Cullen v. State, 3-90-148-CR

• Decision Date: 24 June 1992
• Docket Number: No. 3-90-148-CR,3-90-148-CR
• Citation: 832 S.W.2d 788
• Parties: Paul Stedman CULLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 788

832 S.W.2d 788

Paul Stedman CULLEN, Appellant, v. The STATE of Texas, Appellee.

No. 3-90-148-CR.

Court of Appeals of Texas Austin.

June 24, 1992.

Terrence W. Kirk, Austin, for appellant.

Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for appellee.

Before CARROLL, C.J., and ABOUSSIE and SMITH, JJ.

SMITH, Justice.

Paul Stedman Cullen appeals his conviction for criminal mischief, see Tex.Penal Code Ann. § 28.03 (1989 & Supp.1992) ¹, arising from his poisoning of the historic "Treaty Oak" in Austin. This particular oak tree enjoys a notoriety based on its age and on historical accounts that Stephen F. Austin signed a treaty with Central Texas Indian tribes on this site. Appellant brings three points of error challenging (1) the trial court's exercise of jurisdiction, (2) the introduction of evidence obtained from a warrantless search, and (3) the jury instructions relating to the alleged destruction of the oak tree. We will affirm the conviction.

BACKGROUND

Appellant's arrest and conviction stem from his indictment for the damage and destruction of the Treaty Oak. Appellant was accused of applying the herbicide hexazinone to the historic tree without the consent of the tree's owner, causing pecuniary damage in an amount exceeding $20,000. His indictment contained an enhancement provision because appellant had previously been convicted of a burglary offense.

Appellant filed a pre-trial motion to quash the indictment, alleging that his prosecution should come under the Texas statute prohibiting the desecration of venerated objects. See 1973 Tex.Gen.Laws, ch. 399, § 1, at 883, 957 (Tex.Penal Code Ann. § 42.09, since amended). A violation of this statute is a Class A misdemeanor, see § 42.09(c), and its violation carries a less severe penalty than does the violation of the criminal mischief statute, a second-degree felony when pecuniary damage exceeds $20,000. See § 28.03(b)(5). The trial court overruled the motion and, over a plea of not guilty, the jury tried and convicted appellant of second-degree criminal mischief. He was subsequently sentenced to nine years in prison and was fined $1,000.

JURISDICTIONAL CHALLENGE

Appellant first assails the trial court's exercise of jurisdiction. He claims that the district court lacked jurisdiction to try him since he should have been charged with the "special" misdemeanor offense of desecration of a venerated object, which was not within the district court's jurisdiction. Appellant asserts that the misdemeanor statute and the felony criminal mischief statute are in pari materia, meaning they touch upon the same subject, have the same general purpose and relate to the same conduct. In pari materia is a rule of statutory construction that requires such statutes to be construed together, even if they contain no reference to each other. Appellant argues that the misdemeanor, desecration of a venerated object, is a detailed statute subsumed within the general felony offense of criminal mischief. Because it more specifically proscribes the conduct of poisoning a tree and sets forth a different punishment, he insists that the doctrine of in pari materia required the State to charge him with the more specific misdemeanor offense. We disagree.

In Cheney v. State, 755 S.W.2d 123 (Tex.Crim.App.1988), the court of criminal appeals discussed at length the doctrine of in pari materia as a principle of statutory interpretation and laid out an analytical framework for its application to criminal statutes. A reviewing court must first determine whether both provisions cover the same general subject matter or persons, and have a similar purpose or objective. If two statutes do not deal with the same subject, persons, or purposes, they are not in pari materia and other rules of statutory construction will dictate which one governs the offense in question. Id. at 127. If the statutes are in pari materia, the reviewing court must determine if they conflict by setting out different punishment for the same conduct. In this circumstance, the more specific statute controls. Id.

Section 28.03 is a general property-damage offense; its purpose is to proscribe (a) A person commits an offense if he intentionally or knowingly desecrates:

knowing or intentional damage or destruction to an owner's property. See § 28.03, Cmt. (1989). The statute's penalty provisions focus upon the amount of pecuniary loss associated with the damage or destruction to the property; lesser losses yield misdemeanor offenses; larger pecuniary losses constitute felonies. See § 28.03(b)(1-5). By contrast, section 42.09 addresses offenses against public order and decency. The desecration statute in effect at the time of the offense provided that

(1) a public monument;

(2) a place of worship or burial; or

(3) a state or national flag.

(b) For purposes of this section, "desecrate" means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his actions.

(c) An offense under this section is a Class A misdemeanor.

1973 Tex.Gen.Laws Ch. 399, § 1, at 957 (Tex.Penal Code Ann. § 42.09, since amended). The legislature has placed the desecration statute in Title 9, entitled "Disorderly Conduct and Related Offenses." Section 42.09 focuses upon conduct which the actor knows will offend another; the underlying concern is the outrage or resentment caused by knowingly desecrating a public monument. The resulting damage or destruction is not at issue and does not figure in the punishment; rather, the focus is upon the actor's offensive conduct.

These two statutes are contained in different legislative acts, address differing situations, require different elements of proof, and serve different objectives. We believe the legislature intended to define two separate offenses with different elements and different levels of punishment. It follows that section 42.09 is not a special subset of the general offense of criminal mischief. Because the forbidden conduct is different, we hold the statutes are not in pari materia. See Cheney, 755 S.W.2d at 126 ("[Pari materia ] is not applicable to enactments that cover different situations and that were apparently not intended to be considered together"); Alejos v. State, 555 S.W.2d 444, 450-51 (Tex.Crim.App.1977) (statutes treating same subject are not in pari materia where subject treated arises in different acts having different objects, and statutes not apparently intended to be considered together).

Where statutes are not in pari materia, Cheney directs us to determine whether the statutes may be harmonized or are in irreconcilable conflict. We detect no disharmony or conflict between these two provisions; one statute addresses property crimes, the other addresses disorderly conduct. The fact that both statutes can conceivably cover the same person and the same property does not call for in pari materia construction of the provisions when each serves a markedly different objective. Cheney, 755 S.W.2d at 129. The State could have elected to prosecute appellant under either of these provisions if it could prove the elements comprising each offense. Neither the State's election to prosecute under section 28.03 nor the trial court's subsequent exercise of jurisdiction was error. We overrule appellant's first point.

WARRANTLESS SEARCH

In his second point of error, appellant challenges the introduction of evidence taken pursuant to a warrantless search of his truck. In his brief, appellant raises both state and federal constitutional grounds in the same point of error. The court of criminal appeals has addressed the possible dire consequences of failing to distinguish state and federal constitutional issues:

Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantial analysis or argument on each separate ground. If sufficient distinctions between state and federal constitutional ground is not provided by counsel, this court may overrule the grounds as multifarious.

McCambridge v. State, 712 S.W.2d 499, 502 n. 9 (Tex.Crim.App.1986). Nonetheless Appellant claims this search violated both the federal and state constitutions. See U.S. Const. amend. IV; Tex.Const. art. I, § 9. After reviewing the details and the object of this warrantless search, we disagree.

we will exercise our discretion to review each issue.

On June 29, 1989, officers of the Austin Police Department arrested the appellant in a parking lot and impounded his truck. The police did not conduct an inventory search, but instead procured a search warrant and removed evidentiary items from the vehicle. More than a month later, the police removed dirt particles from the open bed of the pickup truck, which still remained in police custody. Eleven soil samples taken from the truck contained hexazinone, the chemical found to have poisoned the Treaty Oak in June 1989.

1) Federal Prohibition Against Unreasonable Search and Seizure

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court noted that the primary object of the Fourth Amendment is the protection of privacy, not the protection of property. Id. at 302-06, 87 S.Ct. at 1647-50. Later, in Illinois v. Andreas, 463 U.S. 765, 767, 103 S.Ct. 3319, 3321, 77 L.Ed.2d 1003 (1983), the Court observed that "[i]f the inspection by the police does not intrude upon a legitimate expectation of privacy, there is no 'search' subject to the Warrant Clause." The Court has also held that a "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. United States v. Jacobsen, 466 U.S....