Affirmed and Opinion filed February 6, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-00-01186-CR
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HERSHEL WEST BUTLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 806,457
O P I N I O N
Appellant, Hershel West Butler, was charged by indictment with bribery of a public servant; he entered a plea of not guilty. A jury convicted appellant and sentenced him to 10 years= imprisonment and a $10,000 fine. The jury recommended probation; thus, appellant was placed under the terms and conditions of community supervision for a term of 10 years. On appeal, appellant contends (1) the evidence is legally and factually insufficient to support his conviction; (2) Chapter 773 of the Texas Health and Safety Code violates the Texas Constitution and the United States Constitution; and (3) the trial court erred in denying appellant=s motion to quash. We affirm.
Appellant owned a personnel company that provided “services” to clients involved in motor vehicle accidents. Those services included “helping” the accident victims find a lawyer or chiropractor.[1] Advertisements were targeted and sent only to black or Hispanic persons who had recently been involved in a traffic accident. Appellant acquired the names of these potential clients from Sandra Holcomb, a data-entry operator employed by the Houston Fire Department (“HFD”).
As a data-entry operator, Holcomb was contacted by ambulance attendants each time they answered an emergency call for assistance. The attendants gave Holcomb accident victims= personal information, such as the type of accident involved, the patients= care and treatment, their names and addresses, and their billing information, which she entered into a database. Appellant paid Holcomb $300 every two weeks to receive this information on a daily basis. Holcomb delivered this information via a fax or hand delivery.
On one occasion, however, Holcomb inadvertently faxed patient information intended for appellant to the wrong fax number. The person receiving the fax notified HFD, and the fire department immediately commenced an internal investigation. A review of HFD=s computer records revealed that Holcomb had regularly accessed confidential patient information, apparently with no legitimate reason to do so. Investigators arrested Holcomb and she agreed to cooperate with their investigation. On June 7, 1997, while under police surveillance, Holcomb met appellant at a McDonald=s restaurant where they frequently exchanged information. Holcomb gave appellant confidential patient information and in return appellant paid her $300 cash. Because Section 773.091(b) of the Texas Health and Safety Code makes all records created by emergency medical services regarding the identity, evaluation, or treatment of a patient confidential and privileged, police arrested appellant for bribery on the theory that he paid Holcomb to violate her duties as a public servant. Tex. Health & Safety Code Ann. ' 773.091(b) (Vernon Supp. 2003).
Legal and Factual Sufficiency
In his first, second, and third issues, appellant argues the evidence is insufficient to support his conviction. Appellant contends the evidence is legally insufficient because (1) the State failed to prove the accident victims= lack of consent and (2) appellant=s business fits within an exception to Section 773.091 of the Texas Health and Safety Code. Appellant also argues the evidence is factually insufficient to support his conviction because he did not realize that Holcomb was violating her duty as a public servant.
In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a 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 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, “is the sole judge of the credibility of witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may believe or disbelieve any portion of the testimony of the witnesses. Sharp. v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient to sustain the conviction. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
A person commits bribery, “if he intentionally and knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another . . . any benefit as consideration for a violation of a duty imposed by law on a public servant . . .” Tex. Pen. Code Ann. ' 36.02(a)(3) (Vernon 1994). Under Section 773.091(b) of the Texas Health and Safety Code, Holcomb had a duty to keep the records of the identity, evaluation, or treatment of patients attended by emergency medical services personnel confidential and privileged. Tex. Health & Safety Code Ann. ' 773.091(b) (Vernon Supp. 2003). The State claims appellant paid Holcomb to breach this duty. Appellant contends, however, that a statutory exception to this duty exists when patient information is released with the consent of the patient. Tex. Health & Safety Code Ann. ' 773.092(a)(2) (Vernon Supp. 2003). Appellant seems to suggest that because the State offered no evidence showing a lack of consent, the evidence is necessarily insufficient to support his conviction.
It is well established that “[t]he prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant=s conduct does not fall within the exception.” Tex. Pen. Code Ann. ' 2.02(b) (Vernon 1994). However, this burden falls upon the State only for a penal code offense that is expressly identified by the phrase: “It is an exception to the application of . . . .” Tex. Pen. Code Ann. ' 2.02(a) (Vernon 1994). Here, the offense of bribery has only one statutory exception which states: “It is an exception to the application of Subdivisions (1), (2), and (3) of Subdivision (a) that the benefit is a political contribution as defined by Title 15, Election Code, or an expenditure made and reported in accordance with Chapter 305, Government Code.” Tex. Pen. Code Ann. ' 36.02(d) (Vernon 1994). The State specifically negated the existence of this exception in its indictment and thereafter offered proof in support of this element at appellant=s trial. This is all the State was required to do.
Further, the confidentiality of patient information required by Section 773.091 of the Health and Safety Code can in no way be classified as a penal offense in that it is (1) not found in the Texas Penal Code, and (2) the statute provides for no criminal penalties. Rather, a breach of confidentiality is punishable only by a civil injunction and damages. Tex. Health & Safety Code Ann. ' 773.094 (Vernon 1992). The State, therefore, was not required to negate the possibility that the affected patients had consented to the release of their patient information when proving up the elements of bribery. Under the circumstances presented here, appellant had the burden of establishing the patient=s consent. See City of Houston v. Jones, 679 S.W.2d 557, 559 (Tex. App.CHouston [14th Dist.] 1984, no writ) (holding that the burden of proof on a statutory exception of a non-penal statute rests on the party seeking to benefit from the exception). Accordingly, appellant=s first issue is overruled.
Appellant next argues the evidence is legally insufficient because his work involved the collection and payment of fees for emergency medical services rendered. Under section 773.092 of the Health and Safety Code, confidential information may be disclosed to individuals or corporations involved in the payment or collection of fees for emergency medical services rendered by emergency medical services personnel. Tex. Health & Safety Code Ann. ' 773.092(e)(7) (Vernon Supp. 2003). Appellant testified that his business paid the ambulance bill for each patient/client that wanted to be represented by a law firm. Because he fell under the exception in Section 773.092(e)(7), appellant contends Holcomb did not violate the Health and Safety Code when she provided him with patient information.
The difficulty with appellant=s argument is the jury did not believe it. Whether appellant was an individual “involved in the payment or collection of fees for emergency medical services” was a fact issue for the jury to decide. Appellant presented little information about exactly what his business did. According to appellant, he helped his clients recognize they might have a legal claim for injuries, and he helped them obtain both legal and medical services. Appellant did not explain how the extension of these “services” involved the payment or collection of fees for emergency medical personnel. He presented no payment sheets or collections from his clients or any receipts of payment from HFD. Moreover, appellant used an alias when contacting patients, avoided contacting Caucasian patients, paid for patient information in cash, never sought patient information through the Public Information Office of the Houston Fire Department, never met with Holcomb at her place of business, and when he exchanged cash for patient information, he normally rendezvoused with Holcomb at a McDonald=s restaurant. Not surprisingly, the jury rejected appellant=s claim. Viewing the evidence in a light most favorable to the verdict, we find the evidence was legally sufficient to support appellant=s verdict. Accordingly, appellant=s second issue is overruled.
In his third issue, appellant contends the evidence is factually insufficient. When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). The evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.). We consider the fact finder=s weighing of the evidence and can disagree with the fact finder=s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, we are not free to reweigh the evidence and set aside a verdict merely because a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must defer to jury findings and find the evidence factually insufficient “only where necessary to prevent manifest injustice.” Id.
Specifically, appellant argues the evidence is factually insufficient because although he paid Holcomb for the information, (1) he did not realize that Holcomb was a public servant or that the patient information was confidential; and (2) the State failed to show that he intentionally and knowingly paid Holcomb to violate the law.[2] Appellant=s argument lacks merit.
First, the State presented ample evidence establishing appellant=s guilt. Appellant=s conduct was highly irregular for one who believed he was engaged in a legitimate business. Although appellant testified he did not realize the information provided by Holcomb was privileged and confidential information, he admitted to knowingly paying a Houston Fire Department employee $600 a month in cash for patient information. Although he claims he did not know where Holcomb obtained the information, he was careful never to meet with her at the Houston Fire Department. Most transfers of information were conducted daily at a downtown McDonald=s restaurant. Appellant never withheld income or payroll taxes. As we have previously observed, appellant used a fictitious name when contacting patients. Moreover, Holcomb testified that appellant told her he only wanted the names of Hispanic and black patients because “they don=t say nothing; but the whites always ask questions, a lot of questions.”
Second, the jurors were free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. See Jones v. State, 900 S.W.2d 392, 399 (Tex. App.CSan Antonio 1995, pet. ref=d). Here, the jury disregarded appellant=s explanation for his actions. See Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.] 1991, no pet) (holding that the jury is entitled to accept the State=s version of the facts and reject appellant=s version or reject any of the witnesses= testimony). We find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, appellant=s third issue is overruled.
Constitutionality of Sections 773.091 and 773.092
In his fourth, fifth, sixth, and eighth issues, appellant contends the confidentiality requirement imposed upon patient records by Sections 773.091 and 773.092 of the Health and Safety Code is unconstitutional under both the state and federal constitutions.
When the constitutionality of a statute is at issue, we presume the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting the statute. Weyandt, 35 S.W.3d 144, 155 (Tex. App.CHouston [14th Dist.] 2000, no pet.). The burden rests on the moving party to establish its unconstitutionality. Id. Furthermore, we will uphold the statute if a reasonable construction of it can be determined which will render it constitutional and carry out the legislative intent. Id.
In his fourth and fifth issues, appellant claims that Sections 773.091 and 773.092 violate the Texas and United States Constitutions by infringing upon his right to free speech. Appellant testified that he used the information purchased from Holcomb to prepare patient advertisement letters. Moreover, he testified the State Bar of Texas had approved his solicitation letters. Because direct mail solicitation is a form of commercial speech, appellant contends the effect of Sections 773.091 and 773.092 was to infringe upon the free exercise of that right.
However, the propriety of appellant=s solicitation letter is not at issue, and we are at a loss to understand how statutory protections regarding the privacy of personal medical information can be deemed an infringement upon commercial speech. The gravamen of the offense here centers not on the contents of appellant=s solicitation letter, but the manner by which he procured the names of potential customers. “Neither the First Amendment nor Fourteenth Amendment mandates a right of access to information within the government=s control.” Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S. Ct. 2588, 2597, 57 L. Ed. 553 (1978); Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965) (First Amendment right to speak and publish does not carry with it the unrestrained right to gather information). Moreover, even if Sections 773.091 and 773.092 could, in some fashion, be considered a restriction upon free speech, we find no unconstitutional restriction.
The initial step in First Amendment analysis is to determine whether a statute is content‑neutral or content‑based. Rappa v. New Castle County, 18 F.3d 1043, 1053 (3rd Cir. 1994). Here, the statutes regulate the dissemination of private medical information. While this would, at first, seem to be a content-based restriction, regulation that prohibits speech by reference to its type, category, or characteristics (in essence, its content ) may become content‑neutral if the regulation is aimed only at curbing the secondary effects of the speech and not at suppression of a particular message. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). Here, the regulation is aimed only at curbing the secondary effects, i.e., violating the personal privacy concerns of accident victims. Thus, we find the statutes to be content-neutral.
When, as here, a statute is content‑neutral, it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information. Rappa, 18 F.3d at 1054. Moreover, commercial speech enjoys only a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). Thus, with regard to restrictions on commercial speech the state must merely show (1) a substantial government interest; (2) the regulation must advance that government interest; and (3) the regulation must be narrowly drawn to advance that interest. Cent. Hudson Gas & Elec. v. Pub. Serv. Comm=n., 447 U.S. 557, 564B65, 100 S. Ct. 2343, 2350B51, 65 L. Ed. 2d 341. (1980).
Protecting the confidentiality of private medical information serves a significant governmental interest. Without such protection, persons injured in automobile accidents might be reluctant to disclose important medical history vital to their health and treatment. The statutes also provide alternative channels for communication of the information, namely, by obtaining the consent of the injured persons. Further, the statues do not prevent appellant from learning the identities of accident victims from other sources, such as newspapers, television, or record services. See Tex. Health & Safety Code Ann. ' 773.091 & 773.092 (Vernon Supp. 2003). Nor does section 773.091 proscribe a time frame in which appellant may contact direct mail clients. See id. Furthermore, section 773.091 applies across the board to anyone accessing the information, not just to a certain class of persons. See id.
Accordingly, to the extent, if any, that the statutes infringe upon appellant=s right to free speech, we find they serve a substantial governmental interest and are narrowly tailored to serve that interest.
Appellant also alleges that section 773.091 of the Health and Safety Code is overbroad because it makes the same patient information confidential that section 550.065(a) of the Texas Transportation Code makes public record, i.e., the type of accident, the injury involved, and the patients= names and addresses.
We first observe that even under section 550.065(a) of the Transportation Code, accident information is classified as confidential. According to section 550.065(c)(4), such information can only be released to persons who provide the department or government entity with two or more of the following: (1) the date of the accident; (2) the location of the accident; or (3) the name of a person involved in the accident. Tex. Transp. Code Ann. ' 550.065(c)(4) (Vernon Supp. 2003). Thus, under the Transportation Code, appellant could not lawfully gain access to the information he purchased from Holcomb without the prerequisite knowledge specified by the statute.
We also note that under the Texas Open Records Act, public information is available to the public, unless that information is made confidential under another law. Tex. Gov=t Code Ann. '' 552.021, 552.022(a) (Vernon Supp. 2002); Holmes v. Morales, 924 S.W.2d 920, 922B23 (Tex. 1996). Here, of course, the information is expressly made confidential by both the Health and Safety Code and the Transportation Code, and thus appellant cannot access the information through the Texas Open Records Act. Tex. Gov=t Code Ann. '' 552.021, 552.022(a) (Vernon Supp. 2002); Holmes v. Morales, 924 S.W.2d 920, 922B23 (Tex. 1996).
Finally, appellant contends that section 773.091 is unconstitutionally vague. A statute that forbids or requires an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Cotton v. State, 686 S.W.2d 140, 141 (Tex. Crim. App. 1985). A statute is void for vagueness if it fails to give a person sufficient information to understand exactly what conduct is prohibited or it encourages arbitrary or discriminatory prosecution by the State. Weyandt v. State, 35 S.W.3d at 155. Either ground creates an unconstitutionally vague statute. Id.
A statute that contains undefined words or terms is not necessarily unconstitutional for vagueness. Id. The undefined words or terms are given their plain meaning unless the statute clearly indicates they were used in another sense. Flores v. State, 33 S.W.3d 907, 921 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Statutory words are read in context and construed according to the rules of grammar and common usage. Tex. Gov=t Code Ann. ' 311.011(a) (Vernon 1998). Words defined in dictionaries that have well-known meanings are not vague and indefinite. Flores, 33 S.W.3d at 921. A statute need not be mathematically precise; it must only give fair warning of the conduct prescribed and provide guidelines for law enforcement. Weyandt, 35 S.W.3d at 155.
Appellant argues the statute fails to define the terms “identity,” “presence,” and “information regarding the presence” found in section 771.091(g). Tex. Health & Safety Code Ann. ' 771.091(g) (Vernon Supp. 2003). However, these are not terms of art, and they should be afforded their meaning in common usage. Thus, while “information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services,”[3] is not protected, this language does not, as appellant suggests, conflict with the prohibition on disclosing the identity of a person receiving emergency medical services.
The commonly understood meaning of “presence” is “the fact or state of being present.” Webster=s II New Riverside Dictionary (1996). Thus, the term does not conflict with the requirement that the identity of a patient must remain confidential. See Tex. Health & Safety Code Ann. ' 773.091(b) (Vernon Supp. 2003). Accordingly, information regarding the simple fact that a person was injured, the nature of the injury, the person=s age, sex, occupation, and city of residency may be disclosed without necessarily revealing the identity of person. Tex. Health & Safety Code Ann. ' 773.091(g) (Vernon Supp. 2003); Webster=s II New Riverside Dictionary (1996). Because sections 773.091(b) and 773.091(g) are easily reconcilable, we find the provisions are not contradictory, nor do they render the statute void for vagueness.
Accordingly, appellant=s fourth, fifth, sixth, and eighth issues are overruled.
Motion to Quash
Appellant next alleges the trial court erred in denying his motion to quash the indictment. Appellant contends the indictment deprived him of sufficient notice of the charge against him because it failed to identify the legal duty imposed on Holcomb.
The original indictment charging appellant with bribery alleged several factual particulars about the offense. It stated, in relevant part, that appellant:
did . . . intentionally and knowingly offer and agree to confer a benefit, namely money, to Sandra Holcomb, a public servant employed by the City of Houston Fire Department, as consideration for Sandra Holcomb to release patient identity records created by emergency medical services personnel, in violation of a duty imposed by law on Sandra Holcomb, namely Section 773.091 of the Texas Health and Safety Code.
In a pretrial motion, appellant moved the court to quash the indictment because it failed to define “patient identity records” and the information received from Holcomb was a public record. The State subsequently abandoned this indictment and obtained a new indictment which recited the bare statutory elements. The indictment alleged that appellant:
did . . . intentionally and knowingly offer to confer upon and agree to confer upon Sandra Holcomb a benefit as consideration for a violation of a duty imposed by law upon a public servant, and said benefit was not a political contribution as defined by Title 15 of the Election Code or an expenditure made and reported in accordance with Chapter 305, Government Code.
Appellant filed another motion to quash, claiming the second indictment deprived him of his due process right to adequate notice of the charge against him because it failed to state what duty was imposed on Holcomb. At a subsequent hearing, appellant raised this issue and also presented evidence that section 773.091 of the Texas Health and Safety Code was unconstitutional. The trial court denied appellant=s motions.
Both the United States and Texas Constitutions require the State to give a defendant notice before trial of the nature and cause of the accusations against him. U.S. Const. amend. VI, ' AA; Tex. Const. art. I, ' 10. They further require that notice be given with sufficient clarity and detail to enable the defendant to anticipate the State=s evidence and prepare a proper defense to it. Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). In other words, everything should be in the indictment that is necessary to be proved. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989). The certainty of the allegations must enable the accused to plead the judgment that may be given upon the indictment in bar of any prosecution for the same offense. Tex. Code Crim. Proc. Ann. art. 21.04 (Vernon 1989). A motion to quash will be sustained if the facts sought are essential to giving notice. Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981). However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Id. Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
Here, the indictment tracked the language of the bribery statute. Moreover, the record amply demonstrates that appellant was well aware of the legal duty violated by Holcomb. First, the statute was set forth in the original indictment. See Grettenberg v. State, 790 S.W.2d 613, 614B65 (Tex. Crim. App. 1990) (holding defendant gained adequate notice from a former indictment). Second, appellant repeatedly argued before and during trial that (1) section 773.091 of the Texas Health and Safety Code was unconstitutional and (2) that certain defenses found in section 773.092 of the Texas Health and Safety Code authorized his conduct. Accordingly, the record indicates appellant had actual notice of the legal duty imposed upon Holcomb.[4]
Appellant=s seventh point of error is overruled, and the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed February 6, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant owned a half interest in a chiropractor clinic.
[2] The penal code defines Aintentionally@ and Aknowingly@ as follows:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly, or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Tex. Pen. Code Ann. ' 6.03(a) & (b) (Vernon 1994).
[3] Tex. Health & Safety Code Ann. ' 771.091(g) (Vernon Supp. 2003) (emphasis added).
[4] Appellant cites numerous cases in which the indictment was held insufficient to provide notice of the offense. See Castillo v. State, 689 S.W.2d 443, 449 (Tex. Crim. App. 1984) (defendant alleged to intentionally Astart a fire@ held insufficient to give notice of charge against him); Doyle v. State, 661 S.W.2d 726, 730 (Tex. Crim. App. 1983) (Athreaten to harm another@ held insufficient to give defendant notice of charge); Miller v. State, 647 S.W.2d 266, 267 (Tex. Crim. App. 1983) (holding indictment insufficient because it failed to specify how defendant Adamaged and destroyed@ property). None of these cases are pertinent here, however, because in each instance the indictment failed to allege an act or omission by the defendant. Here, the challenged portion of the indictment, i.e., the duty imposed on Holcomb is not descriptive of appellant=s conduct. The Court of Criminal Appeals has uniformly rejected claims in which the defendant alleges he was not provided adequate notice regarding some act unrelated to the defendant=s conduct. See Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986) (indictment charging defendant with murder of officer engaged in the lawful discharge of official duties was not required to include alleged acts of officer that constituted his action in discharge of those duties); Nethery v. State, 692 S.W.2d 686, 695 (Tex. Crim. App. 1980) (indictment charging defendant with murder of a peace officer was not required to include statutory definition of Apeace officer@).