State v. Edmond

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MANSFIELD; CLINTON; OVERSTREET; MEYERS; BAIRD
• Citation: State v. Edmond, 933 S.W.2d 120 (Tex. Crim. App. 1996)
• Decision Date: 02 October 1996
• Docket Number: No. 0958-95,0958-95
• Parties: The STATE of Texas, Appellant, v. Tony EDMOND, Appellee.

Page 120

933 S.W.2d 120

The STATE of Texas, Appellant, v. Tony EDMOND, Appellee.

No. 0958-95.

Court of Criminal Appeals of Texas En Banc.

Oct. 2, 1996.

Michael Logan Ware, Fort Worth, for appellant.

Jeffrey L. Van Horn, Asst. State's Attorney, Matthew Paul, State's Atty., Austin, for State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

On June 1, 1994, appellee, Tony Edmond, was charged by indictment with the offense of official oppression, alleged to have occurred while he was employed as a police officer for the City of Wichita Falls. ¹ The indictment contained four paragraphs, each alleging an alternative means of committing the offense. The trial court quashed all four paragraphs of the indictment. The State appealed, and the Second Court of Appeals affirmed the trial court's order as to all four paragraphs. State v. Edmond, 903 S.W.2d 856 (Tex.App.--Fort Worth 1995). We granted the State's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), on two grounds: ² (a) whether the court of appeals erred when it held that an indictment for official oppression must specify that appellee's alleged act of "mistreatment" was actually unlawful, and (b) whether the court of appeals erred in holding that an indictment for official oppression must describe or define "unwelcome sexual advances" and "request for sexual favors." We will affirm the judgment of the court of appeals as to the first ground, and reverse as to the second ground.

I.

Paragraph two of the indictment alleged that appellee did:

intentionally subject H.M. Nielson to mistreatment, to wit: preventing H.M. Nielson from driving a motor vehicle by denying H.M. Nielson access and use to [sic] the motor vehicle under the care, custody, and control of the said H.M. Nielson, and the defendant was then and there acting under color of his office and/or employment as a public servant, namely, a police officer for the City of Wichita Falls, Texas. [emphasis added]

In response to this paragraph, appellee filed a motion to quash in which he argued that paragraph two of the indictment failed to allege an offense because it did not aver two necessary elements of "Official Oppression" under § 39.02(a)(1). See Smith v. State, 571 S.W.2d 917, 919 (Tex.Crim.App.1978). The first element appellee claimed was missing was an allegation that he acted in a way "that he [knew was] unlawful," a particular culpable mental state found in § 39.02(a)(1). The second element appellee claimed the indictment lacked was an allegation that the mistreatment was actually unlawful. ³

During the hearing on appellee's motion to quash, the State contended that the specific culpable mental state found in § 39.02(a)(1)--the defendant's knowledge that his conduct was unlawful--only modified "arrest, detention, search, seizure, dispossession, assessment, or lien ..." Hence, a public servant acting under color of his office would violate this statute by intentionally "mistreating" another, and no more. However, recognizing that courts of appeals had ruled unfavorably to its interpretation, the State amended paragraph two by interlineating the particular culpable mental state which appellee insisted was essential: that the defendant engaged in mistreatment he "knew was unlawful." The State did not, however, amend the indictment to allege the second of appellee's perceived deficiencies: that appellee's mistreatment was actually unlawful. At the hearing on appellee's motion to quash, the State contended, alternatively, that the amendment cured any defect resulting from the missing element.

In response to the State's argument, appellee insisted that knowledge of unlawful conduct referred to every act in § 39.02(a)(1), including mistreatment. Appellee also contended that the State could not amend paragraph two by interlineating an essential element because such a procedure would circumvent his right to be indicted by a grand jury. Also of interest is appellee's admission, during this hearing that, if the State's amendment was proper, the indictment would properly allege a crime. The importance of this admission is that appellee apparently abandoned his contention that the indictment had also to allege that mistreatment was actually unlawful, the second deficiency appellee addressed in his written motion to quash.

In any event, the trial court granted appellee's motion to quash. The trial court explicitly ruled that the State's amendment was improper in this context because it circumvented appellee's right to grand jury indictment. Since amendment was improper, the trial court found, the indictment failed to allege an offense because it did not allege that appellee knew his conduct was unlawful. The trial court never explicitly ruled, at the hearing, that an indictment had also to allege that mistreatment was actually unlawful. However, in the trial court's written order quashing the indictment, it adopted the reasoning set out in appellee's written Motion to Quash. This reasoning included appellee's argument that the indictment was defective because it failed to allege that his conduct was actually unlawful.

In its brief to the Second Court of Appeals, the State contended that the trial court erred because the only appropriate interpretation of § 39.02(a)(1) supported its contention that "knowledge of illegality" did not modify "mistreatment." Hence, the State argued, it was not required to allege either "knowledge of illegality" or actual unlawful mistreatment. Importantly, the State did not challenge the trial court's decision to prohibit the amendment. ⁴ In the court of appeals, appellee cited two cases from the Thirteenth Court of Appeals in which that court held that "knowledge of illegality" did modify "mistreatment." See Zuniga v. State, 664 S.W.2d 366 (Tex.App.--Corpus Christi 1983, no pet.); Prevo v. State 778 S.W.2d 520 (Tex.App.--Corpus Christi 1989, pet.ref'd). Appellee also argued that the Code Construction Act supported his interpretation.

The Second Court of Appeals affirmed the trial court's ruling, rejecting the State's arguments. The appellate court began its opinion with an observation that no grammatical rule prevented "knowledge of illegality" from modifying "mistreatment." With this observation, § 39.02(a)(1) was somewhat ambiguous. The court of appeals resolved the ambiguity by invoking the Code Construction Act, Tex.Gov't.Code § 311.021:

In enacting a statute, it is presumed that:

(1) compliance with the constitutions of this state and the United States is intended;

(2) the entire statute is intended to be effective;

(3) a just and reasonable result is intended;

(4) a result feasible of execution is intended.

Under the first factor, the court of appeals declared that a statute which criminalized "mistreatment" alone would be unconstitutionally vague and overbroad. Such a potential for constitutional infirmity favored an interpretation which narrowed "mistreatment" by utilizing "unlawful knowledge."

Under the third factor, the court of appeals held that it would be neither "just" nor "reasonable" to criminalize "mistreatment" otherwise not unlawful:

"Mistreatment" could obviously include everything from rudeness during a traffic stop to applying handcuffs uncomfortably tight. Are these to become criminal violations punishable by up to one year in jail and a fine?

State v. Edmond, 903 S.W.2d at 861.

Under the fourth factor, the court of appeals found that there would be no feasible way to fairly enforce a statute which criminalized "lawful mistreatment" because the potential for abuse and unequal enforcement of the statute was great. For these reasons, the court of appeals held that the State's interpretation of § 39.02(a)(1) was incorrect.

Unfortunately, it is not apparent whether the Second Court of Appeals found that an indictment alleging a violation of § 39.02(a)(1) must allege both that a defendant knew his conduct was unlawful and that the conduct was actually unlawful. The Court of Appeals concluded its analysis of this point of error by stating: "For the reasons stated above, we conclude that paragraph two of the indictment was defective." While it is clear that the Court of Appeals would at least require an allegation that appellee knew his conduct was unlawful, its reasoning does not illustrate whether the State must also allege that appellee's conduct was actually unlawful.

In its brief to this Court, the State again argues that the best grammatical interpretation of penal code § 39.02(a)(1) is that "knowledge of illegality" does not modify "mistreatment." It begins its argument by citing a "well-established English grammatical principle" that qualifying words, phrases, and clauses are to be applied to words or phrases immediately preceding, and are not to be construed as extending to and including others more remote. See 82 C.J.S. Statutes § 334; 2A SUTHERLAND STATUTORY CONSTRUCTION § 47.33 (4th ed. 1984). Under this "rule," "knowledge of illegality" would apply to only the series of words after the disjunctive "or" in § 39.02(a)(1), and not to "mistreatment" which is located before the "or."

The State contends also that the Legislature could sensibly treat "mistreatment" in a manner different from the other forms of conduct delineated in § 39.02(a)(1). The State argues that "mistreatment," unlike the other forms of conduct in the subsection, contains an inherent element of wrongfulness. Thus, unlike "arrest, detention, search, seizure, dispossession, assessment, or lien," each of which has no overtone of wrongfulness, "mistreatment" has no need to be modified by "knowledge of illegality." Indeed, the State insists that it would have been reasonable for the Legislature to criminalize all forms of intentional mistreatment by a public servant acting under color of his office or employment.

The State also furnishes what it deems a more sensible...