Sanchez v. State

• Decision Date: 12 October 2005
• Docket Number: No. 04-96-00140-CR.,04-96-00140-CR.
• Parties: Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

182 S.W.3d 34

Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00140-CR.

Court of Appeals of Texas, San Antonio.

October 12, 2005.

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Mark Stevens, Stephanie L. Stevens, San Antonio, for appellant.

Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for appellee.

Sitting: CATHERINE STONE, Justice, PHYLIS SPEEDLIN, Justice, JOHN F. ONION, JR., Justice.

OPINION

Opinion on Second Remand by JOHN F. ONION, JR., Justice.¹

"Only when the law is the soul of fairness can it truly be the soul of reason." ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR (1970).

INTRODUCTION

The case at hand has become the Sanchez Saga. This opinion is Sanchez V. The cause has been remanded a second time by the Texas Court of Criminal Appeals — this time for reconsideration of the issue of harm arising from the erroneous overruling of appellant's pretrial motion to quash the indictment based on the lack of notice of the nature and cause of the accusation against him as constitutionally and statutorily required. The Court of Criminal Appeals has apparently limited our reconsideration to a special type of statutory harmless error analysis for charging instruments under article 21.19 of the Code of Criminal Procedure² as interpreted in Adams v. State, 707 S.W.2d 900 (Tex.Crim.App.1986). See Sanchez v. State, 120 S.W.3d 359, 368 (Tex.Crim.App.2003) (Sanchez IV).

The defect complained of in the instant one-count and one-paragraph indictment consisted of the failure to specify and give notice of the complainant's alleged "rights, privileges, powers, and immunities" and the terms and conditions thereof that appellant had made subject to the complainant's submission to ten different offenses of sexual harassment. Adams held that under article 21.19 a conviction could be affirmed on appeal despite a showing that the trial court erred in overruling a challenge to the charging instrument based on a defect of form. Affirmance was mandated if the defect did not prejudice the substantial rights of the accused. 707 S.W.2d at 903. Under this approach, the inquiry ends if sufficient notice has been given in the indictment or information. Id. If not, it must be shown by the accused from the "context of the case" that the defect had an impact upon the accused's ability to prepare and present a defense, and how great an impact. Id. The burden is placed on the accused, even though he has preserved error for review by his motion to quash, the error remains unremedied, and the accused offers no defense, relying on the State's failure to prove its case beyond a reasonable doubt. See id. at 904.

We note that the Adams analysis does not focus on the trial court's error but on the consequences of the trial. Adams places a different burden on the accused than that imposed by the Court of Criminal Appeals under other statutory harm analyses and the Texas Rules of Appellate Procedure. It arguably transforms a harm analysis to an approach that relieves the trial court of the obligation to quash a charging instrument, regardless of the defect and the merits of the challenge. See 41 GEORGE E. DIX & ROBERT O. DAWSON TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 21.147 n. 4 (2d ed. Supp.2004) (discussing Kellar v. State, 108 S.W.3d 311 (Tex.Crim.App.2003), a progeny of Adams). It appears that in the process, constitutional and statutory frameworks to guarantee an accused notice in the charging instrument itself of precisely what conduct he is accused of have been forsaken.

While the Court of Criminal Appeals has cautioned that the State may not conduct "trial by ambush," State v. Moff, 154 S.W.3d 599, 603 (Tex.Crim.App.2004), cases such as Kellar, supra, have not been modified. The unraveling of fairness inherent in the traditional Texas procedure of observing constitutional and statutory pleading requirements began in American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Crim.App.1974). That decision termed what always was considered the substance of a charging instrument as being mere form. This drastic change was done in a misdemeanor case totally without constitutional considerations. See Janecka v. State, 739 S.W.2d 813, 840-41 (Tex.Crim.App.1987) (Duncan, J., dissenting)³ (referring to defendant's constitutional right to have the state prove guilt beyond a reasonable doubt without actively asserting a defense).

Paying lip service to the constitutional notice requirements of Article I, Section 10 of the Texas Constitution, the Adams court seized upon the American Plant Food Corp. decision and held that the lack of adequate notice in the charging information was a defect of form subject to harmless error analysis under article 21.19 of the Code of Criminal Procedure. Adams, 707 S.W.2d at 903. Thus, Adams has cast an additional burden upon a defendant to show from the "context of the case" how the defendant was harmed in preparing and presenting his defense despite the unremedied error in the charging instrument, leaving the State as the beneficiary of the trial court's error in overruling the challenge to the charging instrument. Adams and its progeny have formed a harmless error roadblock to the exercise of an accused's constitutional and statutory rights.

We have concluded, however, that appellant has met the Adams test. This conclusion is strengthened when it is acknowledged that no party should have the burden to show harm from an error. See Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App.2000). Moreover, we have sustained two unassigned errors also entitling appellant to a new trial.

THE CASE AT HAND

The instant appeal was taken from a 1996 conviction for official oppression involving sexual harassment. See TEX. PEN.CODE ANN. § 39.03(a)(3) (Vernon 2003).⁴

The district court jury found appellant Arthur Garcia Sanchez guilty of the Class A misdemeanor⁵ and assessed his punishment at one year in the county jail and a fine of $3,000. The jury, however, recommended community supervision (probation). The trial court suspended the imposition of the sentence and placed appellant on community supervision for two years subject to certain conditions.

On original submission, this Court on May 20, 1998, sustained two of appellant's contentions, finding that the sexual harassment provision in section 39.03(c) was (1) unconstitutionally vague on its face and as applied in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, and (2) unconstitutionally overbroad in violation of the First Amendment to the United States Constitution. See Sanchez v. State, 974 S.W.2d 307, 319, 321 (Tex.App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on petition for discretionary review found the sexual harassment statutory provision constitutional, reversed our judgment and remanded the cause for proceedings consistent with its opinion. See Sanchez v. State, 995 S.W.2d 677, 680, 689-90 (Tex.Crim.App.), cert. denied, 528 U.S. 1021, 120 S.Ct. 531, 145 L.Ed.2d 411 (1999) (Sanchez II).

In construing section 39.03(a)(3), (c) and finding it constitutional, the Court of Criminal Appeals determined that it could not give plain meaning to subsection (c) because its definition of "sexual harassment" was ambiguous. Sanchez II, 995 S.W.2d at 683-84. The court then resorted to sources outside the language of the statutory definition. Id. at 684-85.

To find the statute constitutional, the court, in its opinion, developed for the first time some of the essential elements of the offense, which, needless to say, were not applied in appellant's trial. Id. at 687. Agreeing that the grammatical construction was awkward, the court concluded that the term "unwelcome" as used in the statute modified not only "sexual advances" but also modified all the other forms of sexual harassment under subsection (c) of section 39.03. Id. at 684-85.

The court also found that the perpetrator's culpable mental state of intent relates to the entire statutory definition of sexual harassment, asserting:

The statute requires that the perpetrator not only intentionally subject a victim to the specified unwelcome sexual conduct (sexual advances, request for sexual favors, etc.), the perpetrator must also intend that submission to the conduct is made a term or condition of a person's exercise of any right, privilege, power, or immunity. In other words, the culpable mental state applies to both (1) the sexual conduct, and (2) the quid pro quo.

Id. at 686 (emphasis in original). In addition to expanding the culpable mental state of "intent" in its interpretation of the statute, the court required the element that the perpetrator must know (or be aware) that his conduct of a sexual nature is not welcomed by the recipient. Id. at 687-88.

Because it is important to our later discussion, we observe that the statutory phrase "submission to which [conduct of a sexual nature] is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly" gave the court some difficulty in interpretation. See id. at 686-87. The indictment had pluralized the phrase and used "her rights, privileges, powers, and immunities."

The court stated that for the purpose of its opinion, it would assume, without deciding, that the phrase "rights, privileges, powers, and immunities" is so broad that it covers "anything of value to a person." Id. at 686. This latter phrase is broader than "rights, privileges, powers, and immunities." Normally, courts cannot broaden the terms of a statute without running afoul of the prohibition against judicial legislation. Courts cannot assume the legislative prerogative and rewrite a statute. Cf. Morehead v. State, 807 S.W.2d 577, 581 (Tex.Crim.App.1991).

Later the court stated:

Whatever the scope of "rights, privileges, powers, and immunities," the sexual harassment provision of the...