State v. Castorena
| Decision Date | 20 January 2016 |
| Docket Number | No. 04–14–00671–CR,04–14–00671–CR |
| Citation | 486 S.W.3d 630 |
| Parties | The State of Texas, Appellant v. Raul Becerra Castorena, Appellee |
| Court | Texas Court of Appeals |
Fred Hernandez, District Attorney, Del Rio, TX, for Appellant.
Stephen Foster, San Antonio, TX, for Appellee.
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice
Appellant, the State of Texas, appeals the trial court's order granting appellee Raul Becerra Castorena's motion to quash the indictment. On appeal, the State contends the trial court erred in granting the motion to quash because: (1) the indictment provided Castorena with sufficient notice; and (2) Castorena waived any complaint regarding the form and substance of the indictment by failing to object prior to trial. We reverse the trial court's judgment and remand for further proceedings.
A detailed rendition of the underlying facts is unnecessary to the disposition of this appeal. Accordingly, we provide a brief procedural background relevant to the issues presented.
In 2008, a grand jury indicted Castorena on two counts—theft and misapplication of fiduciary property. Before trial, the trial court granted the State's motion to amend the indictment, allowing the State to add the following language to both counts of the indictment:
And it is further presented in and to said Court that all of the said amounts were obtained pursuant to one scheme or continuing course of conduct, and the aggregate value of the property obtained was $1500 or more but less than $20,000[.]”
The matter then proceeded to a jury trial. During trial, the trial court granted Castorena's motion for directed verdict as to the theft count. The case proceeded on the remaining charge of misapplication of fiduciary property. However, the jury was unable to reach a verdict, and the trial court declared a mistrial.
After the mistrial, the State sought to retry Castorena for the offense of misapplication of fiduciary property. However, before the trial began, Castorena filed a motion to quash the indictment, claiming it failed to provide “appropriate and reasonable notice” to allow him to prepare a defense. He specifically complained the indictment alleged he misapplied fiduciary property over a period of more than three years without specifying the instances that formed the basis of the indictment.
The trial court granted Castorena's motion to quash. Thereafter, the State perfected this appeal. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(1)
(West Supp.2015) (permitting State to appeal order dismissing all or part of indictment, information, or complaint).
As noted above, the State brings two contentions on appeal. First, the State asserts the trial court erred in granting Castorena's motion to quash the indictment because the indictment was sufficient to give Castorena notice. Specifically, the State argues that because the amended indictment contained aggregation language as permitted by the Texas Penal Code, it was unnecessary to provide Castorena with specific instances of misapplication. Second, the State contends Castorena waived his right to complain about the indictment by failing to object to it prior to the first trial, i.e., the trial that ended in a mistrial.
We conduct a de novo review of a trial court's ruling on a motion to quash the indictment. State v. Rosseau, 396 S.W.3d 550, 555 n. 6 (Tex.Crim.App.2013)
(citing Smith v. State, 309 S.W.3d 10, 13–14 (Tex.Crim.App.2010) ); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). We conduct a de novo review because the sufficiency of a charging instrument is a question of law. Rosseau, 396 S.W.3d at 555 n. 6 (citing Smith, 309 S.W.3d at 13–14 ); Moff, 154 S.W.3d at 601. As noted by the court in Moff, when the resolution of a question of law does not depend on the credibility and demeanor of a witness, then the trial court is in no better position than the appellate court to make the determination, and therefore, a de novo review is the appropriate standard. 154 S.W.3d at 601. Here, the trial court's decision was based on the indictment, the motion to quash, and argument of counsel. Thus, the trial court was in no better position than we are now with regard to determining whether the indictment provided Castorena with sufficient notice. We must, therefore, apply the de novo standard of review. See id.
The right of a defendant to notice of the State's accusations is set forth in the federal and state constitutions. See U.S. Const. amend. VI
; Tex. Const. art. I, § 10. “Thus, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense.” Moff, 154 S.W.3d at 601. The Texas Code of Criminal Procedure provides guidelines with regard to the sufficiency of an indictment. Specifically, Article 21.11 provides:
An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment ...”
Tex.Crim. Proc.Code Ann . art. 21.11 (West 2009)
; see id. art. 21.03 (); id. art. 21.04 ().
In the trial court and now in this court, Castorena argues the indictment—the portion alleging misapplication of fiduciary property—did not provide him with sufficient notice because the misapplications happened over a three and half year period, and Castorena “cannot be expected to gather evidence and prepare a defense for every [action] made during the three and half year period of the time alleged in ... the State's indictment.” According to Castorena, the State was required to allege in the indictment each instance of misapplication so as to allow him to prepare a defense.
In support of this argument, Castorena relies upon the court's decision in Moff.
In Moff, which is factually similar, the defendant, who was the chief appraiser of Nueces County, was alleged to have misapplied money and credit cards over a seven-year period. 154 S.W.3d at 600. After he was indicted for misapplication of fiduciary funds, Moff filed a motion to quash the indictment for failing to specify which transactions formed the basis of the indictment. Id. The trial court granted the motion to quash, but on appeal, the appellate court held that the trial court abused its discretion in granting the motion. Id. The Texas Court of Criminal Appeals granted a review and held “[i]t is unreasonable to require the defendant to gather evidence and prepare a defense for each of the credit card and cash transactions he made during the seven-year time frame of the indictment.” Id. at 603.
At first glance, it would appear Moff
supports Castorena's motion and the trial court's ruling thereon. However, the State argues Moff is inapplicable because Castorena was charged with an aggregate offense. In support of its position, the State points to the court of criminal appeals' decision in Kellar v. State, 108 S.W.3d 311, 312 (Tex.Crim.App.2003) (en banc), arguing Kellar requires we find Castorena had sufficient notice and we reverse the trial court's order granting Castorena's motion to quash. We agree with the State.
Castorena was charged with misapplication of fiduciary property, an offense found in Chapter 32 of the Texas Penal Code—entitled “Fraud,” specifically section 32.45(c). See Tex. Penal Code Ann. § 32.45(c)
(West Supp.2015). Also found in Chapter 32 is a provision which provides that when “amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.” Id. § 32.03 (West 2011) (emphasis added). Thus, pursuant to the aggregating language in the indictment, Castorena was charged with a single offense, not numerous separate offenses. In Kellar, the Texas Court of Criminal Appeals addressed whether an indictment containing the exact same aggregating language, albeit in a theft case under Chapter 31 of the Penal Code, gave the defendant sufficient notice of the offense alleged. 108 S.W.3d at 312. It found the indictment sufficient. Id.
In Kellar,
the defendant was indicted for theft. 108 S.W.3d at 312. The indictment alleged Kellar, over the course of more than two years, unlawfully appropriated property “pursuant to one scheme and continuing course of conduct” with an “aggregate value” of “$100,000 or more” with the owner's consent. Id. Like Castorena, Kellar filed a motion to quash the indictment, asserting the indictment did not provide sufficient notice because it failed to state “specifically each separate alleged offense or theft, by date, alleged complainant, amount, location and type of property taken.” Id. Kellar claimed the lack of notice precluded him from adequately preparing a defense. Id.
The trial court denied Kellar's motion, and the appellate court affirmed. Id.
On review, the court of criminal appeals turned to section 31.09 of Chapter 31—entitled “Theft.” That section, which is identical to section 32.03 found in Chapter 32, permits conduct that occurs pursuant to one scheme or continuing course of conduct to be considered one offense and the amounts allegedly taken aggregated to determine the grade of the offense. Tex. Penal Code Ann. § 31.09 (West 2011) (emphasis added). The court found that because the indictment contained the aggregating language...
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