construed as eliminating that element from an offense. Aguirre, 22 S.W.3d at 471. However, the prescription of a mental state as to certain portions of a statute, but not as to others, is compelling evidence that the Legislature intended to dispense with a mental state as to the latter. Id. at 473 (observing that “omission of a culpable mental state from only one of the four sections was a clear implication of the legislature's intent to dispense with a mental element in that section”).

The statute describing the offense of holding oneself out as a lawyer states, A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

Tex. Penal Code § 38.122(a). It is plain from the structure of the text in Subsection (a) that the only mental state prescribed—“with intent”—modifies and applies only to the element ...