Talamantez v. State, 171-91

Citation829 S.W.2d 174
Decision Date25 March 1992
Docket NumberNo. 171-91,171-91
PartiesBenito TALAMANTEZ, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Page 174

829 S.W.2d 174
Benito TALAMANTEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 171-91.
Court of Criminal Appeals of Texas,
En Banc.
March 25, 1992.

Page 176

Larry Vick, Houston, Roy E. Greenwood, Austin, on appeal only, for appellant.

Alger H. Kendall, Jr., Dist. Atty., Karnes City, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant, a County Commissioner from Wilson County, was convicted of the offense of official misconduct of the grade of third degree felony under V.T.C.A. Penal Code, § 39.01(a)(2), (c)(4). His punishment was assessed at four years confinement, probated for six years, and a fine of $5,000.00. In an unpublished opinion, the San Antonio Court of Appeals reversed, holding that the trial court erred in failing to grant appellant's motion to quash the indictment on the grounds of duplicity in each of two paragraphs of the first count. We granted the State's petition for discretionary review in order to examine this issue.

I.

A.

Each paragraph of the first count of the indictment alleges appellant misapplied a thing of value belonging to Wilson County, "to wit: use of county equipment, bulldozer and maintainer, of the value of $750.00 or more but less than $20,000.00 by using the equipment to clear brush, shape a creek, and tank dam, on property belonging to members of [appellant's] family[.] " Each paragraph alleges this misapplication occurred "on or about and between the dates of October 31, 1986 and January 31, 1988," a fifteen month stretch of time. The only difference between the two paragraphs is that the first alleges appellant acted "with intent to obtain a benefit for himself[,]" while the second alleges an "intent to harm another[.] " 1 Appellant argued to the court of appeals that this count is duplicitous in that it "alleged several transactions over the fifteenth month period, thereby joining a series of distinct offenses in each paragraph." Slip op. at 2. Although multiple instances of theft may be joined in a single offense, and value aggregated accordingly to reach a felony amount, under V.T.C.A. Penal Code, § 31.09, no comparable provision appears in Chapter 39 of the Penal Code authorizing aggregation of repeated commission of official misconduct to obtain a felony conviction.

The court of appeals agreed. The court began its analysis by pointing out that former V.T.C.A. Penal Code § 3.01, prior to amendment in 1987, controls in this cause. Accordingly, only repeated commission of property offenses in Title 7 of the Penal

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Code could be joined in a single indictment. See Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985); Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988). Because official misconduct does not appear in Title 7 of the Penal Code, repeated commission of that offense could not be alleged in a single indictment. Moreover, as appellant avers, to allow repeated commission of official misconduct to be alleged as one offense would in effect provide for the aggregation of offenses in Chapter 39 of the Penal Code where the Code itself only expressly provides for aggregation of Chapter 31 theft offenses. Thus, if each paragraph of the first count of the instant indictment does in fact allege more than one commission of the offense of official misconduct, then each paragraph does suffer the defect of duplicity, and the trial court erred in failing to grant the motion to quash.

The court of appeals then turned to the question whether each paragraph does in fact allege more than one commission of official misconduct. Concluding that they do, the court of appeals analogized to this Court's opinion in Whitehead v. State, 745 S.W.2d 374 (Tex.Cr.App.1988). There we implicitly held "that the timber at issue [of the value of more than $10,000.00] was not a unit of property but instead, several units of property" the theft of which must be pled under the aggregation provisions in § 31.09 to obtain a felony conviction. Slip op. at 5. Here the court of appeals drew "a similar conclusion[,]" viz: "The indictment, alleging misapplication of county equipment: bulldozer and maintainer, by using the equipment to clear brush, shape a creek and tank dam, alleges several misapplications rather than one." Id. However, because official misconduct cannot be aggregated as can theft, it was not permissible to allege multiple misapplications in the same way that it was held permissible to allege multiple thefts in Whitehead.

Having concluded it was error not to quash the first count of the indictment, the court of appeals held the error was harmful because, given the nature of the evidence at trial going to the value of the use of the equipment, the jury might have relied on more than one instance of official misconduct to arrive at a felony amount. 2 Our grant of discretionary review does not reach this question, and in any event our ultimate disposition today obviates a harm analysis.

Justice Biery filed a separate, concurring opinion. He agreed that both paragraphs in the first count of the indictment were duplicitous. He specified, however, that he did not believe the paragraphs were defective in alleging that more than one "task" was conducted (i.e., "clear brush, shape a creek, and tank dam"), or that the activity took place over more than one twenty-four hour period. Rather, he believed the duplicity occurred only inasmuch as the paragraphs allege that more than one piece of equipment, and thus more than one "thing of value," was allegedly misapplied.

B.

The State now cites a number of cases involving offenses ranging from bribery to castration for the proposition that because appellant was operating under a single and continuing impulse, viz: to improve realty belonging to his children at county expense, it was proper to allege multiple "things" put to multiple "tasks" over a number of months. 3 Each of these cases is analytically distinguishable. For instance,

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the State cites Cody v. State, 31 Tex.Cr.R. 183, 20 S.W. 398 (1892). This is the case that announced an exception to the general rule of the common law that "restricted the scope of theft to a single victim and a single time and place; if more than one victim or more than one time was involved, more than one theft was committed." S. Searcy & J. Patterson, Practice Commentary, 3 Vernon's Texas Codes Annotated--Penal Code 571 (1974). The announced exception was that "when several articles or things in bulk are taken by continuous acts, there being one purpose, one impulse, the act is one, without regard to time." 20 S.W. at 398. We think the examples the Cody court subsequently invokes to illustrate this exception, however, would fairly tend to make it inapplicable to the misappropriation at hand. The gist of these examples is that individual asportations of property, as in repeated trips to load a getaway wagon with stolen goods, constitute but a single act of larceny, not as many larcenies as it takes trips to fill the wagon. The Cody exception has been held not to apply where repeated fraudulent Medicaid claims filed over the course of a year added up to felony theft, although no particular claim exceeded the misdemeanor amount. Turner v. State, 636 S.W.2d 189 (Tex.Cr.App.1982) (Opinion on State's motion for rehearing). 4 While it might be said that a single "purpose" ran through all these transactions, viz: the intent to defraud the insurance company, the court nevertheless held the amounts could not be aggregated absent pleading and proof of a single "offense" under the specific theft-aggregation statute, § 31.09. Id.

In Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979), cited by the State, the indictment does not allege multiple instances of bribery, but simply various manners and means by which a single instance of bribery may have been committed. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974), also cited by the State, stands for the proposition that where a number of persons jointly offer money or some other consideration to an individual in exchange for an act that benefits each offeror in some discrete way, and the combined offer is accepted, there is still only one offer and one acceptance, and hence only one instance of bribery. See also Goldman v. State, 130 Tex.Cr.R. 471, 95 S.W.2d 423 (1936) (Opinion on original submission). These cases do not involve extended conduct, as we have in this cause.

Two cases cited by the State do involve extended conduct. One is also a bribery case, McClelland v. State, 390 S.W.2d 777 (Tex.Cr.App.1965). McClelland was a probate judge in Houston. An elaborate scheme was set up whereby McClelland appointed one of five particular persons to be the estate appraiser in a majority of cases that came before him. In exchange for this preferential treatment, these five individuals set up a dummy corporation, opened a bank account in the name of the corporation, and authorized McClelland's secretary to sign checks on the account. Each of the five appraisers then deposited various sums of money over time into the account, and McClelland would draw against the account from time to time for various personal expenses. Because the monies were mingled, and withdrawn in increments from the account, it was difficult to identify a particular moment in time when it could be said that an offense occurred. "The money, of course, lost its identity or common source when it was deposited so that it would have been impossible to determine how much of each of the five men's deposits went to appellant at a given time." Id., at 780. Perhaps because the offense would otherwise have been impossible to pinpoint, the Court concluded that "we are dealing with one offense involving many transactions." On this basis the Court held that the State need not elect which transaction it would rely on to convict.

The other extended-offense case the State relies on...

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