Ex parte Mattox

• Decision Date: 05 December 1984
• Docket Number: No. 3-84-201-CR,3-84-201-CR
• Parties: Ex parte James MATTOX, Appellant.
• Court: Texas Court of Appeals

Page 93

683 S.W.2d 93

Ex parte James MATTOX, Appellant.

No. 3-84-201-CR.

Court of Appeals of Texas,

Austin.

Dec. 5, 1984.

Roy Q. Minton, Minton, Burton, Foster & Collins, Austin, for appellant.

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

Before SHANNON, EARL W. SMITH and BRADY, JJ.

EARL W. SMITH, Justice.

The appellant, James Mattox, applied for a writ of habeas corpus in the trial court, contending that he is unlawfully restrained pursuant to three indictments pending against him. ¹ The indictments allege the offense of commercial bribery, Tex.Pen.Code Ann. § 32.43(c) (1974), ² and are based on the same alleged incident. Mattox has executed a personal bond in each cause, and it is undisputed that he is restrained in his liberty by reason of the indictments and bonds. Tex.Code Cr.P.Ann. art. 11.22 (1977). Following a hearing upon the writ, the trial court entered an order denying relief and Mattox gave notice of appeal.

In his first two grounds of error, Mattox contends the indictments are fundamentally defective because they fail to allege the forbidden conduct and required culpability elements of commercial bribery. We do not reach the merits of these contentions, because it is well established that this is a matter that cannot be raised in a pretrial habeas corpus proceeding.

The general rule is this: when there is a valid penal statute under which a prosecution may be brought, habeas corpus is not available to test the sufficiency of the charging instrument prior to trial. Ex parte Mangrum, 564 S.W.2d 751 (Tex.Cr.App.1978); Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977); Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977); Ex parte Greene, 406 S.W.2d 465 (Tex.Cr.App.1966); Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870 (1934); Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Webb, 113 S.W. 545 (Tex.Cr.App.1908); Ex parte Beverly, 34 Tex.Cr.R. 644, 31 S.W. 645 (1895). Mattox acknowledges the existence of this long line of precedent, but argues that these cases no longer correctly state the law.

Mattox relies on the oft-stated principle that the failure of the charging instrument to allege all elements of the offense is a fundamental defect depriving the trial court of jurisdiction, and may be asserted at any time. But the opinions in which this language is found and on which Mattox relies deal with post-trial attacks, either direct or collateral, on judgments of conviction. See American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) [fundamentally defective indictment may be challenged for first time on appeal]; Duplechin v. State, 652 S.W.2d 957 (Tex.Cr.App.1983), and Ex parte Millard, 587 S.W.2d 703 (Tex.Cr.App.1979) [collateral attack on judgment of conviction used for enhancement of punishment]; Salazar v. State, 589 S.W.2d 412 (Tex.Cr.App.1979), and Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975) [collateral attack on judgment of conviction in probation revocation proceeding]; Ex parte Munoz, 657 S.W.2d 105 (Tex.Cr.App.1983), and Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1977) It is true, as Mattox points out, that the Court of Criminal Appeals has occasionally entertained pretrial habeas corpus proceedings begun for the purpose of setting aside an indictment or information. But in each of these cases, the issue was not the sufficiency of the allegations in the charging instrument but the legal authority of the State to prosecute the accused. See Ex parte Dickerson, supra, and Ex parte Ward, supra [charging instrument showed on its face that prosecution was barred by limitations]; Ex parte Becker, 459 S.W.2d 442 (Tex.Cr.App.1970) [indictment returned by irregularly empaneled grand jury]; Ex parte Mangrum, supra [indictment based on repealed statute]; Ex parte Menefee, supra [juvenile indicted without examining trial]. Moreover, in Mangrum, Menefee, Ward, and Dickerson, all decided after the Court of Criminal Appeals opened the door to post-trial collateral attacks on charging instruments, the court was careful to point out that it was acting pursuant to a narrow exception to the general rule prohibiting such attacks prior to trial. Mattox is asking this Court to read into these opinions a holding that is contrary to their express language.

[collateral attack on judgment of conviction pursuant to Tex.Code Cr.P.Ann. art. 11.07 (1977 and Supp.1984) ]. Mattox correctly observes that this willingness on the part of the Court of Criminal Appeals to permit belated attacks on the sufficiency of the charging instrument represents a recent change in the law. Compare Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943) and Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973), with Standley v. State, supra, and Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975). However, that court has not manifested a similar willingness to permit pretrial collateral attacks on charging instruments.

Before trial, the accused may challenge the sufficiency of the State's pleading in a motion to quash. Should the motion be overruled and the accused subsequently convicted, the issue may be taken up on appeal. Mattox does not assert any extraordinary interest that would justify the delay and judicial wheelspinning that would result were defendants authorized to institute pretrial collateral proceedings, complete with interlocutory appeals, to test the sufficiency of the allegations in a charging instrument. Cf. Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982) [pretrial review of defendant's jeopardy claim]. Rulings on other pretrial motions, even those with a constitutional basis such as motions to suppress unlawfully seized evidence, must be reviewed on appeal and may not be pursued in pretrial collateral proceedings.

In summary, the Court of Criminal Appeals has clearly and consistently held that an accused cannot challenge the sufficiency of the charging instrument's allegations in a pretrial habeas corpus proceeding. None of the cases cited by Mattox are authority to the contrary. We therefore overrule the first and second grounds of error.

In his third and fourth grounds of error, Mattox contends that § 32.43(c) is unconstitutionally vague on its face and as applied to the facts alleged in the indictments. A penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first element of due process of law. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A statute alleged to violate the Constitution may be challenged through application for writ of habeas corpus. Crisp v. State, 643 S.W.2d 487 (Tex.App.1982), aff'd, Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983).

Section 32.43, as it read at the time of the alleged offense, provided:

(a) For purposes of this section:

(1) "Beneficiary" means a person for whom a fiduciary is acting.

(2) "Fiduciary" means:

(A) an agent or employee;

(B) a trustee, guardian, custodian, administrator, executor, conservator, receiver, or similar fiduciary;

(C) a lawyer, physician, accountant, appraiser, or other professional advisor; or

(D) an officer, director, partner, manager, or other participant in the direction of the affairs of a corporation or association.

(b) A person who is a fiduciary commits an offense if he intentionally or knowingly solicits, accepts, or agrees to accept any benefit as consideration for:

(1) violating a duty to a beneficiary; or

(2) otherwise causing harm to a beneficiary by act or omission.

(c) A person commits an offense if he offers, confers, or agrees to confer any benefit the acceptance of which is an offense under Subsection (b) of this section.

(d) An offense under this section is a felony of the third degree.

"Benefit" is defined in Tex.Pen.Code Ann. § 1.07(a)(6) (1974) as follows:

[A]nything reasonably regarded an economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.

Mattox argues that § 32.43(c) does not give adequate notice of the conduct it prohibits. He asserts that because the economic gain or advantage need not accrue to the person to whom the offer is made, a person could be prosecuted for offering a benefit to a fiduciary of whom he had no knowledge. Mattox finds a similar problem with the definitions of "fiduciary" and "beneficiary" contained in § 32.43(a), arguing that it is impossible for an individual to know if the person to whom he offers a benefit is a fiduciary. These arguments fail when it is recalled that the State must prove that the offeror acted with the requisite culpable mental state.

A requirement of scienter may mitigate a law's vagueness, especially with respect to the adequacy of notice to an individual that his conduct is proscribed. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). Section 32.43(c) is not a strict liability statute. It criminalizes only those offers the acceptance of which would violate subsection (b). Subsection (b), in turn, criminalizes the acceptance of a benefit only if it is in consideration for a breach of a fiduciary duty. Obviously, one can offer a benefit in consideration for a breach of a fiduciary duty only if one knows the offeree is a fiduciary, and that he would violate a duty owed to his beneficiary or otherwise cause harm to his beneficiary by accepting the offered benefit. Thus, the State must prove such knowledge in a prosecution pursuant to § 32.43(c). See Pfleging v. State, 572 S.W.2d 517 (Tex.Cr.App.1978). See also Ledesma v. State, 677 S.W.2d 529 (Tex.Cr.App., 1984); Goss v....