Brown, Patrick Marcel
PD-0761-15
| Tex. App. | Jul 30, 2015Background
- Patrick Marcel Brown was indicted and convicted under Tex. Penal Code § 38.122 for "falsely holding himself out as a lawyer;" jury assessed five years' imprisonment; Fourteenth Court of Appeals affirmed.
- The indictment tracked § 38.122 and Brown stipulated he was not licensed or in good standing in Texas or elsewhere.
- The State's proof emphasized Brown's communications with J.C. Romanda (emails, attending closing, providing contact info, accepting a $5,000 check labeled "for attorney fees") and Romanda's belief that Brown was his counsel.
- Defense challenged: (1) the proper meaning of "holds himself out as a lawyer," (2) constitutionality (vagueness/overbreadth/First Amendment), (3) sufficiency/notice of the indictment and extraneous-offense notice, and (4) voir dire and jury-instruction issues including a § 6.01(c) omission instruction.
- The Fourteenth Court rejected the constitutional challenges, found the evidence legally sufficient, upheld the voir dire and jury-charge rulings, and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| Proper meaning of "holds himself out as a lawyer" | Element satisfied by conduct that creates or perpetuates a complainant's reasonable belief that defendant is a lawyer; no "magic words" required. | "Hold out" requires an actual, explicit representation that one is a lawyer; mere omission or unauthorized practice should not suffice. | Court upheld a broad interpretation: affirmative actions plus failure to correct a mistaken belief can satisfy the element. |
| Constitutionality (vagueness / overbreadth / First Amendment) | Statute targets commercial, misleading speech (practice of law); is not facially vague or overbroad and furthers a substantial state interest in regulating law practice. | Statute is overbroad/vague and may criminalize protected speech (including out-of-state practice, legal advice, or non‑misleading communications); content‑based restriction requiring strict scrutiny. | Court rejected facial vagueness and overbreadth challenges, treating § 38.122 as regulating commercial speech and finding it constitutional as applied. |
| "Good standing" requirement — scope for out‑of‑state lawyers | Statute requires the defendant to meet statutory lawyer requirements; prosecution focused on lack of licensing/good standing relevant to protection of Texas consumers. | Statute's conjunctive language could be read to require good standing in Texas and every other jurisdiction, potentially criminalizing lawful out‑of‑state practice and chilling speech. | Court relied on existing precedent (Celis and others) and did not adopt Brown's narrower reading; upheld application here given defendant's stipulation of lack of good standing. |
| Sufficiency of indictment / notice of manner and extraneous acts | Indictment tracking statutory text is sufficient; the statute does not specify manner-and-means, and the State provided discovery (emails, names, extraneous‑act notice) adequate for defense preparation. | Tracking statute alone is insufficient where definition of "hold out" is broad; more specific notice of alleged acts/omissions required to prepare defense. | Court held indictment sufficient and that Brown was not prejudiced by notice; affirmed admission of extraneous‑act evidence. |
Key Cases Cited
- Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (statutory text construed according to plain meaning absent absurd result)
- Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) (construction of § 38.122 elements and definition of "good standing")
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (analysis of content‑based restrictions and scrutiny for speech regulations)
- Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781 (U.S. 1988) (commercial vs. noncommercial speech and protection levels)
- In re Primus, 436 U.S. 412 (U.S. 1978) (First Amendment protection for provision of legal advice in certain contexts)
- Satterwhite v. State, 952 S.W.2d 613 (Tex. App.—Corpus Christi 1997) (holding unauthorized practice and related conduct can sustain a conviction under § 38.122)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (standards for reviewing sufficiency using a hypothetically correct jury charge)
- Tapps v. State, 294 S.W.3d 175 (Tex. Crim. App. 2009) (canon requiring effect given to each word and phrase in statutory construction)