Sanchez v. State

• Decision Date: 16 August 2000
• Docket Number: No. 04-96-00140-CR,04-96-00140-CR
• Parties: (Tex.App.-San Antonio 2000) Arthur Garcia SANCHEZ, Appellant v. The STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 687

32 S.W.3d 687 (Tex.App.-San Antonio 2000)

Arthur Garcia SANCHEZ, Appellant v. The STATE OF TEXAS, Appellee

No. 04-96-00140-CR

For the Court of Appeals Fourth District of Texas

August 16, 2000

Rehearing Overruled October 20, 2000.

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 95-CR-6046 Honorable Susan D. Reed, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice Catherine Stone, Justice John F. Onion, Jr. ¹, Justice.

OPINION ON REMAND

Opinion by: John F. Onion, Jr., Justice (Assigned).

This appeal was taken from a conviction for official oppression for sexual harassment. See Tex. Pen. Code Ann. § 39.03 (a)(3), (c) (Vernon 1994).² The jury found appellant, Arthur Garcia Sanchez, guilty of the class A misdemeanor³ and assessed his punishment at confinement in the county jail for one year and a fine of $3,000. The jury, however, recommended community supervision. The imposition of the sentence was suspended. Appellant was placed on community supervision for two years subject to certain conditions.

On original submission, this Court sustained appellant's contentions, finding that the sexual harassment provision of the statute 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 over broad in violation of the First Amendment to the federal constitution. See Sanchez v. State, 974 S.W.2d 307 (Tex. App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on 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 (Tex. Crim. App.), cert. denied, 120 S. Ct. 531 (1999) (Sanchez II).

In construing Section 39.03 (a)(3), (c) and finding it constitutional, the Court of Criminal Appeals discussed some of the essential elements of the offense, including some that were case-developed. The Court stated:

We express no opinion concerning whether some or all of the allegations in the indictment contain all of the elements required by the sexual harassment provision as we have construed it. The Court of Appeals may address such issues on remand if those issues are found to be properly before the court.

Sanchez II, 995 S.W.2d at 689-90 n.11 (emphasis added).

On remand, in light of the procedure normally utilized, the parties were granted leave by this Court to rebrief the case. See Theus v. State, 863 S.W.2d 489, 491 (Tex. Crim. App. 1993).

POINTS OF ERROR

In his brief following remand, appellant raises six points of error. First, appellant contends that the trial court erred in overruling his motion to set aside the amended indictment because, in violation of the federal and state constitutions, and state statutory provisions, the indictment did not, inter alia, charge an offense. Second, appellant urged the trial court erred in overruling the same motion because the indictment did not specify what "rights, privileges, powers, or immunities" were at issue in the case. Third and fourth, appellant challenges the factual sufficiency of the evidence to sustain the conviction. Fifth and sixth, appellant contends that the trial court erred in admitting into evidence summaries of telephone records in violation of Rules 901 and 1006 of the Texas Rules of Evidence.

Prior to addressing appellant's contentions, some background is necessary, including the statute, the indictment under which appellant was prosecuted, and the Sanchez II opinion. At this point in the appellate process, the instant case presents an out-of-the ordinary situation on remand. As recognized by the earlier quoted portion of the opinion in Sanchez II, there are some case-developed elements of the offense under section 39.03(a)(3), (c) as construed by the Court of Criminal Appeals that were not included in the indictment. Until the court spoke, the grand jury, the parties, and the trial court were not familiar with the construction to be placed on section 39.03(a)(3), (c).

THE STATUTE

The official oppression statute criminalizes certain acts by a public servant acting under the color of his office or employment. See Tex. Pen. Code Ann. § 39.03 (Vernon 1994). This statute provides:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor.

(emphasis added).

INTERPRETATION OF SECTION 39.03(a)(3), (c)

Sanchez II interpreted the language of section 39.03(a)(3), (c), determined some of the elements of the offense, and held the statute constitutional. We deem it important to examine the holding in Sanchez II.

The Court of Criminal Appeals found that the text in section 39.03(c) (defining sexual harassment) could not be interpreted in accordance with the plain meaning of its language because it was ambiguous concerning which alternative was modified by the term "unwelcome". See Sanchez II,. 995 S.W.2d at 683. The Court recognized two possible interpretations-that "unwelcome" modified only sexual advances or modified the entire statutory list including "requests for sexual favors" and "other verbal or physical conduct of a sexual nature." Id. at 683-84. The Court, disavowing language in State v. Edmond, 933 S.W.2d 120, 122, 127, 128 (Tex. Crim. App. 1996), stated: "And while the grammatical construction for the latter interpretation is awkward, that construction is not definitely incorrect. As the sexual harassment definitions language is ambiguous, we resort to sources outside the language of the definition." Sanchez II, 995 S.W.2d at 684.

In doing so, the Court concluded that all alternative forms of sexual harassment under section 39.03(a)(3), (c) must involve "unwelcome" conduct. See id. at 685.

Further, the Court found that:

the statute requires intent on the part of the perpetrator that the conduct be of a sexual nature, not merely that the recipient perceive the conduct as sexual. To intentionally subject someone to a sexual advance, for example, the actor must be intending a sexual advance. To use the Court of Appeals' examples, a wink or a smile would not fall within the statute unless the perpetrator intended the wink or smile to be a sexual advance (or a request for sexual favors, or other verbal or physical conduct of a sexual nature). Moreover, because the statute requires that the perpetrator intentionally subjects the victim to "unwelcome" sexual conduct, the perpetrator must necessarily be aware [know] that the sexual conduct is in fact unwelcome to be liable under the statute.

Sanchez II, 995 S.W.2d at 685.⁴

The Court of Criminal Appeals further stated:

The statute requires that the perpetrator not only intentionally subject a victim to the specified unwelcome sexual conduct . . . the perpetrator must also intend that submission to the conduct be 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 (a) the sexual conduct and (2) the quid pro quo.

Id. at 686.

RIGHT, PRIVILEGE, POWER, OR IMMUNITY

For the purpose of the Sanchez II opinion, the Court of Criminal Appeals assumed but did not decide that the statutory phrase "right, privilege, power, or immunity" was so broad "that it covers anything of value to a person." Id. at 686.⁵ Moreover, the Court recognized that the statute does not limit the quid pro quo to the recipient's exercise or enjoyment of rights, privileges, powers, or immunities but a defendant could make "sexual advances upon the recipient submission to which could be a term or condition of a third party's exercise or enjoyment of a right, privilege, power, or immunity." Id.

And important to our discussion, the Sanchez II opinion later added: "As for the phrase 'right, privilege, power, and immunity,' we need not decide whether that phrase may in some instance deprive a person of fair notice of the conduct proscribed." Id. at 689.

SOME ELEMENTS

The Sanchez II opinion sought to make clear some of the essential elements of the offense under section 39.03(a)(3), (c) when it stated:

Whatever the scope of "rights, privileges, powers, and immunities," the sexual harassment provision of the official oppression statute proscribes conduct that, at least, contains the following elements:

(1) an official's use of his official position,

(2) to intentionally engage in conduct of a sexual nature or attempt to procure sexual favors,

(3) which he knows is not welcomed by the recipient,

(4) intending submission to which to be a term or condition of the recipient's or another person's enjoyment of something of value to that person.

Id. at 687.

In concluding that the First Amendment was not implicated in the activity proscribed by the statute, the Court wrote:

Sexual harassment under the statute is essentially sexual extortion: an official used his official position to coerce...