COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00176-CR
ROGER LIVERMAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0136-D
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Roger Liverman appeals his conviction for securing execution of
a document by deception involving a pecuniary interest of $20,000 or more but
less than $100,000. See Tex. Penal Code Ann. § 32.46(a)(1), (b)(5) (West Supp.
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See Tex. R. App. P. 47.4.
2014). In two issues, Liverman argues that the evidence is insufficient to support
his conviction and that his due process rights were violated. We will reverse the
trial court’s judgment and render a judgment of acquittal.2
II. BACKGROUND
On July 22, 2008, Liverman filed a mechanic’s lien affidavit entitled “Claim
of Lien” in the Denton County Clerk’s Office averring that he had performed
$45,000 worth of “labor and/or materials” on a home owned by complainant
Katheryn Payne. Because of this filing, the State charged Liverman with
securing execution of a document by deception. See id. § 32.46. Relevant to
this appeal, the indictment alleged that Liverman had caused “Cynthia Mitchell to
sign or execute a document affecting the property or service of [Payne.]” The
indictment further alleged that the document Liverman had caused Mitchell to
“sign or execute” was the affidavit he filed on July 22, 2008.
At a bench trial, Mitchell, the County Clerk for Denton County, testified that
her duties as the county clerk included the filing and recording of mechanic’s lien
affidavits. According to Mitchell, if someone brought a document that met “the
recording requirements” of such an affidavit, either she or one of her deputies
would take “the document, enter[] a certain amount of information into the
computer system, take[] payment for [the filing of the document], and record[] the
document.”
2
This cause was assigned for writing to the author on July 3, 2014.
2
After hearing further testimony not pertinent to this opinion, the trial court
found Liverman guilty of securing execution of a document by deception. See
Tex. R. App. P. 47.1, 47.4. Liverman then pleaded true to the State’s
enhancement paragraph, and the trial court sentenced him to ten years’
incarceration and a $5,000 fine. The trial court then suspended Liverman’s
sentence and placed him on community supervision for ten years. After the trial
court entered judgment accordingly, this appeal followed.
III. DISCUSSION
In his first issue, Liverman argues that the evidence is insufficient to
support his conviction for securing the execution of a document by deception
because the State failed to provide any evidence to demonstrate that the county
clerk “signed or executed” the mechanic’s lien affidavit. Liverman’s argument is
that the actions by the court clerk of filing and recording the affidavit are neither
the signing nor the executing of a document and that, thus, the State failed to
provide evidence of this element of the charged offense.
The State counters that when the court clerk affixed her signature to the
affidavit’s court-created cover sheet attesting that the affidavit had been filed and
recorded in the “Official Records of Denton County, Texas,” and when the court
clerk then filed and recorded the affidavit, she put the mechanic’s lien affidavit
into its final legal form, and thus under the clear terms of the statute, it introduced
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sufficient evidence to satisfy this element of the offense. We agree with
Liverman.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). If we conclude that the evidence is insufficient under this
standard, we must reverse the judgment and render a judgment of acquittal. See
Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).
In this case, the State charged Liverman with securing the execution of a
document by deception under Texas Penal Code section 32.46(a)(1). See Tex.
Pen. Code Ann. § 32.46(a)(1). Section 32.46(a)(1) states that “[a] person
commits an offense if, with intent to defraud or harm any person, he, by
deception: (1) causes another to sign or execute any document affecting
property or service or the pecuniary interest of any person.” Id. (emphasis
added).
When a statute is unambiguous, we are required to give effect to the plain
meaning of the words unless doing so would lead to absurd results. See Boykin
v. State, 818 S.W.2d 782, 785–86 n.4 (Tex. Crim. App. 1991); Uribe v. State, 7
S.W.3d 294, 296 (Tex. App.—Austin 1999, pet. ref’d). We presume that the
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legislature used every word and phrase in a statute for a purpose. See Uribe, 7
S.W.3d at 296.
A corollary to the presumption that every statutory word and phrase used
has a legislative purpose is that when the legislature uses certain language in
one part of the statute and different language in another, we presume different
meanings were intended. See Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim.
App. 1977) (“Every word of a statute is presumed to have been used for a
purpose, and a cardinal rule of statutory construction requires that each
sentence, clause, phrase and word be given effect if reasonably possible.”); see
also Sosa v. Alvarez–Machain, 542 U.S. 692, 711 n.9, 124 S. Ct. 2739, 2754 n.9
(2004) (reasoning that different words used in the same, or a similar, statute are
assigned different meanings whenever possible); DeWitt v. Harris County, 904
S.W.2d 650, 653 (Tex. 1995) (“DeWitt’s argument is founded on the familiar
canon of construction that ‘when the legislature uses certain language in one part
of the statute and different language in another, the court assumes different
meanings were intended.’”) (quoting 2A N. Singer, Statutes and Statutory
Construction § 46:06 (5th ed. 1992)).
Here, this court needs to look no further than two of the subsections of
section 32.46 to ascertain that the conduct of the court clerk filing and recording
the mechanic’s lien affidavit in this case was not the signing or executing of a
document as contemplated by subsection 32.46(a)(1). In subsection 32.46(a)(1),
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the focus of the prohibited conduct is causing one to “sign or execute” a
document, but the focus of the prohibited conduct in subsection 32.46(a)(2) is
causing a public servant to “file or record” a fraudulent document. Tex. Penal
Code Ann. § 32.46(a). If, as the State argues in this case, we were to interpret
subsection 32.46(a)(1)’s provision of “sign or execute” to include “filing” and
“recording,” then we would violate the presumption that different meanings were
intended by the legislature when it used “sign or execute” in subsection
32.46(a)(1) and “file or record” in subsection 32.46(a)(2). DeWitt, 904 S.W.2d at
653.
In oral arguments and in its brief, the State used the terms “filing and
recording” and “sign or execute” interchangeably. The legislature, however, did
not. See Tex. Penal Code Ann. § 32.46(a). Because the legislature chose to
use language differentiating “sign or execute” from “file or record” within the
same statue, we hold that the plain meaning of the words “sign or execute” in
subsection 32.46(a)(1) does not include the action of a court clerk filing and
recording a document. Although the State presented evidence that the county
clerk in this case filed and recorded the affidavit in question, it provided no
evidence that the county clerk otherwise signed or executed it as contemplated
by Texas Penal Code section 32.46(a)(1). Id.
Furthermore, to the extent that the State now argues on appeal that there
exists sufficient evidence that the document was “sign[ed] or execute[d]” because
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the county clerk affixed her signature to the affidavit’s court-created cover sheet
attesting that the affidavit had been filed and recorded, we conclude that the
State’s argument is misplaced. See id. The indictment charged Liverman with
causing the county clerk to sign or execute his mechanic’s lien affidavit, which is
attached to the indictment and does not include the court-created cover sheet.
Thus, the indictment did not charge Liverman with having caused the court clerk
to sign or execute the court-created cover sheet; therefore, the signed cover
sheet is not proof of the alleged charge. See Byrd v. State, 336 S.W.3d 242, 247
(Tex. Crim. App. 2011) (“A variance of this type is actually a failure of proof
because the indictment sets out one distinct offense, but the proof shows an
entirely different offense.”).
The State failed to provide any evidence from which a rational trier of fact
could have found the essential element that Liverman caused the court clerk to
“sign or execute” Liverman’s mechanic’s lien affidavit, and we therefore sustain
his first issue. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393
S.W.3d at 768.
Because we sustain Liverman’s first issue, we need not address his
second issue. See Tex. R. App. P. 47.1. Furthermore, because we hold that the
evidence is insufficient to support an essential element of Liverman’s conviction,
we must render a judgment of acquittal. See Tibbs, 457 U.S. at 41, 102 S. Ct. at
2218.
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IV. CONCLUSION
Having sustained Liverman’s first issue and having not addressed his
second issue, we reverse the trial court’s judgment and render a judgment of
acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19,
24–25, 98 S. Ct. 2151, 2154–55 (1978).
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
PUBLISH
DELIVERED: October 9, 2014
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