525 S.W.3d 403
Tex. App.2017Background
- William Marks was originally indicted (three misdemeanors) for acting as a guard company without a security-services-contractor license under Tex. Occ. Code §1702.102(a).
- The State sought and the trial court granted leave to amend each indictment (over Marks’s objection) to charge accepting employment as an armed security officer without a security officer commission under Tex. Occ. Code §1702.161(a) (with criminal penalty via §1702.388).
- Marks objected at the amendment hearing that the amendments charged new and different statutory offenses and that the amendments were barred by the two-year statute of limitations; the court implicitly overruled the objection by granting the amendments.
- The cases were tried together; evidence supported convictions for accepting armed security employment without a commission, but the record lacked evidence supporting the original acts-as-a-guard-company allegations.
- Jury convicted Marks on the amended indictments; trial court sentenced to concurrent one-year probated jail terms. Marks appealed arguing (1) indictments should have negated Private Security Act non-applicability provisions; and (2) the trial court erred under art. 28.10(c) by allowing amendments over his objection.
Issues
| Issue | Plaintiff's Argument (Marks) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether indictments had to negate Private Security Act non-applicability provisions to be valid | Indictments were void because they failed to negate statutory non-applicability exemptions (e.g., full-time peace officers) | Indictments need not negate non-applicability provisions | Overruled Marks; following Baumgart, indictments need not negate non-applicability provisions, so judgments not void |
| Whether trial court erred under art. 28.10(c) by allowing amendments over objection that they charged different statutory offenses | Amendments alleged different statutory offenses; art. 28.10(c) bars amendment over objection when it charges an additional or different offense | The amended and original charges targeted the same statutory punishment (via §1702.388) and alleged related security-service conduct; State argued no prejudicial change | Court held the amended indictments alleged different statutory offenses (1702.102 vs. 1702.161); granting leave over objection violated art. 28.10(c) and was error |
| Whether art. 28.10(c) error is subject to harmless-error (Cain) analysis | Error is per se reversible (pre-Cain view) | Under Cain, most errors are subject to harmless-error analysis; any article 28.10(c) error should be analyzed for harm | Court applied Cain and held article 28.10(c) first-alternative error is not categorically immune from harmless-error review and proceeded with nonconstitutional harm analysis |
| Whether the article 28.10(c) violation was harmless | Amendment did not merely alter form; State lacked evidence to prove original acts-as-a-guard-company allegations; statute-of-limitations tolling would not save State | State argued Marks had notice and time to prepare and could have refiled charges in new indictments (tolling would permit prosecution) | Error was not harmless: record showed no evidence to support original charges and tolling would not apply; convictions reversed and remanded for proceedings on original indictments |
Key Cases Cited
- Baumgart v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017) (indictment for Private Security Act violation need not negate non-applicability provisions)
- Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (harmless-error framework applies broadly; only structural errors categorically immune)
- Flowers v. State, 815 S.W.2d 724 (Tex. Crim. App. 1991) (definition of “different offense” under art. 28.10(c))
- Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) (standard for nonconstitutional harm: affects substantial rights when it has a substantial and injurious effect on verdict)