Shipp v. State

• Decision Date: 02 February 2011
• Docket Number: No. PD–1346–09.,PD–1346–09.
• Citation: 331 S.W.3d 433
• Parties: Allen Ray SHIPP, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

331 S.W.3d 433

Allen Ray SHIPP, Appellant,

v.The STATE of Texas.

No. PD–1346–09.

Court of Criminal Appeals of Texas.

Feb. 2, 2011.

David A. Schulman, Austin, for Appellant.Lisa C. McMinn, Asst. State's Atty., Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

PRICE, J., announced the judgment of the Court and delivered an opinion in which KEASLER, HERVEY and COCHRAN, JJ., joined.

The appellant was indicted for the offense of forgery under Section 32.21 of the Texas Penal Code.¹ Because the jury found that the counterfeit writing he passed, a purported store receipt, constituted a “commercial instrument,” it convicted him of a state jail felony under Section 32.21(d).² The Sixth Court of Appeals found the evidence insufficient to support conviction for a state jail felony, however, holding that there was no evidence to show that a store receipt constitutes a “commercial instrument” in contemplation of the statute.³ We granted the State Prosecuting Attorney's [SPA] petition for discretionary review in order to address whether the court of appeals has correctly construed the statute.⁴ We will reverse the court of appeals's judgment and reinstate the judgment and sentence of the trial court.⁵

FACTS AND PROCEDURAL POSTURE

The appellant was originally indicted for passing a “writing,” namely “a store receipt that purported to be a valid receipt issued by ... Wal–Mart ... to indicate the sale of merchandise.” ⁶ Prior to trial, the State amended the indictment to replace “writing” with “commercial instrument,” thereby exposing the appellant to prosecution for a state jail felony.⁷ Because the indictment also alleged two prior, sequential felony convictions, the appellant was ultimately susceptible to punishment as a second degree felon.⁸

At trial,⁹ the evidence, viewed in the light most favorable to the verdict, showed that the appellant attempted to wheel a shopping cart containing a computer and a computer desk out of a Wal–Mart in Bonham. An employee stopped the appellant to check his store receipt against the items in the cart and discovered a number of discrepancies. On closer inspection, the receipt proved to be a forgery. At the close of the State's evidence, the appellant requested a directed verdict, arguing that the store receipt did not amount to a “commercial instrument” in contemplation of Section 32.21(d) of the Penal Code.¹⁰ The trial court denied the request, and the jury found the appellant guilty of forgery of a commercial instrument, found the enhancement counts to be true, and assessed his punishment at twenty years' imprisonment and a fine of $10,000.¹¹ On appeal, the appellant challenged the sufficiency of the evidence to support his punishment as an enhanced state jail felon. He contended that, because the store receipt was a mere “writing,” not a “commercial instrument,” he should only have been prosecuted and punished as a misdemeanant under Section 32.21(b), not as an enhanced state jail felon under Section 32.21(d).

The court of appeals agreed. Finding no statutory definition of “commercial instrument,” the court of appeals also concluded that it “is not a phrase in common use[.]” ¹² It found little guidance from the paucity of cases—unpublished at that—that have addressed the meaning of the term.¹³ In the absence of “any persuasive or controlling caselaw addressing this issue,” ¹⁴ the court of appeals resorted to an established canon of statutory construction, the rule of ejusdem generis.¹⁵ Applying that rule to construe the phrase “other commercial instruments” in Section 32.21(d), the court of appeals set out a list of definitions of the writings specifically enumerated in the statute, taken from a standard legal dictionary, and observed that each specific type of writing “either grants or cedes a valuable right.” ¹⁶ Contrasting those specific writings to a store receipt, the court of appeals observed:

an ordinary receipt simply memorializes a transaction that has previously occurred, a fait accompli, which provides no future benefit. A receipt is a “written acknowledgment that something has been received.” [Black's Law Dictionary] at 1296 [8th ed.2004]. Although the testimony by the State showed many reasons why the fake receipt was faulty and demonstrated that such receipts can be cross-checked for veracity a number of ways, there was no testimony provided here to demonstrate that a receipt issued by this Wal–Mart store is anything more than the memorialization of a past transaction, as opposed to other kinds of things granting or ceding future benefits or rights listed in Section 32.21(d). Although we can conceive of situations in which a receipt might be used by some in more ways than those contained in the classic definition of the term, there is no evidence of that adduced in such a regard here.¹⁷

Thus finding that a store receipt is not of the same kind of “commercial instrument” as those expressly listed in Section 32.21(d), the court of appeals held that it cannot support a conviction for forgery as a state jail felony, and rendered an acquittal.¹⁸

Along the way, the court of appeals gratuitously opined that a definition of “commercial instrument” that the trial court submitted, without objection, in the jury charge at the guilt phase of trial, was erroneous and egregiously harmful to the appellant. The court of appeals seems to have believed that such a claim of trial error in the jury charge was somehow embedded in the substance of the appellant's legal sufficiency argument.¹⁹ But the appellant's brief did not raise any issue on appeal, explicitly or implicitly, with respect to trial error in the jury charge. He argued exclusively that the evidence was legally insufficient to support a conviction for forgery of a commercial instrument. The court of appeals had no cause to address jury charge error in the context of resolving a point of error aimed exclusively at legal sufficiency of the evidence, and we will not address it here. We granted the SPA's petition in order to evaluate the court of appeals's application of the rule of ejusdem generis to Section 32.21(d).

EJUSDEM GENERIS

Ejusdem generis means, literally, “of the same kind.” ²⁰ The rule of ejusdem generis provides that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” ²¹ It is one of those canons of statutory construction that may prove useful in determining the plain meaning of statutory language, that plain meaning constituting the best indicator of legislative intent to which we are bound to give effect.²² The rule is best regarded as an aid to construction, however, and not an end unto itself; ²³ it should never be invoked to trump otherwise manifest legislative intent.²⁴ If, for example, the specific terms exhaust the class of items enumerated in the statute, it must be presumed that any generic term that follows must refer to items transcending the class, since a contrary construction “would contravene the more important rule of construction that all words are to be given effect.” ²⁵ “The indication that the general words have their full and natural meaning, regardless of their connection with a series of specific words, may be found in the context of the statute as a whole, by a consideration of its purpose.” ²⁶ Moreover, the scope of the class that is defined by the enumeration is sometimes, itself, ambiguous:

The problem is to determine what unmentioned particulars are sufficiently like those mentioned to be made subject to the act's provisions by force of the general reference. In most instances there is a wide range of ways in which classes could be defined, any one of which would embrace all of the members in an enumeration. Germaneness to the subject and purpose of the statute, viewed in terms of legislative intent or meaning to others, is the basis for determining which among various semantically correct definitions of the class should be given effect.²⁷

Finally, we must keep in mind that the provisions of the Penal Code are not to be strictly construed,²⁸ and that, in construing Penal Code provisions, we must apply certain provisions of the Code Construction Act. ²⁹ With these considerations in mind, we turn to the court of appeals's application of the rule of ejesdum generis in the instant case.

ANALYSIS

Section 32.21(d) does not plainly provide that forgery of a store receipt constitutes a state jail felony—at least not in the same way that it plainly provides that, e.g., a will and a check and a contract do. Is it plain that the catch-all phrase that follows the specific list of writings in the statute, “other commercial instrument,” was intended by the Legislature to include a store receipt? The court of appeals believed that the answer to this question turned on proper application of the rule of ejusdem generis, ultimately holding that a store receipt is not of the same class of “commercial instruments” as those “other” commercial instruments expressly enumerated in Section 32.21(d). All of the instruments expressly mentioned in the statute, in the court of appeals's view, “relate to legal rights or relationships: the right to take or cede possession of property rights or to hold another party to or release another party from contractually stated agreements.” ³⁰ Because a store receipt merely “memorializes” a past commercial transaction and does not “either grant or cede a present or future benefit or right” in the way that the enumerated commercial instruments do, the court of appeals held, it is not covered under the state jail provision of the statute.³¹

While we do not necessarily disagree with the court of appeals's characterization, it seems to us that the class it purports to identify—writings that “relate to legal rights or relationships”—is so broad as to be largely meaningless for purposes of...