ACCEPTED
14-14-00306-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/24/2015 4:51:47 PM
Nos. 14-14-00306-CR, 14-14-00307-CR, 14-14-00308-CR, 14-14-00309-CR, & CHRISTOPHER PRINE
CLERK
14-14-00310-CR
In the
Court of Appeals
For the FILED IN
14th COURT OF APPEALS
Fourteenth District of Texas HOUSTON, TEXAS
At Houston 4/24/2015 4:51:47 PM
CHRISTOPHER A. PRINE
Nos. 1909495, 1909496, 1909497, 1909498, & 1909499 Clerk
In County Criminal Court at Law Number Six
Of Harris County, Texas
ERIC L. BAUMGART
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
DAN MCCRORY
Assistant District Attorney
Harris County, Texas
mccrory_daniel@dao.hctx.net
HEYWARD CARTER
LAUREN BYRNE
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Since this case has been scheduled for submission without oral argument,
the State waives oral argument.
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
INDEX OF AUTHORITIES .............................................................................................. iii
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENTS ................................................................................ 7
REPLY TO POINTS OF ERROR ONE AND TWO .......................................................... 8
REPLY TO POINT OF ERROR THREE ......................................................................... 12
REPLY TO POINT OF ERROR FOUR ........................................................................... 16
CONCLUSION ................................................................................................................. 25
CERTIFICATE OF SERVICE .......................................................................................... 26
CERTIFICATE OF COMPLIANCE ................................................................................ 26
ii
INDEX OF AUTHORITIES
CASES
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) (opin. on reh’g) ............................................ 19
Bragg v. State,
740 S.W.2d 574 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d) .............................. 16
Freeman v. State,
413 S.W.3d 198 (Tex. App.--Houston [1st Dist.] 2013, pet. ref’d) .............................. 19
Gear v. State,
340 S.W.3d 743 (Tex. Crim. App. 2011) ........................................................................ 9
Grice v. State,
162 S.W.3d 641 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) ............................ 14
Hafley v. State,
781 S.W.2d 642 (Tex. App.--Dallas 1989, no pet.) ...................................................... 18
Hicks v. State,
18 S.W.3d 743 (Tex. App.--San Antonio 2000, no pet.) ............................................... 15
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................................................................................ 9
Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009) ........................................................................ 9
Lawrence v. State,
240 S.W.3d 912 (Tex. Crim. App. 2007) ...................................................................... 14
Lopez v. State,
846 S.W.2d 90 (Tex. App.--Corpus Christi 1992, pet. ref’d) ....................................... 15
McClain v. State,
No. 14-97-00355-CR, 1997 WL 312309 (Tex. App.--Houston
[14th Dist.] June 12, 1997, pet. ref’d) (not designated for publication) ........................ 15
Nava v. State,
415 S.W.3d 289 (Tex. Crim. App. 2013) ...................................................................... 19
iii
Perry v. State,
991 S.W.2d 50 (Tex. App.--Austin 1998, pet. ref’d) .................................................... 12
Shaub v. State,
99 S.W.3d 253 (Tex. App.--Fort Worth 2003, no pet.) ................................................. 11
State v. Coson,
912 S.W.2d 865 (Tex. App.--Beaumont 1995, no pet.) ................................................ 15
State v. Gerstenkorn,
239 S.W.3d 357 (Tex. App.--San Antonio 2007, no pet.) ............................................. 11
Taylor v. State,
332 S.W.3d 483 (Tex. Crim. App. 2011) ...................................................................... 19
Villarreal v. State,
453 S.W.3d 429 (Tex. Crim. App. 2015) ...................................................................... 20
Wooten v. State,
267 S.W.3d 289 (Tex. App.--Houston [14th Dist.] 2008, pet. ref’d) ............................ 14
STATUTES
TEX. OCC. CODE ANN. § 1702.001 (West 2012) ............................................................... 13
TEX. OCC. CODE ANN. § 1702.102 (West 2012) ..................................................... 2, 13, 15
TEX. OCC. CODE ANN. § 1702.108 (West 2012) ........................................................... 2, 13
TEX. OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014) ....................... 13
TEX. OCC. CODE ANN. § 1702.322 (West 2012) ..................................................... 2, 14, 20
TEX. OCC. CODE ANN. § 1702.388 (West 2012) ..................................................... 2, 13, 15
TEX. PEN. CODE ANN. § 1.07 (West Supp. 2014) ............................................................. 11
TEX. PEN. CODE ANN. § 2.02 (West 2011) .................................................................. 14, 16
TEX. PEN. CODE ANN. § 2.03 (West 2011) ........................................................................ 16
OTHER AUTHORITIES
29 U.S.C. § 206(a)(1)(C) ................................................................................................... 22
iv
D. MARK ELLISTON, 2 TEXAS PRACTICE GUIDE:CRIMINAL PRACTICE AND
PROCEDURE § 16:80 (2015) ....................................................................................... 15
RULES
TEX. R. APP. P. 39.7.............................................................................................................. i
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by five indictments with the offense of violating the
Private Security Act. (CR I 10; CR II 11; CR III 11; CR IV 10; CR V 10).1 After a
jury found appellant guilty of the five charged offenses, the judge assessed
punishment at two years of community supervision for each offense. (CR I 499;
CR II 517; CR III 513; CR IV 504; CR V 497).
STATEMENT OF FACTS
Renearl Bowie is an assistant director assigned to the Regulatory Services
Division of the Texas Department of Public Safety (DPS). (RR V 15-16). Director
Bowie’s division regulates the private security industry and oversees the licensing
of entities involved in that industry. (RR V 16-17). The DPS is the sole licensing
authority for the private security industry. (RR V 18).
Director Bowie explained that the Private Security Act (the Act), located in
chapter 1702 of the Texas Occupations Code, governs and regulates the private
security industry. (RR V 20). He further explained that the Act requires a security
guard to be licensed. (RR V 21, 23-26). TEX. OCC. CODE ANN. § 1702.102(a)(1)
1
“CR I” refers to the clerk’s record for cause number 1909495.
“CR II” refers to the clerk’s record for cause number 1909496.
“CR III” refers to the clerk’s record for cause number 1909497.
“CR IV” refers to the clerk’s record for cause number 1909498.
(West 2012) (requiring license for “guard company”); TEX. OCC. CODE ANN. §
1702.108(2) (West 2012) (defining “guard company” as a person who engages in
the business of a guard on a contractual basis for another person to prevent,
observe, or detect unauthorized activity on private property). A violation of this
requirement constitutes a Class A misdemeanor. (RR V 21-22). TEX. OCC. CODE
ANN. § 1702.388 (West 2012).
Director Bowie stated that the Act does provide some exceptions to the
licensing requirement. (RR V 26). Namely, there is an exception for a full-time
peace officer. (RR V 27). TEX. OCC. CODE ANN. § 1702.322(1) (West 2012).
Director Bowie explained that the Act defines a full-time officer, in part, as one
who: (1) works as a peace officer on the average of at least 32 hours a week; (2) is
compensated at least at the minimum wage; and (3) is entitled to all employee
benefits offered to a peace officer by his employing agency. (RR V 27-29, 34).
TEX. OCC. CODE ANN. § 1702.322(1)(D) (West 2012). A peace officer who does
not meet these requirements must obtain a license to work security. (RR V 34).
Director Bowie checked DPS records and determined that appellant did not
have a license during the time period spanning June to December of 2012. (RR V
36-37). In other words, appellant did not have a license to operate as a security
“CR V” refers to the clerk’s record for cause number 1909499.
2
guard on the five dates alleged in the indictments. (RR V 38; CR I 10; CR II 11;
CR III 11; CR IV 10; CR V 10).
The Neuman offenses
Tammy Neuman works for a non-profit charitable organization that operates
a bingo hall that brings in about $10,000 on a daily basis. (RR V 53-55, 62, 77).
Given this amount of cash on hand, Neuman routinely hires uniformed police
officers to serve as “security on the premises.” (RR V 62-64).
Neuman personally knows appellant since he and her husband grew up
together. (RR V 64-65). She hired appellant to work as a security guard at the
bingo hall on occasion. (RR V 64-67). In 2012, appellant worked for her on June
23, July 2, July 7, and July 29. (RR V 74-75). Neuman thought appellant was a
full-time police officer because he wore a uniform, carried a gun, drove a police
car, and had a badge. (RR V 68-69). She also thought he worked for the Liberty
County Sheriff’s Department. (RR V 69). Appellant represented himself to her as a
full-time peace officer. (RR V 69).
The Lopez offense
On November 17, 2012, Alejandro Lopez was the foreman of a construction
crew that was repairing the San Jacinto Bridge on Highway 59. (RR V 148-150).
He was employed by Main Line Industries, which is a subcontractor for the Texas
Department of Transportation. (RR V 149).
3
Lopez recalled that the highway’s two inside lanes were closed for the
repairs, but the two outside lanes remained open. (RR V 151). He explained that it
is common to have a police officer on the job site to conduct the lane closures and
protect the construction crew from the public. (RR V 152). Since only the
construction workers are authorized to access the closed lanes, the police officer
keeps the public from entering this area. (RR V 154-155).
On November 17, 2012, Kirk Bonsal, a peace officer and investigator
employed by the Harris County District Attorney’s Office, received information
that appellant was violating the Act at a particular location. (RR V 160, 167-168).
Investigator Bonsal and several other officers located appellant at Lopez’s
construction site at the San Jacinto Bridge at about 8:30 a.m. (RR V 114-119, 169,
172). Appellant was sitting in his truck, which was parked in one of the closed
traffic lanes, while the construction crew was repairing the road. (RR V 116-117,
120-121, 138, 175).
Appellant was wearing a uniform and a holstered gun, but no gun belt. (RR
V 122, 172). His uniform bore a constable’s patch associated with Precinct Four of
the Liberty County Constable’s Office. (RR V 176). Investigator Bonsal located a
document titled “daily activity report” in appellant’s truck. (RR V 179-181). This
document reflects that appellant was affiliated with the Liberty County Constable’s
Office. (RR V 182). It also indicated that he had contracted to provide traffic
4
control and security for the work crew on that particular date, starting at 6:00 a.m.
(RR V 182-183). Investigator Bonsal also found an identification card in
appellant’s wallet that identified him as a reserve police officer, with an expiration
date of December 31, 2012. (RR V 188).
To establish that appellant was not a full-time peace officer (meaning he was
required to have a security license), the State presented the testimony of Kimberly
Harris, the County Treasurer for Liberty County. (RR V 81-82). Her office
operates the payroll for the employees of Liberty County, including the constables’
precincts within Liberty County. (RR V 83-84, 86). Her office also serves as the
human resource office and, as such, it maintains files for all county employees,
including payroll records, retirement records, and worker’s compensation records.
(RR V 89). “[A]nything to do with an employee’s record, it comes through [her]
office.” (RR V 89). Furthermore, all county employees are eligible for health
insurance and retirement benefits. (RR V 88).
Harris searched her office’s records for paperwork associated with appellant
from 2008 through 2013. (RR V 93-94). No paychecks were issued to appellant
and there were no payroll records indicating that appellant received any
compensation from the county. (RR V 94). There was no record of any time sheets
submitted by appellant. (RR V 95). There was no record of any tax forms, such as
a W-2, for appellant. (RR V 96). There were no vehicle compensation records for
5
appellant. (RR V 96-97). There was no record of any county benefits being paid to
appellant. (RR V 97). As such, Harris determined appellant was never a paid
employee of Liberty County from 2008 through 2013. (RR V 97). In fact, to her
knowledge, appellant had never been an employee of Liberty County. (RR V 108).
In an effort to show that he was a full-time peace officer at the time of the
offenses (which would mean he did not need a license to work as a security guard),
appellant presented the testimony of Chad Pafford. Pafford was the elected
Constable in Liberty County from 2009 to 2013. (RR VI 75). He hired appellant as
a reserve officer in 2009. (RR VI 75, 83-84). In 2011, Pafford “changed
[appellant] over to full time.” (RR VI 79, 85). There were no funds in Pafford’s
budget to pay appellant any money, so he compensated appellant by providing him
the use of a “take-home car” and the use of county equipment. (RR VI 79, 101).
The car was apparently a 2000 Ford Crown Victoria with about 260,000 miles. (RR
VI 109).
Regarding the three criteria for being a full-time officer, Pafford first
claimed that appellant worked for him at least 32 hours a week. (RR VI 89).
Pafford admitted, however, that he had no paperwork documenting his claim that
appellant worked 32 hours per week. (RR VI 105). He explained that appellant
worked his 32 hours per week on the honor system. (RR VI 105).
6
Second, Pafford testified that he believed appellant earned minimum wage
while working for him because he considered the value of the use of the take-home
car and the county equipment to exceed minimum wage. (RR VI 108-110).
However, despite considering appellant’s use of county property to constitute
compensation in excess of minimum wage, Pafford did not report this supposed
compensation to the Liberty County tax Assessor’s Office, the IRS, or any other
taxing authority. (RR VI 122-123).
Third, Pafford testified that when appellant became a full-time employee, he
did not get health care or a pension plan. (RR VI 103). Pafford did not know if
appellant was entitled to all benefits offered by the county. (RR VI 110). Later,
Pafford testified that appellant received Workmen’s Compensation benefits and
waived all other benefits. (RR VI 117).
SUMMARY OF THE ARGUMENTS
Points one and two: Appellant’s two sufficiency challenges are meritless. First,
appellant complains the evidence fails to show that he contracted with Lopez. The
indictment, however, does not allege that appellant contracted with appellant;
rather, it alleges appellant acted as a guard on a contractual basis for Lopez.
Absent an allegation that appellant contracted with appellant, the State had no
burden to prove such an allegation.
7
Second, appellant claims the evidence fails to show that the area he was
guarding was “private property.” However, since the public did not have access to
the property, it was private property.
Point three: The State was not required to negate the subchapter N exceptions in
the indictment because these exceptions are located in statutes separate from the
statutes that provide the penal offense.
Point four: Appellant’s fourth point of error is premised on the erroneous
identification of the “law enforcement personnel” statute as a defense. Since it is
not a defense, appellant’s arguments are meritless. Furthermore, assuming any
error exists in the jury charge, appellant suffered no egregious harm.
REPLY TO POINTS OF ERROR ONE AND TWO
In two points of error, appellant contends the evidence is insufficient to
support his conviction in cause number 1909495. The indictment in that case
alleges that appellant: “did then and there unlawfully, intentionally and knowingly
act as a guard company, by engaging in the business of a guard on a contractual
basis for another person, namely ALEJANDRO LOPEZ, to prevent, observe, or
detect unauthorized activity on private property, without holding a license as a
security services contractor.” (CR I 10).
Appellant’s challenge to the sufficiency of the evidence is two-fold. First,
he claims there is no evidence that he contracted with Alejandro Lopez.
8
(appellant’s brief, pp. 11-12). Second, he argues the evidence fails to support the
allegation of “private property.” (appellant’s brief, p. 12).
Sufficiency-of-the-evidence standard
In determining whether the evidence is sufficient to support a conviction, a
reviewing court must consider all the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, any rational factfinder could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard
gives full play to the responsibility of the factfinder to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Gear, 340 S.W.3d at 746 (quoting Jackson, 443 U.S. at
319). This standard applies equally to circumstantial and direct evidence. Laster v.
State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
Contractual basis
As mentioned, appellant first claims the evidence is insufficient to show that
he “contracted with Alejandro Lopez.” (appellant’s brief, p. 12). In support of this
contention, appellant notes that Lopez testified that he did not hire appellant to
provide security for the construction crew. (RR V 156). Lopez explained that a
company other than his hires police officers for security. (RR V 156).
9
Appellant’s contention is meritless because it misinterprets the allegations in
the charging instrument. The indictment does not allege that appellant contracted
with Lopez. Rather, it alleges that appellant engaged in the business of a guard on
a contractual basis for Lopez. (CR I 10). Based on this language, the State was
required to show appellant was providing guard services on a contractual basis, but
there was no need to establish that Lopez himself was a party to the contract. As
worded, any person could have contracted with appellant for guard services for
Lopez. In short, the indictment alleges appellant contracted for, not with, Lopez.
Since appellant complains of the State’s failure to prove a fact not alleged in the
indictment, his claim is meritless.
Furthermore, appellant does not contend that the evidence fails to show that
he engaged “in the business of a guard on a contractual basis for” Lopez. (CR I 10)
(italics added). In any event, the evidence does show that appellant contracted to
provide security for Lopez and his construction crew. (RR V 152, 178-183; RR IX
– SX 27, 36).
Private property
Appellant also claims the evidence is insufficient to establish that the
property upon which he was guarding against unauthorized activity was “private
property” as alleged in the indictment. (CR I 10). Appellant maintains that the
10
portion of the highway on which he was providing guard services was public
property.
The term “private property” does not appear to be statutorily defined.
However, the term “public place” is defined in the Texas Penal Code. By process
of elimination, therefore, whether an area is private property may be determined by
examining whether it falls outside the definition of a public place.
The penal code defines a public place as follows:
“Public place” means any place to which the public or a
substantial group of the public has access and includes,
but is not limited to, streets, highways, and the common
areas of schools, hospitals, apartment houses, office
buildings, transport facilities, and shops.
TEX. PEN. CODE ANN. § 1.07(40) (West Supp. 2014). In determining the
public/private nature of a location, the relevant inquiry is whether the public has
access to the place. State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.--San
Antonio 2007, no pet.); Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.--Fort Worth
2003, no pet.). Therefore, even though a “highway” is listed in the statute as a
public place, the statute and the interpretative caselaw identify public access as a
determinative feature of a public place. Id.
At the time of his commission of the offense, appellant was located on the
inside lane of US 59. (RR V 116). He was seated in this truck, which was parked
in a closed lane of the highway. (RR V 117-122). The lane was marked off with
11
barrels and the construction crew was repairing the road within the closed-off area.
(RR V 129). Four different witnesses testified that the public did not have access
to this blocked-off area of the road and some of them also confirmed that it was
appellant’s job to prevent the public’s access to the area. (RR V 129, 154-155, 174,
211-13).
Since the area in question was cordoned-off with barrels and a security
guard was present for purposes of keeping the public out of the area, the section of
the roadway on which appellant was present was not accessible to the public.
Under these particular circumstances, the area was private, not public. Compare
Perry v. State, 991 S.W.2d 50, 51-52 (Tex. App.--Austin 1998, pet. ref’d) (the fact
that a park was closed by virtue of its hours of operation did not render it
nonpublic because there were no gates or other barriers preventing the public from
entering the park; the park was accessible to the public thereby making it a public
place). Accordingly, the evidence is sufficient to support appellant’s conviction in
cause number 1909495.
Points of error one and two are meritless and should be overruled.
REPLY TO POINT OF ERROR THREE
In his third point of error, appellant contends the trial judge erred in denying
his motion to quash the indictments. (CR I 233; RR II 14-33). Appellant maintains
12
the indictments were defective because they did not negate the exceptions
applicable to the charged offense.
Relevant chapter 1702 provisions
Chapter 1702 of the Texas Occupations Code is known as the Private
Security Act. TEX. OCC. CODE ANN. § 1702.001 (West 2012). This Act requires a
security guard to be licensed. TEX. OCC. CODE ANN. § 1702.102(a)(1) (West 2012)
(requiring license for “guard company”); TEX. OCC. CODE ANN. § 1702.108(2)
(West 2012) (defining “guard company” as a person who engages in the business
of a guard on a contractual basis for another person to prevent, observe, or detect
unauthorized activity on private property). A person commits an offense if he
violates this requirement. TEX. OCC. CODE ANN. § 1702.388(a) (West 2012).
Appellant was charged with the commission of this offense by acting as a guard
without a license. (CR I 10; CR II 11; CR III 11; CR IV 10; CR V 10).
However, Subchapter N of chapter 1702 is titled “EXCEPTIONS.” This
subchapter contains 12 statutes which, collectively, provide a list of about 41
categories of individuals to whom chapter 1702 “does not apply.” TEX. OCC. CODE
ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014). At trial, appellant
unsuccessfully attempted to demonstrate that he fell into one of these categories of
people who do not require a license to serve as a security guard. Namely, appellant
13
claimed he had full-time employment as a peace officer. TEX. OCC. CODE ANN. §
1702.322(1) (West 2012).
Relevant penal code provision
Section 2.02 of the Texas Penal Code is titled “Exception” and provides:
(a) An exception to an offense in this code is so labeled
by the phrase: “It is an exception to the application of
. . . .”
(b) The 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.
(c) This section does not affect exceptions applicable to
offenses enacted prior to the effective date of this code.
TEX. PEN. CODE ANN. § 2.02 (West 2011) (italics added).
Standard of review
A trial judge’s ruling on a motion to quash an indictment is reviewed for an
abuse of discretion. Wooten v. State, 267 S.W.3d 289, 309 (Tex. App.--Houston
[14th Dist.] 2008, pet. ref’d); Grice v. State, 162 S.W.3d 641, 645 (Tex. App.--
Houston [14th Dist.] 2005, pet. ref’d). The reviewing court applies a de novo
standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007).
14
Argument and analysis
Appellant argues that his five indictments are defective because they fail to
negate the 41 exceptions contained in subchapter N. The general rule is that where
a penal statute embraces an exception which is part of the statute itself, the State
must negate the exception in the indictment. Lopez v. State, 846 S.W.2d 90, 93
(Tex. App.--Corpus Christi 1992, pet. ref’d). However, when an exception is in a
separate section from the provision that states the offense, the exception need not
be negated in the indictment. Hicks v. State, 18 S.W.3d 743, 744 (Tex. App.--San
Antonio 2000, no pet.); State v. Coson, 912 S.W.2d 865, 868 (Tex. App.--Beaumont
1995, no pet.); McClain v. State, No. 14-97-00355-CR, 1997 WL 312309, at * 1
(Tex. App.--Houston [14th Dist.] June 12, 1997, pet. ref’d) (not designated for
publication); D. MARK ELLISTON, 2 TEXAS PRACTICE GUIDE:CRIMINAL
PRACTICE AND PROCEDURE § 16:80 (2015).
The offense with which appellant was charged is found in sections 1702.102
and 1702.388. TEX. OCC. CODE ANN. §§ 1702.102, 1702.388 (West 2012). The
exceptions are found elsewhere, in sections 1702.321 through 1702.332. TEX.
OCC. CODE ANN. § 1702.321-1702.332 (West 2012 & Supp. 2014). Since the
exceptions are listed in sections separate from the statute that provides the offense,
the State was not required to negate the exceptions in the indictment. Hicks, 18
S.W.3d at 744. Furthermore, it would be unreasonable to expect an indictment to
15
include negations of the 41exceptions listed in subchapter N. Bragg v. State, 740
S.W.2d 574, 576 (Tex. App.--Houston [1st Dist.] 1987, pet. ref’d) (“it is
unreasonable to expect an indictment to include negations of 18 situations in which
the offense does not apply”).
Accordingly, the trial judge did not err in denying appellant’s motion to
quash the indictment. Point of error three is meritless and should be overruled.
REPLY TO POINT OF ERROR FOUR
In his fourth point of error, appellant contends that if this Court determines
that the “law enforcement personnel” exception in section 1702.322(a) is actually a
defense, rather than an exception, then the trial judge erred by failing to apply this
law to the facts of the case in the application paragraph and by failing to instruct
the jury that a reasonable doubt on the defense requires an acquittal. To the extent
that this point of error is predicated on a finding that section 1702.322 constitutes a
defense, it is meritless because the statute is clearly housed among a list of
exceptions as evidenced by its inclusion in subchapter N, which is titled
“EXCEPTIONS.” And an exception is different from a defense. See and compare
TEX. PEN. CODE ANN. § 2.02 (West 2011); TEX. PEN. CODE ANN. § 2.03 (West
2011). Since appellant’s point of error is premised on an inaccurate
characterization of section 1702.322 as a defense, it is meritless and should be
overruled.
16
However, even if the “law enforcement personnel” issue in section
1702.322(1) were a defense, appellant’s complaint about the jury charge would
remain meritless. The abstract portion of the jury charge defines the charged
offense as follows:
It is unlawful for any person to engage in the business of,
or to perform any service as a guard company, or to offer
his services in such capacities or engage in any business
or business activity required to be licensed by the Texas
Private Security Act, unless the person holds a license as
a security services contractor.
(CR I 491).2 The abstract portion of the charge also provides a description of
section 1702.322’s law enforcement personnel provision:
It is not a violation of the Private Security Act for a
person who has full-time employment as a peace officer,
to receive compensation for private employment on an
individual or independent contractor basis as a guard, if
the officer:
(A) is employed in an employee-employer
relationship or is employed on an individual contractual
basis;
(B) is not in the employ of another peace officer;
(C) is not a reserve officer; and
(D) works as a peace officer on average at least 32
hours a week, is compensated by the state or political
subdivision of the state at the rate of minimum wage or
higher, and is entitled to all employee benefits offered to
a peace officer by the state or political subdivision.
(CR I 491).
2
Other than variations in offense dates and the complainants’ names, the language in the
jury charge is the same for each cause number. (CR I 491; CR II 511; CR III 507; CR IV 498).
17
Following the abstract section of the jury charge, the application paragraph
states:
Now, therefore, if you believe from the evidence beyond
a reasonable doubt that…the defendant, ERIC
BAUMGART, did then and there unlawfully,
intentionally, or knowingly act as a guard company by
engaging in the business of a guard on a contractual basis
for another person…to prevent observe or detect
unauthorized activity on private property, without
holding a license as a security services contractor, then
you shall find the defendant guilty.
(CR I 493). The charge also instructs the jurors that:
The burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to the
defendant.
. . .
The prosecution has the burden of proving the defendant
guilty, and it must do so by proving each and every
element of the offense charged beyond a reasonable
doubt, and if it fails to do so, you must acquit the
defendant.
(CR I 494).
Appellant contends that the application paragraph is deficient because it fails
to apply the law regarding the law enforcement personnel “defense” to the facts of
his case. This claim is meritless because an application paragraph need not include
an instruction negating defenses. Hafley v. State, 781 S.W.2d 642, 646 (Tex. App.--
Dallas 1989, no pet.) (application paragraph need not negate the security officer
defense).
18
Furthermore, assuming there was error in the jury charge, it was harmless.
Since appellant failed to object to the jury charge on the grounds stated in this
point of error (RR IV 127-138), reversal is required only if appellant was
egregiously harmed. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984) (opin. on reh’g); Freeman v. State, 413 S.W.3d 198, 209 (Tex. App.--
Houston [1st Dist.] 2013, pet. ref’d). An egregious harm analysis considers: (1)
the entire jury charge; (2) the state of the evidence including the contested issues
and the weight of the probative evidence; (3) the arguments of the parties; and (4)
any other relevant information revealed by the record of the trial as a whole. Id.
Jury charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory. Id.
Egregious harm is a difficult standard to prove. Taylor v. State, 332 S.W.3d 483,
489 (Tex. Crim. App. 2011).
Regarding the first factor, a review of the entire jury charge indicates any
error did not result in egregious harm. Although the “law enforcement personnel”
issue is not presented in the application paragraph, it is explained in detail in the
abstract section of the jury charge. (CR I 491). A proper recitation of the law in the
abstract section of the charge minimizes error in the application paragraph. Nava v.
State, 415 S.W.3d 289, 298 n.21 (Tex. Crim. App. 2013).
19
Furthermore, the application paragraph does instruct the jurors to find
appellant guilty only if he “unlawfully” acted as a guard without a license. (CR I
493). Therefore, having been informed in the abstract section of the charge that a
person acting as a guard who meets the “law enforcement personnel” criteria does
not act unlawfully, the jurors effectively were instructed to find appellant not guilty
if he satisfied the “law enforcement personnel” factors. As such, a review of the
entire charge indicates appellant was not egregiously harmed by any error.
The second factor considers the state of the evidence. In determining
whether egregious harm occurred with regard to an error relating to a defensive
issue, it is appropriate to consider the plausibility of the evidence raising the
defense. Villarreal v. State, 453 S.W.3d 429, 436 (Tex. Crim. App. 2015). The
evidence supporting appellant’s defensive theory under the “law enforcement
personnel” statute was weak.
To qualify for a defense/exception under this statute, appellant was required
to establish that he: (1) worked as a peace officer at least 32 hours per week on
average; (2) was compensated by a rate equal to minimum wage at least; and (3) he
was entitled to all employee benefits offered to a peace officer. TEX. OCC. CODE
ANN. § 1702.322(1) (West 2012). The only witness to testify about these matters
was Chad Pafford, the elected constable who gave appellant a job. (RR VI 75).
20
Pafford testified that appellant worked more than 32 hours per week on
average. (RR VI 89). On cross-examination, however, he admitted that he had no
paperwork to support this claim and that no such documentation ever existed,
despite the fact that he claimed appellant was a full-time officer for 23 months.
(RR VI 87, 105-106). Pafford stated that appellant worked this supposed 32-hour
work week on “the honor system” for this extended length of time (RR VI 87, 105-
106). The Liberty County Treasurer, Kim Harris, testified that appellant was never
a paid employee of Liberty County. (RR V 97).
Regarding the minimum-wage requirement, Pafford admitted that appellant
did not receive a paycheck despite working as a full-time officer for nearly two
years. (RR VI 87, 101). Pafford explained that appellant’s only compensation was
the use of a “take-home patrol car” and the use of unspecified “county equipment.”
(RR VI 101). He considered the value of the use of these items to be more than
minimum wage. (RR VI 109). The car was a 2000 Ford Crown Victoria with about
260,000 miles on it. (RR VI 109-110). Even though Pafford considered appellant’s
use of the car and county equipment as compensation, he did not report this
compensation to the Liberty County Tax Assessor, the IRS, or any other taxing
authority. (RR VI 122-123).
Regarding the benefits requirement, Pafford testified he did not know if
appellant was entitled to all the benefits offered by Liberty County. (RR VI 110).
21
He “believe[d]” appellant received workmen’s compensation benefits. (RR VI
117). The Liberty County Treasurer, Kimberly Harris, stated that county
employees, including law enforcement personnel, are offered various county
benefits. (RR V 88). Her office maintains files for workmen’s compensation
benefits for all county employees. (RR V 89). There was no record of appellant
receiving any benefits. (RR V 97).
Appellant’s evidence relating to the three requirements under the “law
enforcement personnel” statute was very weak. First, it is unlikely the jury would
have believed Pafford’s claim that appellant worked 32 hours per week on average
since Pafford did not have appellant document his time worked in any manner
whatsoever. Furthermore, he apparently did not attempt to verify appellant’s work
hours by any non-document method either since he relied simply on “the honor
system.” By relying on the honor system, it appears that Pafford did not have
actual knowledge of the amount of hours worked by appellant.
Regarding the second factor, there is no evidence that appellant was paid at
least minimum wage. Minimum wage is $7.25. 29 U.S.C. § 206(a)(1)(C). So, at
minimum wage, working 32 hours per week for a month would yield a pay of
about $928 (7.25 x 32 (hours) x 4 (weeks)). There was absolutely no evidence that
the value of the monthly use of the aged and high-mileage vehicle provided to
appellant was anywhere near $928. Similarly, there was no evidence indicating
22
appellant’s use of other county equipment or the value of such. Under these
circumstances, the jury had no plausible ground for finding that appellant was paid
at least minimum wage. Any doubts about the value of appellant’s compensation
were exacerbated by the fact that Pafford did not report appellant’s compensation
to any taxing authority.
Regarding the third requirement, Pafford testified he did not know if
appellant was entitled to all the benefits offered by Liberty County. (RR VI 110).
And his belief that appellant received workmen’s compensation benefits was
contradicted by Harris and her knowledge of the Liberty County personnel files.
Given this state of the evidence, it is very doubtful the jury would have
found that appellant satisfied all three requirements under the “law enforcement
personnel” statute. Furthermore, the jury was unlikely to find appellant was a full-
time officer (as required under section 1702.322) since, at the time of his arrest at
the Lopez construction site, he possessed an unexpired identification card that
identified him as a reserve officer for the Liberty County Constable. (RR V 187-
188). The state of the evidence, therefore, demonstrates that any error relating to
the submission of the “law enforcement personnel” did not result in egregious
harm.
The third factor used to determine whether egregious harm occurred as a
result of jury charge error considers the parties’ arguments. The record reflects that
23
both parties addressed the three criteria found in the “law enforcement personnel”
statute and applied that statutory law to the facts of the case. (RR VII 8-9, 21-26).
As such, the jury received information applying the law to the facts despite any
error in the jury charge’s application paragraph.
Accordingly, these three factors show that appellant was not egregiously
harmed by any error in the jury charge. Point of error four is meritless and should
be overruled.
24
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
mccrory_daniel@dao.hctx.net
25
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to the
following email address via TexFile:
Renato Santos, Jr.
Attorney at Law
Renato.santos3@att.net
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 5,318 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
Date: 4/24/2015
26