State v. Empey

• Decision Date: 04 August 2016
• Docket Number: NO. 02-14-00407-CR,02-14-00407-CR
• Citation: State v. Empey, 502 S.W.3d 186 (Tex. App. 2016)
• Parties: The State of Texas, State v. Frank Empey, Appellee
• Court: Texas Court of Appeals

502 S.W.3d 186

The State of Texas, State

v.Frank Empey, Appellee

NO. 02-14-00407-CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: August 4, 2016

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.

OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

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 appelleeFrank 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.

Background Facts

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."SeeTex. Penal Code Ann. § 31.03(e)(4)(F)(West Supp. 2015).

Appellee filed a pretrial motion to dismiss the indictment.He argued that the indictment was flawed because it was based on section 31.03(e)(4)(F), which he contended to be overbroad and vague because it allows for selective prosecution.Specifically, appellee argued,

[Section 31.03(e)(4)(F) ] makes it a state jail felony to steal any amount of aluminum or bronze or copper 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 casethe 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 statuteas it is being applied to him is void for vagueness ....The statuteas 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.]

The State responded to appellee's motion to dismiss.In the response, the State argued that the trial court should deny the motion because section 31.03(e)(4)(F) clearly defined appellee's prohibited behavior and was therefore not vague.Also, the State contended that the statute was not infirm merely because it allowed appellee's theft to be prosecuted under different parts of section 31.03 that related either to the value of the allegedly stolen materials or the materials' substance.The State argued that its ability to exercise discretion in charging appellee with a state jail felony under section 31.03(e)(4)(F) rather than with a lesser theft offense based on the value of the items at issue did not render section 31.03(e)(4)(F) unconstitutional.¹In part, the State asserted,

The choice of what statute to apply falls to the discretion of the prosecutor.[Appellee] could be charged with a Class C Misdemeanor under [a value provision of section 31.03 ], or with a State Jail Felony under [section]31.03(e)(4)(F) for theft of aluminum valued less than $20,000.Both statutes clearly explain the prohibited behavior in a way that gives fair notice to a person of ordinary intelligence as to what conduct [the person] may not partake in.This fair notice allows the statutes to stand up to constitutional muster.As the Supreme Court makes clear, allowing discretion in choosing how to charge a defendant is not unconstitutional if the statutes individually are constitutional.In this case, because the statutes are not vague in the conduct they prohibit, they are both valid aspects of the criminal penal code in Texas[,] and allowing for prosecutorial discretion in charging ... in no way renders the statutes void for vagueness.

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:

Findings of Fact:

[Appellee] was charged and indicted under Texas [Penal Code Section]31.03(e)(4)(F).That Statute makes theft of any amount of aluminum, copper, brass[,] or bronze a State Jail Felony.The State alleges that on April 24, 2013, a theft was reported from the scrap yard of Bridgeport Iron and Metal.There was a surveillance video showing [appellee], an employee of the company, gathering up four aluminum baseball bats, three cast iron skillets, and a heavy-duty chain out of a company vehicle and into his personal vehicle, and leaving the property without paying for them. ...[Appellee], through his attorney, filed a Motion to Dismiss arguing that the Statute is overly broad and void for vagueness, as it allows the police too much discretion in charging someone with either a Class C Misdemeanor or a State Jail Felony.The State filed its opposition to the Motion.Under the State's theory, the theft of a copper 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 Statuteis 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.²The State brought this appeal from the trial court's order dismissing the indictment against appellee.

The Constitutionality of Section31.03(e)(4)(F)

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 Worth2014, pet. ref'd)(mem. op.).

When a defendant challenges the constitutionality of a statute, "we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily.The burden normally rests upon the person challenging the statute to establish its unconstitutionality."Ex parte Lo , 424 S.W.3d 10, 15(Tex.Crim.App.2013)(footnote omitted);seeState 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);seeState ex rel. Lykos v. Fine , 330 S.W.3d 904, 910(Tex.Crim.App.2011)(orig. proceeding)(stating that because a contention that 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);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("Because appellee has failed to show that it is unconstitutional in every possible respect, the statute is not facially unconstitutional.");seeSalinas 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.SeePeraza , 467 S.W.3d at 515;see alsoFine , 330 S.W.3d at 908("If Mr. Green is mounting a facial challenge to the Texas death-penalty scheme, then he must prove that the system can never be constitutionally applied to any Texas defendant charged with capital murder, no matter what the individual facts and circumstances of the particular case.").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.SeeTex. Penal Code Ann. § 31.03(e)(4)(F).On appeal, the parties contest whether section 31.03(e)(4)(F) is unconstitutionally vague.⁴Appellee 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 ...