NUMBER 13-02-00020-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NATIVIDAD VALENCIA A/K/A TIVIE VALENCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
DISSENTING OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Dissenting Opinion by Justice Hinojosa
The majority concludes that the evidence in this case is legally sufficient to support appellant’s conviction for bribery. Specifically, the majority holds that the evidence of appellant’s offer to vote for or recommend the appointment of two applicants for vacant constable positions is commensurate with an offer of a “benefit” under the bribery statute. Because I conclude the evidence is legally insufficient, I respectfully dissent.
A. Sufficiency of the Evidence
When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.–Corpus Christi 1997, pet. ref’d). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
1. The Bribery Statute
A person commits the offense of bribery if he intentionally or knowingly offers, confers, or agrees to confer on another any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant. Tex. Pen. Code Ann. § 36.02(a)(1) (Vernon 2003). “Benefit” means anything reasonably regarded as a pecuniary gain or pecuniary advantage. Id. § 36.01(3). It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason. Id. § 36.02(b).
2. Analysis
In this case, in order to prove appellant guilty of bribery as indicted, the State was required to show that Valencia (1) intentionally or knowingly (2) offered, conferred, or agreed to confer (3) a benefit (4) as consideration for Josaphat Lozano and Juan Rodriguez’s decision or exercise of discretion as public servants to hire or employ Rolando Mancilla and Ofelio Muniz, respectively.
a. Lack of a Benefit
In its opinion, the majority reasons that a single vote or recommendation equates to a benefit under the penal code. I disagree. As defined in the penal code, “benefit” means “anything reasonably regarded as pecuniary gain or pecuniary advantage . . . .” Id. § 36.01(3) (Vernon 2003). While I acquiesce in the fact that the legislature, by including the descriptive phrase “reasonably regarded as” in the definition of a benefit, intended the definition to be broader than mere “pecuniary gain or advantage,” the majority fails to explain just how a single vote or recommendation can be reasonably regarded as pecuniary in nature.
The majority emphasizes the fact that appellant was a member of the Cameron County Commissioners Court when he offered to support Lozano and Rodriguez for the vacant constable positions. Yet, a county commissioner cannot unilaterally appoint an individual to fill a vacancy in the constable’s office; rather it requires a majority of the commissioners court to accomplish the same. Thus, at most, appellant offered one of three votes necessary for the appointments of Lozano and Rodriguez to the positions of county constable. This begs the question of how a single vote or recommendation can be reasonably regarded as pecuniary in nature. The majority falls short in answering this question. In fact, the only evidence the majority finds to substantiate its conclusion that appellant’s vote or recommendation was a benefit as contemplated by the bribery statute is the testimony of Lozano that the county constable position was paid an annual salary of approximately $34,800. This evidence contemplates that appellant was offering a job to Lozano and Rodriguez as part of the bribe. See Kaisner v. State, 772 S.W.2d 528, 529 (Tex. App.–Beaumont 1989, pet. ref’d) (offering job of chief deputy sheriff to candidate for sheriff if he agreed to withdraw from runoff election). However, there is no evidence in the record that appellant was offering or ensuring Lozano and Rodriguez the county constable positions. It is undisputed that the only offer made was an offer to support Lozano and Rodriguez for the vacant constable positions. While under certain circumstances a vote or recommendation may be construed as a gain or advantage, the majority’s holding effectively eradicates the pecuniary requirement from the bribery statute.
To the contrary, offenses traditionally prosecuted under the bribery statute involve the exchange of a benefit which can be readily valued in terms of money. See United States v. Tunnell, 667 F.2d 1182, 1185-86 (5th Cir. 1982) (providing the services of a prostitute at no cost to the recipient); Bates v. State, 587 S.W.2d 121, 126 (Tex. Crim. App. 1979) (paying a district judge $59,000 to receive a probated sentence); Roseman v. State, 382 S.W.2d 261, 263 (Tex. Crim. App. 1964) (paying police officer $20 to persuade him not to arrest defendant in the future for violating the gaming and liquor laws); Smith v. State, 959 S.W.2d 1, 21 (Tex. App.–Waco 1997, pet. ref’d) (providing round-trip plane tickets, hotel accommodations, meals, ground transportation, and theater tickets at no cost to defendant’s wife); Lima v. State, 788 S.W.2d 629, 630 (Tex. App.–Texarkana 1990, pet. ref’d) (conferring a benefit of nine yards of concrete on city inspector in violation of inspector’s duty imposed by law); Tweedy v. State, 722 S.W.2d 30, 31 (Tex. App.–Dallas 1986, pet. ref’d) (offering $200 to city construction inspector to allow defendant and his work crew to dig trenches, lay pipe, and backfill the trenches without the inspector examining the work); see also Black’s Law Dictionary 1131 (6th ed. 1990) (defining “pecuniary” in part as something which can be valued in money). Even the lone case cited by the majority in its analysis conforms with this line of cases. See Kaisner, 772 S.W.2d at 529 (offering job of chief deputy sheriff to candidate for sheriff if he agreed to withdraw from runoff election).
In light of the established case law, I conclude that appellant’s vote or recommendation is not reasonably regarded as a pecuniary gain or pecuniary advantage as contemplated by the bribery statute. See Tex. Pen. Code Ann. § 36.01(3) (Vernon 2003). Thus, I would hold there is no evidence that appellant had a “benefit” to offer as consideration for the alleged bribe. Accordingly, I would hold that a rational trier of facts could not have found the essential elements of the offense of bribery beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
b. Lack of Discretion to Hire or Employ
The State was also required to show that appellant made the offer of a benefit to Lozano and Rodriguez as consideration for their decision or exercise of discretion as public servants to hire or employ Rolando Mancilla and Ofelio Muniz, respectively.
The “exercise of discretion” contemplated by the statute involves the discretion one exercises in performing his duties as a public servant. In the instant case, however, the public servant in question, the county constable, did not have an unfettered right to hire or employ deputy constables. An elected constable who desires to appoint a deputy must apply in writing to the commissioners court of the county and show that the appointment is necessary to properly handle the business of the constable’s office originating in the precinct. Tex. Loc. Gov’t Code Ann. § 86.011(a) (Vernon 1999). The county commissioners court has the authority to approve and confirm the appointment, if it finds the appointment of the deputy necessary. Id. In fact, it is an offense for an elected constable to deputize someone without first obtaining approval from the commissioners court. Tex. Loc. Gov’t Code Ann. § 86.011(d) (Vernon 1999). Thus, at most, a constable has the discretion to nominate or appoint a candidate for a deputy constable position and the candidate is hired only if the commissioners court gives its consent. As a county commissioner, appellant knew this procedure.
Accordingly, I conclude there is no evidence that hiring or employing Rolando Mancilla or Ofelio Muniz was a “decision . . . or other exercise of discretion” of Lozano and Rodriguez under the bribery statute. See Tex. Pen. Code Ann. § 36.02(a)(1) (Vernon 2003).
c. Bilateral Agreement
Appellant also relies on the case of McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985). In that case, the defendant was convicted of bribery pursuant to an indictment that alleged he conferred a benefit as consideration for the recipient’s vote as a juror in a judicial proceeding. Id. at 136. After construing the language of the bribery statute, the court of criminal appeals stated “we construe the offense, particularly where it alleges the accused intentionally or knowingly conferred ‘a benefit as consideration for’ . . . as requiring a bilateral arrangement – in effect an illegal contract to exchange a benefit as consideration for the performance of an official function.” Id. Concluding there was no evidence of a bilateral agreement between the defendant and the recipient of the benefit, the court reversed the conviction and ordered a judgment of acquittal. Id. at 139. Likewise, in the instant case, there could be no agreement to hire or employ Rolando Mancilla or Ofelio Muniz because Lozano and Rodriguez did not have the absolute discretion to do so.
B. Conclusion
Viewing the evidence presented at trial in the proper light, I conclude that a rational trier of fact could not have found the essential elements of the offense of bribery beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, I would hold that the evidence is legally insufficient to sustain appellant’s conviction for two counts of bribery.
I would sustain appellant’s first issue, reverse the trial court’s judgment, and render a judgment of acquittal on the two counts alleged in the indictment. Therefore, I respectfully dissent.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Dissenting Opinion delivered and filed this the
24th day of June, 2004.