Desir v. State
| Decision Date | 15 February 2018 |
| Docket Number | NO. 14–16–00976–CR,14–16–00976–CR |
| Citation | 543 S.W.3d 865 |
| Parties | Mike DESIR, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Cory Stott, Houston, TX, for State of Texas.
J.M. (Mike) Monks, for Appellant.
Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J., concurring).
In one issue, appellant Mike Desir challenges the trial court's denial of his motion seeking to quash the indictment against him for tampering with governmental records under section 37.10 of the Penal Code. He asserts that his conviction is barred under the doctrine of in pari materia because the offense for which he was indicted is more specifically described in another statute with a lesser range of punishment, section 548.6035 of the Transportation Code, involving "Fraudulent Emissions Inspections of Motor Vehicle[s]." We conclude that the trial court did not have sufficient information to determine based on the face of the indictment whether sections 37.10 and 548.6035 were in pari materia . Accordingly, we affirm the judgment of the trial court.
The doctrine of in pari materia is a settled rule of statutory construction concerning statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, even when such statutes contain no reference to one another and even though they were passed at different times or during different sessions of the legislature. Azeez v. State , 248 S.W.3d 182, 191 (Tex. Crim. App. 2008). All acts and parts of acts in pari materia must be read and construed together, and any conflicts must be harmonized when possible. Id. at 192. However, when general and more detailed statutes are in conflict, the latter will prevail unless it appears that the legislature intended for the more general act to prevail. Id. (citing Tex. Gov't Code § 311.026 ).1
Under section 37.10, in relevant part:
Tex. Penal Code § 37.10(a)(1)–(2), (5). The offense is a second degree felony when the actor intended to defraud or harm another and the governmental record was, among other things, a "license, certificate, permit, ... or similar document issued by government, by another state, or by the United States ...." Id. § 37.10(c)(2)(A).2
Under section 548.6035, in relevant part:
Tex. Transp. Code § 548.6035(a). On a finding that the person committed an offense defined above and "acted with the intent to defraud or harm another person," the offense is a state jail felony. Id. § 548.6035(d).
We review the trial court's ruling on a motion to quash an indictment de novo. State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Appellant moved to dismiss the indictment in a motion entitled "Plea in Bar/Motion to Dismiss," which we construe as a motion to quash the indictment. See Neal v. State , 117 S.W.3d 301, 305 (Tex. App.–Texarkana 2003) (), rev'd on other grounds , 150 S.W.3d 169 (Tex. Crim. App. 2004). The trial court denied the motion, and appellant pleaded guilty.
The State argues that the trial court did not err in denying the motion to quash the indictment because the indictment does not reveal on its face the nature of the governmental record at issue. For the following reasons, we agree.
The Austin Court of Appeals has held that when a defendant challenges an indictment on the basis of in pari materia before an evidentiary record has been developed, a trial court may quash the indictment only if it raises the in pari materia issue on its face.
State v. Allen , 346 S.W.3d 713, 716 (Tex. App.–Austin 2011, pet. ref'd) ; see also Ex parte Smith , 185 S.W.3d 887, 889, 893 (Tex. Crim. App. 2006) (). Likewise, the Court of Criminal Appeals has held that when the charging instrument was unobjectionable on its face, it was only after the State's evidence disclosed the statutory provisions purportedly at issue that the basis for an in pari materia challenge became manifest. See Azeez, 248 S.W.3d at 194.
The indictment reads: "[Appellant] ... did ... unlawfully, knowingly make a false entry in a governmental record, namely, TEXAS INFORMATION MANAGEMENT SYSTEM RECORD, attached hereto as Exhibit A, and the actions of [appellant] were done with the intent to defraud and harm another." Exhibit A, a database spreadsheet, is attached to the indictment and is entitled, "Texas Information Management System." The print on Exhibit A is too small to read without enlarging it, but the exhibit includes data indicating that appellant was the inspector for a vehicle inspection and that the vehicle passed the inspection. Although the indictment reveals that appellant was charged with making a false entry in a governmental record involving vehicle inspections, the indictment is not limited on its face to a governmental record involving vehicle emissions inspections; however, section 548.6035 applies only to vehicle emissions inspections. Tex. Transp. Code § 548.6035. It is impossible to tell from the indictment, including Exhibit A, whether the State intended to present evidence at trial that appellant falsified a vehicle emissions inspection report or another type of vehicle inspection report.
Conclusion . The State's indictment does not show on its face that appellant was being charged with falsifying a vehicle emissions inspection report. Appellant pleaded guilty before the State presented evidence regarding what type of vehicle inspection was at issue in this case. We conclude that the trial court did not have sufficient information to determine that sections 37.10 and 548.6035 are in pari materia under these circumstances. See Allen , 346 S.W.3d at 721. Accordingly, we cannot conclude from our review of the indictment that appellant was prosecuted under the wrong statutory provision for falsifying a vehicle emissions inspection report.3 We overrule appellant's issue on appeal.
We affirm the judgment of the trial court.
CONCURRING OPINION
Presuming for the sake of argument that the indictment sufficiently alleges violations of Penal Code section 37.10 and Transportation Code section 548.6035, the trial court did not err in denying appellant Mike Desir's motion to quash the indictment because the statutes are not in pari materia .
When two statutes address the same general subject, the law considers them as being in pari materia .1 The doctrine of in pari materia commands that in construing a statute, and determining legislative intent, courts take, read, and construe together "all acts and parts of acts in pari materia ," each enactment in reference to the other, as though they were parts of one and the same law.2 Whenever possible, the court must harmonize any conflict between two statutes to give effect to each.3 If the statutes irreconcilably conflict, then the more detailed enactment will prevail.4 In the context of penal provisions, statutes are in pari materia "where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision."5 When a general statute and a specific statute both proscribe the conduct, the defendant should be charged under the more specific statute.6 But, the rule of in pari materia does not apply to enactments that cover different situations and that the legislature did not intend to be considered together.7
Courts consider four non-exclusive factors in determining whether the statutes are in pari materia :
Under Penal Code section 37.10, entitled "Tampering with Governmental Record," in relevant part:
Under Transportation Code section 548.6035, entitled "Fraudulent Emissions Inspection of Motor Vehicle," in relevant part:
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