Margraves v. State

• Decision Date: 06 December 2000
• Citation: 34 S.W.3d 912
• Parties: (Tex.Crim.App. 2000) ROSS D. MARGRAVES, Appellant v. THE STATE OF TEXAS NO. 1354-99
• Court: Texas Court of Criminal Appeals

Page 912

34 S.W.3d 912 (Tex.Crim.App. 2000)

ROSS D. MARGRAVES, Appellant v.THE STATE OF TEXAS

NO. 1354-99

Court of Criminal Appeals of Texas En Banc

December 6, 2000.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS BRAZOS COUNTY

Before the court en banc.

WOMACK, J., delivered the opinion of the Court in which McCORMICK, P.J., MEYERS, MANSFIELD, KELLER, HOLLAND, and KEASLER, JJ., joined.

The appellant was the Chairman of the Texas A&M Board of Regents.He was charged by indictment with Official Misconduct for using a Texas A&M University System airplane to attend his son's graduation ceremony at Louisiana State University(L.S.U.).After a five-day trial, a jury convicted the appellant in October 1996.The trial court accepted the agreement of the parties and set punishment at four years' confinement probated for a period of four years, $3,000 fine, and $1,435 in restitution.The appellant moved for a new trial, which was denied, and he appealed to the Fourteenth Court of Appeals.

The Court of Appeals reversed the appellant's conviction.Margraves v. State, 996 S.W.2d 290, 305(Tex. App. Houston [14th Dist.]1999).The court found that the evidence was legally insufficient to sustain a conviction.Margraves, 996 S.W.2d at 302.It also held that the official misconduct statute was unconstitutionally void for vagueness.Id. at 304.The State petitioned for discretionary review on both issues, which we granted.We are asked to decide whether the Court of Appeals erred in its legal-sufficiency review by adopting the appellant's version of the facts, disagreeing with the notion that the jury was entitled to reject the appellant's exculpatory evidence, and reweighing the appellant's evidence to find that it "conclusively established" his defensive theory.We are also asked whether the Court of Appeals was correct in holding that the statute was unconstitutionally void for vagueness as applied to the appellant.We reverse and remand.

I.

On August 4, 1993, when the appellant committed the offense, former Section 39.01 of the Penal Code was in effect.The relevant portion read:

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly . . .

(2) misapplies anything of value belonging to the government that has come into his custody or possession by virtue of his office or employment.¹

A renumbered, retitled, and amended statute was to become effective on September 1, 1994,² but of course it was not applicable to the appellant's conduct.

The Court of Appeals' opinion mistakenly quotes and then cites to the new statute.The Court of Appeals' opinion is not a review of the new statute, although at first glance its citations might indicate otherwise.A close reading reveals that it is an interpretation of the old statute, however, and we consider this error to be simply a citation mistake.

The opinion never mentions any feature of the new statute, nor does it attempt to interpret it.It does not address any of the new language in the amended statute.³If one simply replaces its citations to the new statute with citations to the old , the opinion would read the same and its analysis would be no different.

The court recognized that "the charge defined the term misapply as 'to apply wrongly or to misuse or spend without proper authority,'"id. at 303, which is the definition that we provided under the old statute in Talamantez v. State, 829 S.W.2d 174, 181(Tex. Cr. App.1992).The Court of Appeals also identified the correct term, "misapply," in several other instances throughout the opinion.⁴At other points, the opinion uses "misuse" instead of "misapply," but this alternation is consistent with our interpretation of the old statute under Talamantez.

We view these mistakes by the Court of Appeals to be simple citation errors and not an assumption that the appellant was convicted under the new statute.We think that the most efficient judicial course is to review the opinion as if the Court of Appeals had cited the proper statute, and that our decision will be the same as if it had.

II.

Before we can evaluate the Court of Appeals' holdings that the evidence is legally insufficient or the statute is unconstitutionally vague, we must state the proper construction of former section 39.01(a)(2).In this case the terms of the statute required the State to prove, among other things, that the appellant harbored the intent to obtain a benefit for himself and that he misapplied government property to obtain that benefit.The intent element may be satisfied before or duringthe misapplication of state property.SeeTalamantez, 829 S.W.2d at 181("one engages in official misconduct whenever one forms the requisite specific intent at the outset or in the course of or after misusing any thing of value belonging to the government").⁵

The Court of Appeals construed the misapplication element of section 39.01(a)(2) to require that the State prove beyond a reasonable doubt that either (1)the appellant conducted no state business on his trip or (2)the appellant used state property for both official and personal business, which the court termed a "mixed use" scenario, and the state incurred additional costs due to the personal portion of the trip.Margraves, 996 S.W.2d at 299.The court adopted the appellant's argument that, because the State had not proved beyond a reasonable doubt that the appellant had conducted no state business while on his trip, or that the state had incurred additional costs due to his personal business, the evidence was insufficient to sustain his conviction.Id. at 302.

The State argues that this construction of the misapplication element of section 39.01(a)(2) would permit a state official to take unauthorized personal trips without fear of prosecution if that official can dream up any state business that he might have pursued on his trip.The appellant responds that the Court of Appeals' alternate construction of the statute constrains the possibility of abuse, in that from such acts the state would necessarily incur additional expenses that would permit prosecution.

The Court of Appeals' first construction of section 39.01(a)(2)-that the statute requires the State to prove that the appellant conducted no state business-conflicts with precedents interpreting the meaning of the term "misapply."In Talamantez, this Court gave "misapply" in this statute its common meaning: "1. to apply wrongly . . . 2. to misuse or spend (as public money without proper authority)."Talamantez, 829 S.W.2d at 181.A public servant can misapply government property even when it is used for official purposes.

In State ex. rel. Hightower v. Smith, 671 S.W.2d 32(Tex.1984), the state property at issue in Hightower was the use of county vehicles and fuel.The defendant in that case, a county sheriff, had accepted a rent-free apartment in which he did not live.In return for the apartment, the sheriff ordered extra security checks-in-passing for the apartment complex.The Supreme Court considered whether prosecution is permitted when the unauthorized use arguably also benefits the public, and it held that public benefit from the misapplication of state property does not shield a defendant from criminal liability."Willfully using [state property] for private benefit constitutes misapplication or misappropriation, even though the same activity constitutes a legitimate public function."Hightower, 671 S.W.2d at 35.

The Court of Appeals' alternate construction of the statute was that in a "mixed use" scenario, in which a public servant used government property for both government and personal purposes, the prosecutor would be required to prove additional expense to the state.We agree that in this case if there had been no expense to the state from the appellant's trip, there would have been no misapplication.Further consideration of this construction is not necessary however, because it does not apply to the facts of this case.

The Court of Appeals found that its alternate construction of the statute had not been met because this case presented a "mixed use" in which there was no expense to the state from the appellant's "meeting with his son for ten minutes after graduation."Margraves, 996 S.W.2d at 301.The appellant was not convicted of misapplying state property for meeting with his son, however.He was convicted of misapplying state property in taking the state airplane to his son's graduation ceremony.Even when the alternate construction is used, the correct inquiry is whether there was additional expense to the state from the appellant's and his wife's using the state airplane instead of paying for tickets on a private carrier.

The validity of the alternate construction is made moot because the evidence does not justify the Court of Appeals' assumption that the appellant's use of the airplane was a "mixed use."Viewed in the proper light, the evidence was that the appellant's use had no genuine government purpose, as we explain below.It is for the jury to decide whether the intended purpose of the trip rendered it a misuse or misapplication of state property.The Court of Appeals held that "a public official cannot be prosecuted for a mixed use of state property where the evidence conclusively establishes that the use of state property benefits both the individual and the state."Margraves, 996 S.W.2d at 302(italics omitted).To reach this conclusion, however, the Court of Appeals had to assume that any act of official business, even if it were a trivial act or a sham, would constitute mixed use.Transposing such a blanket rule into the official misconduct statute is not dictated by the terms of the statute and is shown by this case to be unworkable.

III.

Having explained the proper construction of the statute, we consider the Court of Appeals' legal sufficiency review.The...