PD-1595-14
COURT OF CRIMINAL APPEALS
April 24, 2015 AUSTIN, TEXAS
Transmitted 4/24/2015 4:10:48 PM
Accepted 4/24/2015 4:24:05 PM
ABEL ACOSTA
Nos. PD-1595-14 and PD-1596-14 CLERK
___________________________________________________
In the Court of Criminal Appeals of Texas
___________________________________________________
Roger Liverman and Aaron Liverman
Appellants / Respondents
v.
The State of Texas
Appellee / Petitioner
___________________________________________________
On State’s Petition for Discretionary Review
Court of Appeals of Texas, Second District
Case No. No. 02-13-00176-CR
362nd Judicial District Court, Denton County
Cause No. F-2012-0136-D and F-2012-0137-D
___________________________________________________
Appellant’s Brief on the Merits
___________________________________________________
Matthew J. Kita
Texas Bar No. 24050883
P.O. Box 5119
Dallas, Texas 75208
(214) 699-1863 (phone)
(214) 347-7221 (facsimile)
matt@mattkita.com
Counsel For Appellants
Identity of Parties and Counsel
Appellants/Respondents: Roger Liverman and Aaron Liverman
Appellate Counsel: Matthew J. Kita
P.O. Box 5119
Dallas, Texas 75208
Trial Counsel: Lea Ann Breading
121 West Hickory Street, Suite 133
Denton, Texas 76209
Jerry Cobb
P.O. Box 1399
Denton, Texas 76202
Appellee/Petitioner: The State of Texas
Appellate Counsel: Lara Tomlin
Denton County District Attorney’s Office
1450 East McKinney Avenue
Denton, Texas 76209
Trial Counsel: Rick Daniel
Lindsey Sheguit
Denton County District Attorney’s Office
1450 East McKinney Avenue
Denton, Texas 76209
-i-
Table of Contents
Identity of Parties and Counsel ................................................................................. i
Index of Authorities ................................................................................................ iii
Restatement of Facts ................................................................................................ 1
Summary of the Argument ....................................................................................... 4
Argument ................................................................................................................. 5
I.
The court of appeals correctly concluded that the State’s evidence was
legally insufficient to support Appellants’ convictions. ................................. 5
A.
The State offered no evidence to support its burden to prove that the
county clerk “executed” Appellants’ mechanics-lien affidavits. ......... 7
1.
The county clerk’s testimony at trial reflects that she does not
“execute” documents, under the plain meaning of the word. ... 7
2.
As a matter of law, a “lien” is not something that a county clerk
can “execute.” .......................................................................... 9
B.
The court of appeals’ interpretation is consistent with legislative
history. ............................................................................................... 12
1.
The Legislature’s addition of the word “execute” to section
32.46(a)(1) in 1973 is irrelevant. ............................................... 12
2.
Subsections (a)(1) and (a)(2) were passed for entirely different
purposes and therefore no “overlap” is permitted. ................. 13
C.
This Court places primary emphasis on the “statutory verb” when
determining the criminal act at issue.................................................. 18
II.
The State’s incorrectly suggests that the court of appeals’ opinion has
decriminalized the “fraudulent use of liens.” .............................................. 22
Conclusion and Prayer ........................................................................................... 27
- ii -
Index of Authorities
Cases
Avery v. State,
359 S.W.3d 230 (Tex. Crim. App. 2012) ...................................................... 14, 15
Azeez v. State,
248 S.W.3d 182 (Tex. Crim. App. 2008) .......................................................... 26
Byrd v. State,
336 S.W.3d 242 (Tex. Crim. App. 2011) ........................................................... 21
Cheney v. State,
755 S.W.2d 123 (Tex. Crim. App. 1988) ........................................................... 25
Cont’l Radio Co. v. Cont’l Bank & Trust Co.,
369 S.W.2d 359 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.) ............. 11, 12
Ex parte Roemer,
215 S.W.3d 887 (Tex. Crim. App. 2007) ........................................................... 24
Ex parte Smith,
185 S.W.3d 887 (Tex. Crim. App.2006)............................................................ 26
First Nat’l Bank in Dallas v. Whirlpool Corp.,
517 S.W.2d 262 (Tex. 1974) .............................................................................. 12
Huffman v. State,
267 S.W.3d 902 (Tex. Crim. App. 2008) .......................................................... 19
Jefferson v. State,
189 S.W.3d 305 (Tex. Crim. App. 2006) ........................................................... 19
McLarty v. State,
302 S.W.2d 420 (Tex. Crim. App. 1957) ........................................................... 13
Mills v. State,
722 S.W.2d 411 (Tex. Crim. App. 1986) ........................................................... 25
- iii -
Moore v. Carey Bros. Oil Co.,
269 S.W. 75 (Tex. 1925) .................................................................................... 11
Ngo v. State.
175 S.W.3d 738 (Tex. Crim. App. 2005) ........................................................... 19
Purdin v. Jenkins,
337 S.W.2d 418 (Tex. Civ. App.—Dallas 1960, no writ) ................................... 11
State v. Wiesman,
269 S.W.3d 769 (Tex. App.—Austin 2008, no pet.) ................................... 20, 21
Strang v. Pray,
89 Tex. 525, 35 S.W. 1054 (1896). ................................................................ 11, 12
Tex. Wood Mill Cabinets, Inc. v. Butter,
117 S.W.3d 98 (Tex. App.—Tyler 2003, no pet.) ............................................. 10
United States v. Gipson,
553 F.2d 453 (5th Cir. 1977) .............................................................................. 19
Statutes
Tex. Code Crim. Proc. art. 4.05 ............................................................................. 26
Tex. Gov’t Code § 311.026 .................................................................................... 25
Tex. Gov’t Code § 311.011 ....................................................................................... 7
Tex. Health & Safety Code § 481.129 .................................................................... 14
Tex. Penal Code § 32.46 ..................................................................................passim
Tex. Penal Code § 32.49 ........................................................................................ 23
Tex. Prop. Code § 53.051 ......................................................................................... 9
Tex. Prop. Code § 53.052......................................................................................... 9
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Tex. Prop. Code § 53.054 ......................................................................................... 9
Tex. Prop. Code § 53.056 ......................................................................................... 9
Tex. Prop. Code § 53.254 ....................................................................................... 10
Other Authorities
53 Tex. Jur.2d, Statutes § 186 ................................................................................ 25
Black’s Law Dictionary (9th ed. 2009)..................................................................... 7
Constitutional Provisions
U.S. Const. art. I, § 9, cl.3 ...................................................................................... 24
Tex. Const. art I, § 16............................................................................................. 24
Tex. Const. art. 16, § 37 ......................................................................................... 11
-v-
Restatement of Facts
This appeal arises out of a business dispute between Appellants Roger and
Aaron Liverman and Roger’s daughter/Aaron’s sister, Complainant Katheryn
Hall.1 In January 2007, Hall and her then-husband purchased a house in Krum,
Texas.2 After purchasing the home, Hall had the house “completely gutted” and
began to remodel it.3
At the time, Hall owned a ceramic-tile-installation company called K.A.M.P.
Tile, Incorporated.4 In fall 2007, she hired Roger and Aaron to work for her
company,5 and offered to let them live on the property in Krum, Texas.6 Roger’s
wife Mary (Hall’s mother) initially stayed in a camper-trailer on the property, and
then moved into the house after the remodel was completed.7
1
The indictment identified Complainant as Katheryn Payne. C.R. 5–7. At trial, Complainant
testified that she changed her name to Katheryn Hall. 3 R.R. 25:14–18.
2
3 R.R. 29:1–14.
3
3 R.R. 29:22–30:10.
4
3 R.R. 28:21–24.
5
3 R.R. 34:23–35:13.
6
3 R.R. 36:3–17.
7
3 R.R. 37:21–38:15.
-1-
According to Hall’s testimony at trial, the remodel was about 65% complete
before she hired Roger and Aaron.8 With regard to the completion of the
remodeling, Hall admitted that Roger and Aaron assisted with the installation of
the HVAC system,9 performed tape-and-bed work,10 painted the kitchen and
bathroom,11 installed French doors and light fixtures,12 put a roof on the chicken
coop,13 and installed appliances.14 Although Hall paid Roger and Aaron for their
work for K.A.M.P. Tile, she admitted that she did not pay them for any of their
above-referenced work on the remodel.15
Hall further alleged that Roger eventually asked if he and Aaron could share
equally in K.A.M.P. Tile’s profits.16 Believing that Roger and Aaron were “trying
to take over my company,”17 Hall fired both of them (as well as her mother) in June
8
3 R.R. 49:18–19.
9
3 R.R. 51:13–16.
10
3 R.R. 54:23–55:3.
11
3 R.R. 55:14–16.
12
3 R.R. 55:8–14; 57:16–22.
13
3 R.R 59:19–60:2.
14
3 R.R 69:25–70:24.
15
3 R.R. 71:19–22.
16
3 R.R. 41:7–9.
17
3 R.R. 40:19–20.
-2-
2008.18 The following month, Hall filed an eviction proceeding against Roger and
her mother,19 which forced them out of the newly remodeled home.
After Hall filed her eviction proceeding, Roger and Aaron filed mechanics’
liens on the property.20 In response, Hall filed a civil lawsuit against Roger and
Aaron to have the lien removed,21 and also filed a complaint with the Denton
County District Attorney.22 Hall ultimately prevailed in the civil lawsuit.23 Shortly
thereafter, the State indicted Roger and Aaron for “securing the execution of a
document by deception.”24 After a bench trial, the court found Roger and Aaron
guilty of the charged offense.25 Roger was sentenced to ten years in prison
(suspended for ten years), fined $5,000, and was ordered to pay $17,500 in
restitution as a condition of his community supervision; Aaron was sentenced to
two years in prison, suspended for two years.26
18
3 R.R. 41:15–18; 43:10–14.
19
3 R.R 45:
20
5 R.R. Ex. 1.
21
3 R.R. 47:6–8.
22
3 R.R. 66:17–20; 67:3–9.
23
3 R.R. 96:13–17; 203:16–20.
24
C.R. 5–7; 3 R.R. 200:1–16.
25
C.R. 65–68.
26
C.R. 65–68.
-3-
Summary of the Argument
The court of appeals correctly concluded that the evidence at trial was
legally insufficient to convict Appellants of “Securing the Execution of a
Document by Deception” under section 32.46(a)(1) of the Texas Penal Code
because the State failed to offer any evidence that the Denton County Clerk
“signed or executed” a document affecting property. All of the arguments
advanced by the State in support of a reversal of that decision fail as a matter of law
because:
— The State’s arguments are premised on a fundamental
misunderstanding of the plain meaning of the verb “to execute,” as
well as the manner and means by which mechanics’ liens are made
effective;
— The legislative history reflects that the Legislature never intended to
criminalize Appellants’ alleged acts in section 32.46(a)(1);
— The State’s arguments directly contradict this Court’s well-
established precedents for statutory construction; and
— Another plainly-applicable statute already criminalizes exactly the
same conduct that Appellants are alleged to have committed, and was
in effect at the time Appellants were indicted.
Accordingly, this Court should affirm the judgment of the court of appeals, and
grant Appellants all other relief in law and equity to which they have shown
themselves to be justly entitled.
-4-
Argument
I. The court of appeals correctly concluded that the State’s evidence was
legally insufficient to support Appellants’ convictions.
As noted above, Appellants were indicted for violating section 32.46(a)(1) of
the Texas Penal Code. To obtain a conviction, the State was required to prove that
Appellants “caused another to sign or execute a document affecting property.” In
the indictment, the State specifically alleged:
[APPELLANTS]…on or about the 22nd day of July 2008…did then
and there, with intent to harm or defraud Katheryn Payne, by
deception, to wit: misrepresent that [Appellants] performed
construction, remodeling and landscaping work to property owned by
Katheryn Payne when, in fact, defendant had not performed such
work, cause Cynthia Mitchell to sign or execute a document affecting
the property or service of Katheryn Payne….27
The two-page document at issue, titled “Claim of Lien” was attached to the
indictment.28 A cursory review of this document reveals that Mitchell (the Denton
County Clerk)29 did not “sign” it.30 Accordingly, this entire appeal ultimately turns
on whether Mitchell’s actions can be accurately described as “executing”
Appellants’ affidavit.
27
C.R. 6.
28
C.R. 7–8.
29
3 R.R. 17:25–18:4.
30
C.R. 7.
-5-
Relying primarily on this Court’s 1977 decision in Morter v. State, the court
of appeals examined other language within section 32.46 to determine the exact
nature of the conduct that the Legislature intended to criminalize.31 After noting
that subsection (a)(2) of the same statute addressed “causing a public servant to
‘file or record’ a fraudulent document,” the court of appeals concluded:
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. 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).32
Accordingly, the court of appeals reversed Appellants’ convictions, and entered a
judgment of acquittal.33 Because a contrary holding would require this Court to
ignore the plain meaning of the statute, practical experience, and legislative intent,
and would violate Appellants’ constitutional right to due process, Appellants
respectfully request this Court to affirm the court of appeals’ holding.
31
Slip Op., p. 5.
32
Slip Op., p. 6.
33
Slip Op., p. 7.
-6-
A. The State offered no evidence to support its burden to prove that the
county clerk “executed” Appellants’ mechanics-lien affidavits.
1. The county clerk’s testimony at trial reflects that she does not
“execute” documents, under the plain meaning of the word.
Because the Texas Penal Code does not define the word “execute” for
purposes of section 32.46(a)(1), the Code Construction Act requires this Court to
adopt the word’s common usage.34 Black’s Law Dictionary defines “execute” as
follows:
1. To perform or complete (a contract or duty) . 2. To change (as a legal interest) from one form to another
. 3. To make (a
legal document) valid by signing; to bring (a legal document) into its
final, legally enforceable form . …5. To enforce and collect on (a money
judgment) < Williams asked the sheriff to execute on the judgment>.35
Notably, Mitchell admitted at trial that she did not do any of these things. Instead,
Mitchell merely testified that she and her staff “file documents that affect
property”36 in the following manner:
Q. If somebody wishes to file a mechanic’s lien on a certain
property, how would they just generally go about doing that?
34
Tex. Gov’t Code § 311.011.
35
Black’s Law Dictionary (9th ed. 2009).
36
3 R.R. 18:15–20.
-7-
A. They would bring in a document, and if the document meets the
recording requirements as prescribed by law, then the clerk
takes the document, enters a certain amount of information into
the computer system, takes payment for that, and records the
document.
***
Q. If you don’t know that a document is blatantly false or
fraudulent, what would you do with that document?
A. We would record it.37
In other words, Mitchell’s actions have no relationship to the ultimate validity of
the allegations contained in underlying document; the scope of her obligations was
merely to record and index the document that Appellants executed for potential
third parties who might perform a title search.38 And although Mitchell agreed with
the prosecutor when asked if she and her staff “executed” documents when
performing their tasks,39 for the reasons discussed above, Appellants respectfully
submit that Mitchell’s ipse dixit is insufficient to alter the word’s plain meaning.
Because the State offered no other evidence to establish that Mitchell “executed”
anything, the court of appeals’ holding should be affirmed.
37
3 R.R. 20:6–8.
38
3 R.R. 23:16–20 (“Of somebody wanted to sell the property and then a title company or
somebody came to look, they would see it and they would find it and it would affect the
property”).
39
3 R.R. 19:5–8; 23:8–12.
-8-
2. As a matter of law, a “lien” is not something that a county clerk can
“execute.”
In an attempt to shoehorn the evidence at trial into the language it used in its
indictment, the State argues that Mitchell’s actions are consistent with a (non-
legal) dictionary definition of “execute” because (according to the State) “a
statutory lien is only valid and executed once it is filed and recorded.”40 This is
false. To support this argument, however, the State directs this Court to section
53.052 of the Texas Property Code,41 which is curious, given that it stands for
exactly the opposite proposition:
The county clerk shall record the affidavit in records kept for that
purpose and shall index and cross-index the affidavit in the names of
the claimant, the original contractor, and the owner. Failure of the
county clerk to properly record or index a filed affidavit does not
invalidate the lien.42
In fact, nothing in the Property Code even remotely suggests that the county clerk
plays any role in the validity of a statutory lien. Instead, it provides that a lien’s
validity turns on the compliance of the person seeking to perfect it.43
40
State’s Br., p. 23.
41
State’s Br., pp. 22–23.
42
Tex. Prop. Code § 53.052 (emphasis added).
43
Tex. Prop. Code § 53.051. See also Tex. Prop. Code §§ 53.054, .056 (After the person seeking
perfection of a lien files an affidavit with the county clerk, he or she must also send a copy to the
owner of the property and/or original contractor).
-9-
The statutory text is consistent with the well-accepted understanding of
what a “lien” actually is. Contrary to the State’s suggestion, a “lien” is not a
tangible document for a clerk to “execute.” By definition, it is “a legal right or
interest that a creditor has in another’s property.”44 Although documents may
serve as evidence of the claim, they do not constitute the lien itself, and the only
reason for recording documents relating to a claim of lien is to provide constructive
notice to—and allow enforcement against—potential third-party purchasers of the
property.45 Understandably, therefore, a thorough search of Texas statutory and
case law does not reveal a single instance in which the Legislature or any court has
ever used the verb “execute” in connection with a county clerk’s actions vis-à-vis a
claim of lien. Instead, all legal authorities recognize that the property owner and the
purported lienholder “execute” the lien, and the duties of the county clerk are
relegated to filing and/or recording documents that reflect its execution.46
Finally, the provisions of the Penal and Property Code are consistent with
the provisions of the Texas Constitution that the State attempts to distinguish in its
44
Black’s Law Dictionary (9th Ed. 2009).
45
Tex. Wood Mill Cabinets, Inc. v. Butter, 117 S.W.3d 98, 105 (Tex. App.—Tyler 2003, no pet.).
46
See, e.g., Tex. Prop. Code § 53.254 (“to fix a lien on a homestead, the person who is to furnish
material or perform labor and the owner must execute a written contract setting forth the terms of the
agreement” and “the county clerk shall record the contract in records kept for that purpose”).
- 10 -
brief.47 As the State acknowledges, the right to assert a mechanics’ lien is conferred
by the Texas Constitution,48 and for nearly 120 years, Texas courts have held that
such a lien is self-executing:
The lien does not depend upon the statute. The Legislature has no
power to affix to that lien conditions of forfeiture. The Legislature is
commanded by the Constitution simply to provide for the ‘speedy and
efficient enforcement’ of the lien. No record at any time is necessary
to give the lien. The filing and recording of the contract or account, as
provided by the statute, is not necessary in any case arising between
the original contractor and the original owner. The provisions of the
statute requiring the claim to be recorded were intended to protect the
persons having the liens against subsequent purchasers, mortgagees,
and lienholders in good faith without notice, by furnishing
constructive notice of the existence of the lien.49
This principle is further illustrated by the fact that the agreements that give rise to
such liens do not even have to be in writing.50 For obvious reasons, a county clerk
cannot record an oral lien, yet Texas courts have deemed them valid and
enforceable for more than half a century.
In sum, Appellants’ recording of an affidavit in support of a claim of lien with
the county clerk is entirely unrelated to its “finality, validity, or enforceability”
47
State’s Br., p. 21.
48
Tex. Const. art. 16, § 37.
49
Cont’l Radio Co. v. Cont’l Bank & Trust Co., 369 S.W.2d 359, 361 (Tex. Civ. App.—Houston
1963, writ ref’d n.r.e.) (citing Moore v. Carey Bros. Oil Co., 269 S.W. 75, 77 (Tex. 1925); Strang v.
Pray, 89 Tex. 525, 528, 35 S.W. 1054, 1056 (1896).
50
See, e.g., Purdin v. Jenkins, 337 S.W.2d 418, 421 (Tex. Civ. App.—Dallas 1960, no writ).
- 11 -
because it did not “change a legal interest from one form to another.”51 As a matter
of law therefore, the State failed to prove that the county clerk “executed” a
document that affected the Hall’s property. For this additional reason, the court of
appeals’ opinion and judgment should be affirmed.
B. The court of appeals’ interpretation is consistent with legislative
history.
The State devotes the majority of its briefing to its argument that “It was the
Legislature’s intent under section 32.46(a)(1) to criminalize the act of causing a
court clerk to file and record a fraudulent lien.”52 In support of this endeavor, it
raises five sub-arguments and four sub-sub-arguments, none of which have merit.
1. The Legislature’s addition of the word “execute” to section 32.46(a)(1)
in 1973 is irrelevant.
The State claims that this Court should be particularly impressed by the
Legislature’s decision to add the word “execute” to the section 32.46(a)(1) when it
overhauled the Penal Code in 1973, and replaced former article 1000 with the
present version of section 32.46(a)(1).53 For the reasons discussed above, this
addition is irrelevant because, as a matter of law, county clerks do not “execute”
51
First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 267 (Tex. 1974); Cont’l Radio
Co., 369 S.W.2d at 361; Strang, 89 Tex. at 529, 35 S.W. at 1056.
52
State’s Br., pp. 5–21.
53
State’s Br., pp. 5–9.
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liens. Moreover, the State’s admission that this former article “most closely
resembles” the current law further supports the court of appeals’ decision. As this
Court noted in its 1957 opinion in McLarty v. State, former article 1000 criminalized
“the act of intentionally defrauding another by a false reading, false interpretation; or
misrepresentation of the contents of (A) any pecuniary obligation or (B) any
instrument in writing which would in any manner affect property that would (a)
induce anyone to sign such instrument as his act or (b) give assent to it in such
manner as would make it his act, if not done under mistake.”54 Even if this Court
were willing to consider the text of a statute that has been repealed for over 40
years in its analysis of the proper interpretation of different words, the evidence in
the present case would not even support a conviction under the prior version of the
statute. This argument fails.
2. Subsections (a)(1) and (a)(2) were passed for entirely different
purposes and therefore no “overlap” is permitted.
The State then claims that “any overlap” between the “signed or executed”
requirement in section 32.46(a)(1) and the “filed or recorded” requirement in
section 32.46(a)(2) is “allowable.”55 To support this argument, the State relies on
54
McLarty v. State, 302 S.W.2d 420, 422 (Tex. Crim. App. 1957) (emphasis added).
55
State’s Br., p. 9–14.
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this Court’s opinion 2012 opinion in Avery v. State.56 There—as here—a defendant
appealed a conviction on the basis that the State prosecuted him under the wrong
subsection of the Penal Code.57 Moreover, as in the present case, the statute at
issue had been revised during an omnibus recodification.58 The fundamental
difference between this case and Avery, however, is that the previous version was
functionally identical to the version in effect at the time of the conviction.
In Avery, the defendant changed the amount of pills on the prescription that
his doctor provided him.59 The State charged him with violating section
481.129(a)(5)(B) of the Health and Safety Code, which provided:
(a) A person commits an offense if the person knowingly or
intentionally:
(5) possesses or attempts to possess a controlled substance:
(A) by misrepresentation, fraud, forgery, deception, or
subterfuge;
(B) through use of a fraudulent prescription form;
or
(C) through use of a fraudulent oral or telephonically
communicated prescription.60
56
Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012).
57
Avery, 359 S.W.3d at 233–34.
58
Avery, 359 S.W.3d at 235.
59
Avery, 359 S.W.3d at 232.
60
Avery, 359 S.W.3d at 235 (citing Tex. Health & Safety Code § 481.129 (emphasis added)).
- 14 -
On appeal, the defendant contended that he did not use a fraudulent form, he
merely forged the numbers on a form that already existed.61 In its analysis, this
Court looked to the previous version of the statute to determine what conduct the
Legislature intended to criminalize. That version was worded as follows:
(a) It is unlawful for any person knowingly or intentionally:
(3) to acquire, obtain, or attempt to acquire or obtain possession
of a controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge, or through use of a fraudulent
prescription form or fraudulent oral or telephonically
communicated prescription….62
Noting that the Legislature intended a “nonsubstantive revision” when it
recodified this article into the Health and Safety Code, this Court held that
“subsection (A) [of the current version] is broad enough to encompass most
fraudulent attempts to obtain controlled substances, the other subsections allow the
State, if it chooses, to draft a more specific charge that allows the trial court to craft
a better and more informative jury instruction, and that provides more notice to the
defendant regarding the specific act on which the charge is based.”63
The same logic does not apply to the statute at issue in this case. Here,
section 32.46(a)(1) was never designed to criminalize the act of presenting an
61
Avery, 359 S.W.3d at 232–33.
62
Avery, 359 S.W.3d at 235 (citing former Article 4476-15 § 4.09).
63
Avery, 359 S.W.3d at 236.
- 15 -
allegedly fraudulent lien to a county clerk for recording and indexing. As discussed
above, the State’s own legislative-history research reflects that the previous version
of the statute prohibited the act of obtaining someone’s signature on a document
affecting property or pecuniary interest by intentionally misrepresenting its
contents.64 When the statute was recodified, the verb “execute” was substituted
for “give assent to,” and “by deception” was substituted for “by falsely reading,
or falsely interpreting…or by misrepresenting its contents.” But none of those
changes even remotely suggest that the Legislature intended to criminalize
Appellants’ alleged actions in this case.
Instead, as the State’s brief also makes clear, the Legislature believed that it
was necessary to amend section 32.46(a) to add subsection (a)(2) “in an effort to
criminalize the filing of fraudulent judgments and other documents purporting to
create invalid liens against public officials and private citizens.”65 This argument
necessarily begs the question: If subsection (a)(1) already covered this practice,
why was it necessary to amend the statute to include subsection (a)(2)? The answer
is obvious: because the plain language of subsection (a)(1) says nothing about filing
fraudulent documents.
64
State’s Br., pp. 5–9 & Appendix C; McLarty, 302 S.W.2d at 422.
65
State’s Br., p. 16 n.6 & Appendix F.
- 16 -
The State, however, answers this question in a particularly puzzling fashion.
Although it correctly acknowledges that, “subsection (a)(1) covers any document
that is executed, in contrast to subsection (a)(2), which covers false documents
from false courts that are filed or recorded,”66 it then makes the following logical
leap:
Documents that fall under section 36.42(a)(2) are always fraudulent
and never valid, and therefore it is a crime to file or record them. On
the other hand, any person who files a lien, and follows the procedure
set forth in chapter 53 of the Texas Property Code, has executed a
valid lien against the property in question even if the basis of that lien
is later proved fraudulent. Thus, when a person deceives another into
filing, and therefore executing, a lien that is fraudulent with the intent to
defraud or harm another, they have violated section 36.46(a)(1).67
Once again, this argument ultimately turns on the State’s errant belief that county
clerks “execute” liens when they accept them for recording and indexing. For the
reasons discussed above, that argument fails.
Moreover, this argument is simply not supported by the text of the statute or
the legislative history. If the Legislature wanted to criminalize the act of “causing
or inducing a public servant to file or record any purported judgment or other
document” that was fraudulent, it could have ended the sentence there. Instead,
66
State’s Br., p. 10 (emphasis original).
67
State’s Br., p. 11–12 (emphasis added).
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the Legislature added additional sub-sub-sections to ensure that 36.42(a)(2) only
applied to documents from non-existent judicial entities.68 These limitations are
confirmed by the legislative history, which makes no reference whatsoever to
criminalizing disputed liens that do not arise out of fraudulent courts.69
In sum, the court of appeals judgment is consistent with both the plain text
and the legislative history of subsections (a)(1) and (a)(2). These provisions were
passed at different times, for entirely different purposes, and neither of them
addresses the acts that Appellants allegedly committed in this case. Accordingly,
because no “overlap” between the two is permitted, the court of appeals’
judgment should be affirmed.
C. This Court places primary emphasis on the “statutory verb” when
determining the criminal act at issue.
The State’s suggestion that that “the focus should not be on the…verbs
found in the subsections, but on the documents that are covered by the statute”70 is
contrary to this Court’s own precedent, as well as the only authority that the State
cites in support of its argument. In its 2005 opinion in Ngo v. State, this Court held
that “the verb…is generally the criminal act on which all jurors must unanimously
68
See Tex. Penal Code § 36.42(a)(2)(A), (B), (C).
69
See State’s Br., Appendix F.
70
State’s Br., p. 15.
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agree.”71 To support this holding, it relied on the reasoning of the (aptly-named)
former Fifth Circuit Judge John Minor Wisdom:
The unanimity rule ... requires jurors to be in substantial agreement as
to just what a defendant did as a step preliminary to determining
whether the defendant is guilty of the crime charged. Requiring the
vote of twelve jurors to convict a defendant does little to insure that
his right to a unanimous verdict is protected unless this prerequisite of
jury consensus as to the defendant’s course of action is also required.72
This Court reaffirmed its support for focusing on the “statutory verb” three years
later in Huffman v. State, this time adopting a rule previously offered by former
Judge Cochran in a concurring opinion:
In sum, we must return to eighth-grade grammar to determine what
elements the jury must unanimously find beyond a reasonable doubt.
At a minimum, these are: the subject (the defendant); the main verb;
and the direct object if the main verb requires a direct object (i.e., the
offense is a result-oriented crime).... Generally, adverbial phrases,
introduced by the preposition “by,” describe the manner and means
of committing the offense. They are not the gravamen of the offense,
nor elements on which the jury must be unanimous.73
By asking this Court to de-emphasize its focus from the verb-plus-infinitive and
direct object clause (“causes another to sign or execute”) in favor of the adverbial
phrase (“by deception”) or the indirect object (“any document affecting property
71
Ngo v. State. 175 S.W.3d 738, 745 n.24 (Tex. Crim. App. 2005).
72
Ngo, 175 S.W.3d at 745 n.24 (citing United States v. Gipson, 553 F.2d 453, 457–58 (5th Cir.
1977) (emphasis added)).
73
Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) (citing Jefferson v. State, 189
S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran J., concurring)).
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or service or pecuniary interest”), the State is actually arguing for a tacit reversal of
this Court’s recent and well-reasoned precedents.
This Court should decline this invitation, as even the State’s own authority
fails to support its argument. According to the State, the Third Court of Appeals
concluded in its 2008 opinion in State v. Wiesman that “the gravamen of section
32.46 is the deception.”74 Although the State accurately excerpts this phrase from
the opinion, the court’s meaning is misconstrued when it is divorced from the
context of the surrounding text:
Section 32.46 prohibits the use of deception, broadly defined, to
fraudulently induce another to sign or execute any document affecting
the property, service, or pecuniary interest of any person. Although
the gravamen of the offense is the deception, the offense is not
complete unless and until the person deceived signs or executes
the document in question.75
Contrary to the State’s representation, therefore, the Third Court of Appeals did
not conclude—or even suggest—that the purpose of section 32.46(a)(1) was “to
protect the integrity of documentary transactions” in general.76 Instead, the court
held that this subsection was designed only to punish a specific type of deception
74
State’s Br., p. 14 (citing State v. Wiesman, 269 S.W.3d 769, 776 (Tex. App.—Austin 2008, no
pet.)).
75
Wiesman, 269 S.W.3d at 776 (emphasis added).
76
State’s Br., pp. 14–15.
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that leads to the signing or execution of specific types of documents.
Finally, Weisman correctly notes that the direct object in section 32.46(a)(1)
is the pronoun “another,” and that its proper antecedent is “the person
deceived.”77 According to the State’s brief, the person (allegedly) deceived was
Katheryn (Payne) Hall—the complaining witness—whose properly was
encumbered by an (allegedly) fraudulent lien. But according to the State’s
indictment, it did not have to prove that Hall signed or executed any document, it
had to prove that the county clerk signed or executed a document.78 This disparity is
fundamentally inconsistent with Weisman. Moreover, to reverse the court of
appeals and affirm the underlying conviction, this Court would have to conclude
that the Legislature passed section 32.46(a)(1) in 1973 to protect county clerks,
which would clearly be an absurd result, given that they do not have a property,
service, or pecuniary interest in the documents that they file and record. Not
surprisingly, the State’s discussion of the legislative history of section 32.46(a)(1)
makes no reference to such an intent.
77
Wiesman, 269 S.W.3d at 776. Although the direct object in section 32.46(a)(2) is “a public
servant,” the State concedes that this subsection is inapplicable to the facts of this case because
78
C.R. 6–7.
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In sum, this Court has expressly disagreed with the State’s argument on this
issue, and the only authority it offers actually reaffirms the correctness of the court
of appeals’ judgment. In the absence of any authority to suggest otherwise, this
Court should affirm.
II. The State’s incorrectly suggests that the court of appeals’ opinion has
decriminalized the “fraudulent use of liens.”
As the State’s own legislative-history research reflects, when the Legislature
added subsection (a)(2) to section 32.46 of the Penal Code, it also added section
32.49 (titled “Refusal To Execute Release Of Fraudulent Lien Or Claim”) which
provides:
(a) A person commits an offense if, with intent to defraud or harm
another, the person:
(1) owns, holds, or is the beneficiary of a purported lien or
claim asserted against real or personal property or an
interest in real or personal property that is fraudulent, as
described by Section 51.901(c), Government Code; and
(2) not later than the 21st day after the date of receipt of
actual or written notice sent by either certified or
registered mail, return receipt requested, to the person’s
last known address, or by telephonic document transfer
to the recipient’s current telecopier number, requesting
the execution of a release of the fraudulent lien or claim,
refuses to execute the release on the request of:
(A) the obligor or debtor; or
(B) any person who owns any interest in the real or
personal property described in the document or
instrument that is the basis for the lien or claim.
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(b) A person who fails to execute a release of the purported lien or
claim within the period prescribed by Subsection (a)(2) is
presumed to have had the intent to harm or defraud another.
(c) An offense under this section is a Class A misdemeanor.79
Although Appellants were never charged with this offense, there is simply no
dispute that this section was inexistence at the time of Appellants’ indictment and
that it remains good law today. Accordingly, the State’s argument that an
affirmance of the court of appeals’ judgment would “lead to the absurd result that
Appellees’ fraudulent use of liens is not a crime”80 is simply false.
According to the State, however, section 32.49 is insufficient on its face
because its complaining witness failed to follow its requisite procedures:
This case also would not fall under section 32.49…as there was no
evidence that the victim followed the necessary steps under section
32.49(a)(2) by sending notice that she requested Appellees to release
the liens. While if the victim had followed the procedures necessary in
section 32.49 and there may have been a case against Appellees if they
had not released the liens, Appellees were the ones who filed the
fraudulent liens regardless of whether the victim asked for a release
per the statute, and Appellees should be criminally responsible for
their actions.81
In other words, because the State did not have the evidence it needed to obtain a
conviction under existing law, this Court should legislate from the bench and
79
State’s Br., Appendix F, p. 2 (§ 4); Tex. Penal Code § 32.49 (emphasis added).
80
State’s Br., p. 16.
81
State’s Br., pp. 16–17.
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retroactively graft new sections onto the Penal Code in order to ensure that
Appellants can be punished. Not only has this Court consistently opposed such
rank judicial activism,82 an argument for the retroactive application of a non-
existent statute raises obvious constitutional concerns.83
Indeed, this Court’s precedents require sections 32.49 and 32.46 to be read
in pari material, and therefore, it would violate Appellants’ due-process rights if the
State were to subject Appellants to a greater punishment under a broader statute
when a narrower statute called for a more limited punishment. In its 1988 opinion
in Cheney v. State—a case that the State actually cites in its brief in support of the
proposition that specific statutes control over general84—this Court explained how
statutes that impose different penalties for similar conduct should be construed:
It is a settled rule of statutory interpretation that statutes that deal
with the same general subject, have the same general purpose, or
relate to the same person or thing or class of persons or things, are
considered to be in pari materia.
***
The purpose of this rule is to carry out the full legislative intent, by
giving effect to all laws and provisions bearing on the same subject.
82
Ex parte Roemer, 215 S.W.3d 887, 898 (Tex. Crim. App. 2007) (“established principles of
statutory construction and separation of powers prevent this Court from “legislating from the
bench” to correct a perceived inconsistency in a statute”).
83
See U.S. Const. art. I, § 9, cl.3; Tex. Const. art I, § 16.
84
State’s Br., p. 17.
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The rule proceeds on the same supposition that several statutes
relating to one subject are governed by one spirit and policy, and are
intended to be consistent and harmonious in their several parts and
provisions. Thus, it applies where one statute deals with a subject in
comprehensive terms and another deals with a portion of the same
subject in a more definite way. But where a general statute and a more
detailed enactment are in conflict, the latter will prevail, regardless of
whether it was passed prior to or subsequently to the general statute,
unless it appears that the legislature intended to make the general act
controlling.85
Consistent with this rule, therefore, this Court has long held that the State may not
seek greater punishment under a broad statute when lesser punishment is
proscribed under a more specific statute. For example, in its 1986 opinion in Mills
v. State, this Court noted:
In the case in which the special statute provides for a lesser range of
punishment than the general, obviously an “irreconcilable conflict”
exists, and due process and due course of law dictate that an accused
be prosecuted under the special provision, in keeping with presumed
legislative intent. Accordingly, where range of punishment under what
is perceived to be the more specifically defined offense is less than that
for the broader, and especially where the convicting court would be
deprived of subject matter jurisdiction in a prosecution under the
specific provision, this Court has not hesitated to reverse convictions
obtained under the broader provision.86
85
Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988) (citing 53 Tex. Jur.2d, Statutes §
186 (1964), at 280). This doctrine has also has also been codified in section 311.026 of the Texas
Government Code.
86
Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986) (and cases cited therein).
- 25 -
And more recently, this Court held in Ex parte Smith that “a defendant has a due
process right to be prosecuted under a ‘special’ statute that is in pari materia with a
broader statute when these statutes irreconcilably conflict.”87 Finally, in its 2008
opinion in Azeez v. State, this Court held that such a defect in the trial court’s
judgment could be raised at any time, including for the first time on appeal.88
The same result should follow here. The State prosecuted Appellants under
the broader language of section 32.46(a)(1) notwithstanding the fact that the more
specific provisions in section 32.49 addressed Appellants’ alleged conduct. Under
this Court’s holdings in Cheney, Mills, Smith, and Azeez, therefore, Appellants
should have been charged with a misdemeanor, not a felony offense. Accordingly,
even if this Court were to conclude that the evidence was legally sufficient to
sustain a conviction under section 32.46(a)(1), the trial court’s judgment is void
because a district court does not have jurisdiction over misdemeanor offenses that
do not involve official misconduct.89 Either way, however, the court of appeals
judgment of acquittal must be affirmed.
87
Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App.2006).
88
Azeez v. State, 248 S.W.3d 182, 194 (Tex. Crim. App. 2008). Here, Appellant raised this issue
in his motion for new trial. C.R. 79–81. The trial court, however, never ruled on this motion and
therefore, it was denied by operation of law. Tex. R. App. P. 21.8(c).
89
Tex. Code Crim. Proc. art. 4.05.
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Conclusion and Prayer
The evidence at trial was legally insufficient to support Appellants’
conviction because the State offered no evidence that the Denton County Clerk
signed or executed any document. By seeking a reversal of the court of appeals’
judgment, the State tacitly asks this Court to ignore (a) its evidence at trial, (b) the
plain meaning of the verb “to execute;” (c) the statute’s legislative history; (d) this
Court’s well-established rules on statutory construction; and (e) another plainly-
applicable statute that already criminalizes exactly the same conduct that
Appellants are alleged to have committed. Appellants respectfully submit that this
Court should decline the State’s invitation. Instead, it should affirm the judgment
of the court of appeals, and grant Appellants all other relief in law and equity to
which they have shown themselves to be justly entitled.
Respectfully submitted,
s/ Matthew J. Kita
Matthew J. Kita
Texas Bar No. 24050883
P.O. Box 5119
Dallas, Texas 75208
(214) 699-1863 (phone)
(214) 347-7221 (facsimile)
matt@mattkita.com
Counsel for Appellants
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Certificate of Compliance
This brief complies with Texas Rule of Appellate Procedure 9.4(i) because it
contains 6,233 words (excluding the parts of the brief exempted by this rule).
Signed this 24th day of April, 2015.
s/ Matthew J. Kita
Matthew J. Kita
Certificate of Service
The undersigned certifies that a copy of this brief was served on the
following counsel via e-filing in accordance with Texas Rule of Appellate Procedure
9.5 and this Court’s Local Rules on April 24, 2015:
Counsel for Appellee:
Lara Tomlin
Denton County District Attorney’s Office
1450 East McKinney Avenue
Denton, Texas 76209
s/ Matthew J. Kita
Matthew J. Kita
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Liverman, Roger
Combined Opinion