McGowan v. State

• Decision Date: 12 December 1996
• Docket Number: Nos. 14-93-01098-C,14-93-01099-CR,s. 14-93-01098-C
• Citation: 938 S.W.2d 732
• Parties: Matthew McGOWAN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 732

938 S.W.2d 732

Matthew McGOWAN, Appellant, v. The STATE of Texas, Appellee.

Nos. 14-93-01098-CR, 14-93-01099-CR.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 12, 1996.

Opinion Overruling Rehearing

Feb. 13, 1997.

Gerald K. Payte, Robert A. Scardino, Jr., George McCall Secrest, Jr., Houston, for appellant.

Gerald K. Payte, Robert A. Scardino, Jr., George McCall Secrest, Jr., Cathleen C. Herasimchuk, Houston, for appellant on rehearing.

Dan McCrory, Houston, for appellee.

Before YATES, FOWLER and O'NEILL, JJ.

MAJORITY OPINION

YATES, Justice.

A jury convicted appellant, Matthew McGowan, of two counts of commercial bribery, TEX.PENAL CODE ANN. § 32.43(b) (Vernon 1989), ¹ and one count of theft of trade secrets. Id. § 31.05. The trial court assessed punishment for each offense at five years confinement. In five points of error, appellant challenges the sufficiency of the evidence and alleges the trial court erred in (1) denying his motion to dismiss the charges against him for want of jurisdiction; (2) denying a motion to dismiss because the theft of trade secrets statute is unconstitutionally vague and overbroad as applied; (3) failing to instruct the jury that a trade secret must be a secret; and (4) commenting on the weight of the evidence in the text of the jury charge. We affirm in part and reverse in part.

BACKGROUND

During the course of a sting operation conducted by a firm specializing in the investigation of white collar crimes, appellant, Matthew McGowan, a Dresser-Rand salesman in Seattle, Washington, acquired drawings of highly technical machinery parts from another Dresser-Rand office and transmitted these drawings to Kenneth Weightman, a secondary parts manufacturer who was not authorized to manufacture and sell the parts. In return, Weightman wired money to McGowan. Weightman agreed to manufacture these parts for a dummy corporation created as part of the sting operation.

JURISDICTION

In his first point of error, appellant maintains Texas lacked jurisdiction because the crimes he allegedly committed do not fall within the limits of Texas's territorial jurisdiction as set forth in Section 1.04 of the Texas Penal Code. Section 1.04 states that Texas "has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if ... either the conduct or a result that is an element of the conduct occurs inside this state." Id. § 1.04. Appellant contends the State of Texas does not have jurisdiction to prosecute him for either commercial bribery or theft of trade secrets because neither "the conduct or a result that is an element" of either offense occurred in Texas.

An employee commits the offense of commercial bribery if, without the consent of his employer, he intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another person on agreement or understanding that the benefit will influence his conduct in relation to the affairs of his employer. Id. § 32.43. Appellant contends the offense of commercial bribery is complete once the employee accepts the benefit or agrees to have his conduct influenced by a benefit, whether or not the employee subsequently acts in furtherance of the agreement. Therefore, appellant argues, the offense of commercial bribery was complete when he allegedly took the bribe, regardless of whether he ever transmitted the drawings to Weightman. He further maintains that because he lived and worked in the State of Washington when he allegedly took the bribe, neither an element nor a result that is an element of the offense of commercial bribery took place in Texas. Therefore, he claims his actions and their results did not subject him to the territorial jurisdiction of this State. The State, on the other hand, maintains that Texas had jurisdiction over the offense because appellant accepted money that was generated from a location within the State of Texas.

Contrary to the State's argument, the origin of the benefit is not an element of commercial bribery. Section 1.04 combines subjective and objective territorial principals. Boetscher v. State, 782 S.W.2d 954 (Tex.App.--Amarillo 1990), rev'd on other grounds sub nom., Ex Parte Boetscher, 812 S.W.2d 600 (Tex.Crim.App.1991). Jurisdiction is conferred over offenses commenced within the state but completed outside the state (subjective) and for offenses commenced outside the state but consummated within (objective). Id. The primary policy considerations underlying section 1.04 are that Texas should have a substantial interest in or connection with the criminal event it seeks to prosecute and that law enforcement should be facilitated by plugging gaps in existing law when a course of conduct goes beyond the boundaries of a single state. TEX.PENAL CODE ANN. § 1.04 Practice Commentary (Vernon 1974).

In determining whether Texas had jurisdiction in an interference with child custody case, the Court of Criminal Appeals in Roberts v. State, 619 S.W.2d 161, 164 (Tex.Crim.App.1981), considered where an act occurs and where the result of an act occurs.

If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place ... (emphasis in original).

Roberts, 619 S.W.2d at 164 (quoting 22 C.J.S. Criminal Law section 134, current version at section 162).

Here, the State concedes, and we agree, that commercial bribery is a conduct oriented offense, as opposed to a result oriented offense. See, e.g., Hubbard v. State, 668 S.W.2d 419 (Tex.App.--Dallas 1984), rev'd on other grounds, 739 S.W.2d 341 (Tex.Crim.App.1987) (noting that bribery offense focuses on the mental state of the actor); Cerda v. State, 750 S.W.2d 925 (Tex.App.--Corpus Christi 1988, pet. ref'd) (holding that offense of bribery is complete once there is an agreement to violate a legal duty). In other words, the crime is defined to cover the conscious act of the wrongdoer, rather than the consequences of the act. For Texas to have jurisdiction, McGowan must have solicited, accepted or agreed to accept a benefit in Texas. Although money was wired to McGowan from Texas and, presumably in exchange, documents were sent to Texas, these acts are not elements of the offense of commercial bribery. There is no circumstantial or direct evidence indicating that a benefit was solicited, accepted or agreed to in Texas. ² Thus, jurisdiction may exist in Washington, but not in Texas.

Appellant also contends that Texas was without jurisdiction for the offense of theft of a trade secret. Like commercial bribery, appellant maintains the offense of theft of a trade secret is not a result-oriented crime and is complete when the offending party attempts to communicate the secret whether or not the secret is successfully communicated. In this case, he maintains, no element of the offense occurred in Texas because the offense was complete in Washington, the state from which he transmitted the drawings to Weightman. We disagree.

A person commits the offense of theft of trade secrets "if, without the owner's effective consent, he knowingly: (1) steals a trade secret; (2) makes a copy of an article representing a trade secret; or (3) communicates or transmits a trade secret." TEX.PENAL CODE ANN. § 31.05(b) (Vernon 1989). Here, appellant transmitted alleged trade secrets to Weightman in Texas by a facsimile machine. Thus, the issue is whether the transmission occurred in Texas, in Washington, or in both.

The verb "transmit" means "[t]o send or transfer from one person or place to another, or to communicate." BLACK'S LAW DICTIONARY 1344 (5th ed. 1979). A logical extension of this definition is that a transmission is complete when the party to whom the transmission is directed actually receives the transmission. As such, the transmittal occurred in both Texas and Washington, but was not complete until the drawings actually reached Weightman in Houston. Because the offense was complete only after the drawings were transmitted into Texas, an element of the offense occurred within Texas giving Texas jurisdiction under Section 1.04 of the penal code.

In sum, because appellant's conduct in relation to the offense of theft of trade secrets fell within the territorial requirements of Section 1.04, the trial court did not err in denying appellant's motion to dismiss the theft of trade secrets case for want of jurisdiction. However, because we have found that none of appellant's conduct concerning the offense of commercial bribery occurred in Texas, the trial court erred in denying appellant's motion to dismiss the commercial bribery case. Accordingly, appellant's first point of error is sustained in part and overruled in part.

CONSTITUTIONALITY OF TRADE SECRETS STATUTE

In his second point of error, appellant maintains the trial court erred in denying a motion to dismiss the indictment because Section 31.05(b) is vague and overbroad as applied, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and the Due Course of Law provision of the Texas Constitution. Although Weightman filed a motion raising the constitutionality of the statute, appellant did not. Weightman's motion does not preserve error for appellant. Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.--Dallas 1992, pet. ref'd). Although appellant contends he preserved error by requesting an instructed verdict and objecting to the jury charge, appellant's objection in no way raised the constitutionality of the statute as applied to him. Moreover, he cites no authority indicating how such measures preserve a claimed right of dismissal based on a constitutional challenge. Because no specific,...