Smith v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before DAVIS, C.J., and CUMMINGS, J., and McDONALD; DAVIS
• Citation: Smith v. State, 959 S.W.2d 1, 1997 WL 195290 (Tex. App. 1997)
• Decision Date: 23 April 1997
• Docket Number: No. 10-95-036-CR,10-95-036-CR
• Parties: 123 Ed. Law Rep. 962 Robert SMITH, Appellant, v. The STATE of Texas, Appellee.

Page 1

959 S.W.2d 1

123 Ed. Law Rep. 962

Robert SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 10-95-036-CR.

Court of Appeals of Texas Waco.

April 23, 1997.

Rehearing Overruled Aug. 6, 1997.

Discretionary Review Refused March 11, 1998.

Dick DeGuerin, Lewis Dickson & Matt Hennessy, DeGuerin & Dickson, Houston, for appellant.

Bill Turner, District Attorney, Ed Spillane, Asst. District Attorney, Bryan, for appellee.

Before DAVIS, C.J., and CUMMINGS, J., and McDONALD, C.J., (Retired).

OPINION

DAVIS, Chief Justice.

A jury convicted Appellant Robert Smith of the offense of solicitation of a gift by a public servant. See TEX. PENAL CODE ANN. § 36.08(d) (Vernon 1994). ¹ The jury sentenced Smith to confinement in jail for a period of 180 days and a fine of $2,750. The jury recommended that imposition of the jail sentence be suspended and that Smith be placed on community supervision.

I. FACTUAL BACKGROUND

The indictment alleges that Smith solicited benefits on or about May 3, 1993 from Patrick Maloney ("Patrick"), Bill Maloney ("Bill"), and Liz Osborn ("Osborn"), all employees of Barnes & Noble Bookstores, Inc. ("Barnes & Noble"). During the pertinent time period, Smith was Vice-President for Finance and Administration for Texas A & M University. Barnes & Noble had a contract with Texas A & M to operate the university's bookstore. Barnes & Noble's corporate offices are located in New York.

The relationship between Texas A & M and Barnes & Noble began in 1990 when the Board of Regents of the Texas A & M University System directed President William Mobley ("Mobley") or his designee to negotiate a contract with the company for the operation of the Texas A & M bookstore. Mobley designated Smith to carry out this directive.

In July 1990 the parties executed a ten-year contract in New York which provided that Barnes & Noble would operate the bookstore. Smith traveled to New York each year thereafter to review the contract. Smith approached Patrick, a Barnes & Noble vice-president, in early 1993 about the possibility of extending the contract for an additional five years. The parties met in College Station for preliminary discussions about the possible extension. Smith told Patrick that he wanted to meet in New York to finalize the negotiations and execute the contract extension. According to Patrick, Smith either told him his wife would be making the trip or "it was understood."

Barnes & Noble provided round trip plane tickets, hotel accommodations, meals, ground transportation, and theater tickets for Smith, Chairman of the Board of Regents Ross Margraves ("Margraves"), and their wives. The Smiths and the Margraves traveled to New York on June 10, 1993, and spent three nights there. The wives did not participate in the negotiations or in the execution of the contract extension.

From 1990 to 1992, Smith made five trips to New York in connection with the contract. Mrs. Smith accompanied him on three of these trips. Barnes & Noble provided air and ground transportation, hotel lodging, meals, and on some occasions, theater tickets for each of the five journeys. Mrs. Smith did not participate in any of the contract dealings.

When Smith discussed with Barnes & Noble the signing of the original contract in 1990, he asked whether his wife could join him for the trip to New York. Prior to trips in 1991 and 1992, Smith advised Barnes & Noble officials that his wife would be joining him. The State offered evidence of the prior journeys to show the course of conduct which developed between the parties and to show Smith's intent and knowledge when he made the arrangements for the 1993 trip. Barnes & Noble executives testified that it is exceedingly rare for university officials to bring their wives on these kind of business trips.

Smith countered that Barnes & Noble provided these accommodations on account of the friendship that developed between himself and the Barnes & Noble executives. Accordingly, he asked the court to instruct the jury on the "independent relationship" defense provided by section 36.10(a)(2) of the Penal Code. TEX. PENAL CODE ANN. § 36.10(a)(2) (Vernon 1994). ² In the alternative, Smith argued that he and his wife accepted the accommodations as guests of Barnes & Noble. Under this theory, he asked the court to instruct the jury on the "guest" defense provided by section 36.10(b) of the Code. Id. § 36.10(b) (Vernon 1994). ³

The State argued that these defenses only apply in cases where the public servant "accepts" rather than "solicits" a benefit. The court accepted the State's position and denied Smith's requested defensive instructions.

II. THE APPELLATE POINTS

Smith raises twenty-one points of error in this appeal. In fifteen points, he alleges the court erred in:

overruling his motion to quash the indictment;

overruling his motion for an instructed verdict;

denying his requested instruction under section 36.10(a)(2);

denying his requested instruction under section 36.10(b);

refusing to submit his requested definition of "solicit";

failing to define "conduct" in the charge;

failing to submit an "affirmative" instruction on the statute of limitations;

overruling his objection to submission of implied solicitation as a theory of the case;

failing to give the jury a limiting instruction at the time evidence of extraneous conduct was admitted;

giving the jury such an instruction in the charge;

failing to define the elements of the alleged extraneous offenses in the limiting instruction;

commenting on the weight of the evidence by reading Rule 610 of the Rules of Criminal Evidence to the jury in response to a leading objection by the State;

admitting evidence of the solicitation and spousal travel policies of Texas A & M;

allowing evidence of extraneous conduct; and

admitting evidence of a proposal by another company which effectively converted his prosecution into "a quasi anti-trust--unfair trade competition" dispute.

In his other six points Smith claims:

the evidence is legally insufficient to prove he received any "benefit"; that he committed an offense at all; or that he solicited any benefit within the limitations period (three points);

the evidence is legally insufficient because it establishes that his acceptance of the benefits alleged fell within either of the defenses provided by section 36.10(a)(2) & (b);

a variance exists between the indictment and the evidence; and

section 36.08(d) is unconstitutionally vague and overbroad.

We will affirm the judgment.

III. THE INDICTMENT

In his first point, Smith asserts that the trial court erred in overruling his motion to quash the "amended" indictment. ⁴ He complains specifically that the indictment fails to state an offense because it allows conviction on a theory of solicitation "by implication." Smith contends in his third point that the evidence was legally insufficient to prove he violated section 36.08(d), assuming arguendo the truth of the State's allegations.

The record reflects that Smith filed his motion to quash the "amended" indictment on November 1, 1994. Smith's trial began that same day. The court denied the motion on November 2.

The failure of an indictment to allege an offense is a defect of substance. McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.--Fort Worth 1996, pet. ref'd); TEX.CODE CRIM. PROC. ANN. art. 27.08 (Vernon 1989). If the defendant fails to object to a substantive defect in an indictment before the date of trial, he waives the right to complain about the alleged defect "at a later time, on appeal, or in any other postconviction proceeding." Alexander v. State, 820 S.W.2d 821, 822 (Tex.App.--Waco 1991, pet. ref'd); TEX.CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp.1997).

Because Smith did not file his motion to quash the indictment until the date of trial, he has waived the right to complain of the alleged defect in the indictment. Alexander, 820 S.W.2d at 822; TEX.CODE CRIM. PROC. ANN. art. 1.14(b). Thus, we overrule his first point.

Although Smith couches his third point in the language of sufficiency of the evidence, his argument remains that the State failed to allege an offense. This is borne out by his argument in support of this point. In his brief, Smith argues that "the State seems to have realized that it could not prove a codified crime, so it decided to artfully redraft the statute and prosecute Appellant anyway." In a footnote, Smith directs the court to the argument and authorities set out in his first point concerning the "impropriety of this charge[ ] and the prosecution of Appellant for it."

Smith's third point merely repeats the arguments set forth in his first point. Because Smith did not file his motion to quash the indictment until the date of trial, he has waived the right to complain of any alleged defect in the indictment. Alexander, 820 S.W.2d at 822; TEX.CODE CRIM. PROC. ANN. art. 1.14(b). Thus, we overrule his third point.

IV. EXTRANEOUS ACTS

Smith complains in his twentieth point about the introduction of evidence of prior business trips he and his wife made to New York. ⁵ He claims the State offered this evidence for the sole purpose of showing character conformity in violation of Rule 404(b) of the Rules of Criminal Evidence. TEX.R.CRIM. EVID. 404(b). ⁶ Smith alleges in his fifteenth point that the court erred in failing to give the jury a limiting instruction at the time the evidence of these extraneous transactions was offered. See id. 105(a).

A. THE OTHER ACTS

The State offered evidence of five prior trips Smith made to New York in connection with the Barnes & Noble contract. These trips occurred in May 1990, July 1990, January 1991, September 1991, and July 1992. On the May 1990 trip, Smith sought to familiarize himself with Barnes & Noble. He called Bill, a Barnes & Noble vice-president, and told him he wanted to visit the corporate offices and some of the bookstores the company operated in New York City. Bill made arrangements for Smith...