State v. Empey
Citation | 502 S.W.3d 186 |
Decision Date | 04 August 2016 |
Docket Number | NO. 02-14-00407-CR,02-14-00407-CR |
Parties | The State of Texas, State v. Frank Empey, Appellee |
Court | Court of Appeals of Texas |
Greg Lowery, District Attorney for Wise County, Decatur, TX, for State.
Richard Gladden, Law Office of Richard Gladden, Denton, TX, for Appellee.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
The State of Texas brings this pretrial appeal challenging the trial court's order that dismissed the grand jury's indictment for theft of aluminum, bronze, copper
, or brass with a value of less than $20,000. In one issue, the State argues that the trial court erred by granting appellee Frank Empey's motion to dismiss the indictment because despite the trial court's finding otherwise, section 31.03(e)(4)(F) of the penal code is constitutional. We conclude that section 31.03(e)(4)(F) is not facially unconstitutional, and we therefore reverse the trial court's order dismissing the indictment against appellee.
A grand jury indicted appellee for theft. The indictment charged him with a state jail felony because it alleged that he had stolen "aluminum or bronze or copper
or brass, of the value of less than $20,000." See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).
or brass. This means a person could be charged with stealing a roll of copper pennies and be charged with a State Jail Felony or [the person] could be charged with a Class C Misdemeanor. A person could be charged with stealing a brass ring worth one dollar and be charged either as a State Jail Felony or a Class C Misdemeanor. In this case the defendant is charged with stealing four aluminum bats with a stated value of forty dollars and he is being charged with a State Jail Felony. It is obvious that the statute as it is being applied to him is void for vagueness .... The statute as it is being used against [appellee] allows the prosecution and police too much discretion to either charge him with a felony or a misdemeanor which is clearly impermissible. [Emphases added.]
Without conducting a hearing, the trial court granted appellee's motion to dismiss. The State asked the trial court to file findings of fact and conclusions of law, and the court did so. The court's findings and conclusions state:
penny from the top of someone's desk would be a felony; an ounce of gold[,] a misdemeanor; an empty aluminum Coors Light can, a felony.
Conclusions of Law:
The Court considered [appellee's] Motion and the State's Opposition and decided that the Statute is overly broad and void for vagueness as it is being applied to [appellee] ....
The Legislative intent of [section] 31.03(e)(4)(F) did not envision its application in this alleged circumstance . [Emphases added.]
To the findings of fact and conclusions of law, the trial court attached documents from another case before the court. Those documents included arguments related to a motion to quash an indictment filed by another defendant who had also contested the constitutionality of section 31.03(e)(4)(F). The attachments also included an affidavit from the attorney in that case, who stated that she had called State Senator Royce West's office concerning the legislation that led to the enactment of current section 31.03(e)(4)(F), and an e-mail from Senator West's legislative aide concerning the purposes of the statute and of recent amendments to it.2 The State brought this appeal from the trial court's order dismissing the indictment against appellee.
The State contends that the trial court erred by granting appellee's motion to dismiss, which both parties on appeal characterize as a motion to quash the indictment. When a trial court's ruling on a defendant's motion to quash an indictment concerns a matter unrelated to the credibility or demeanor of witnesses, such as the constitutionality of a statute, we review the ruling de novo and therefore give no deference to the ruling. Lawrence v. State , 240 S.W.3d 912, 915 (Tex.Crim.App.2007), cert. denied , 553 U.S. 1007, 128 S.Ct. 2056, 170 L.Ed.2d 798 (2008) ; State v. Richardson , 439 S.W.3d 403, 404 (Tex.App.–Fort Worth 2014, pet. ref'd) (mem. op.).
When a defendant challenges the constitutionality of a statute, Ex parte Lo , 424 S.W.3d 10, 15 (Tex.Crim.App.2013) (footnote omitted); see State v. Rosseau , 396 S.W.3d 550, 557 (Tex.Crim.App.2013). A pretrial motion to quash an indictment may be used only for a facial challenge to the constitutionality of a statute. Jimenez v. State , 419 S.W.3d 706, 714 (Tex.App.–Houston [1st Dist.] 2013, pet. ref'd) ; see State ex rel. Lykos v. Fine , 330 S.W.3d 904, 910 (Tex.Crim.App.2011) (orig. proceeding) (a statute is unconstitutional as applied requires a recourse to evidence, it cannot be properly raised by a pretrial motion to quash the charging instrument) that because a contention that ; Gillenwaters v. State , 205 S.W.3d 534, 536 n.4 (Tex.Crim.App.2006).3
A facial challenge is an attack on a statute itself as opposed to a particular application. Peraza v. State , 467 S.W.3d 508, 514 (Tex.Crim.App.2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1188, 194 L.Ed.2d 202 (2016). To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally. Rosseau , 396 S.W.3d at 558 (); see Salinas v. State , 464 S.W.3d 363, 367 (Tex.Crim.App.2015) ; Peraza , 467 S.W.3d at 514. Thus, in considering a facial challenge to a statute, we must determine whether there are potential constitutional applications. See Peraza , 467 S.W.3d at 515 ; see also Fine , 330 S.W.3d at 908 (). A facial challenge to a statute is the most difficult challenge to mount successfully. Salinas , 464 S.W.3d at 367.
Section 31.03(e)(4)(F) makes theft of certain metals a state jail felony when the theft might otherwise constitute a less serious offense when measured by the value of the metals. See Tex. Penal Code Ann. § 31.03(e)(4)(F). On appeal, the parties contest whether section 31.03(e)(4)(F) is unconstitutionally vague.4 Appellee does not argue that this section is vague in the sense that he cannot understand what it prohibits. He also does not explicitly raise a complaint about substantive due process. Rather, he contends that ...
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