OPINION ON REMAND
Rоss Margraves appealed from his conviction for misuse of state property, a third degree felony. In our original opinion,
Margraves v. State,
On remand, we must consider the remaining points of' error, numbers five through eight. We reluctantly affirm the conviction.
I. Factual Nutshell
In 1993, Margraves was Chairman of the Texas A & M Board of Regents. On August 4,1993, he took a trip on an A & M system aircraft to Baton Rouge, Louisiana.
II. Analysis
A. The Special Instructions
Under point of error five, Margraves makes a plethora of contentions alleging error in the court’s submission of special instructions in the jury charge. Mar-graves complains: (1) that the inclusion of the special instructions created a fatal variance between the indictment and the jury charge; (2) that the trial court erred in submitting the special instructions because the instructions are erroneous; (3) that the court erred in refusing to include in the special instructions language from an Attorney General’s opinion regarding spousal travel; and (4) that, as submitted, the special instructions constituted an imрroper comment on the weight of the evidence.
1. Fatal Variance
In his first subpoint, Margraves contends that the inclusion of the special instructions created a fatal variance between the indictment and the jury charge. This is same assertion that Margraves made in his third point of error, and he offers no new argument and cites no new authority under this subpoint. We considered and overruled point of error number three in our prior opinion based on Margraves’ failure to object to the charge on the basis of a fatal variance.
See Margraves,
2. Erroneous
Next, Margraves argues that even if there was not a fatal variance, the instructions were erroneous as a matter of law. He highlights as problematic the following paragraph from the instructions:
The Board of Regents of the Texas A & M University System was аuthorized by the Legislature to pay for necessary and reasonable expenses for transportation from these funds only when the purposes of the travel clearly involved official state business, was consistent with the legal responsibilities of the Texas A <& M University System, and, for travel outside the State of Texas, the travel was approved in advance in accordance with the policies of the Board of Regents of the Texas A & M University System.
This language was adapted from Article V, § 13(4) of the 1991 Appropriations Act. See Appropriations Act, 72nd Leg., 1st C.S., ch.19, § 13(4), 1991 Tex. Gen. Laws 1012. Section 13 is entitled “General Travel Provisions.” Margraves contends that this provision is in conflict with § 20 of Article V, which is entitled “Aircraft.” Section 20(1) states: “This sub-section shall apply оnly to state-owned aircraft and shall be the only appropriation authority therefor.” On the basis of this language, Margraves contends that the general travel requirements in § 13(4) do not apply when the travel is onboard a state-owned aircraft.
Additionally, Margraves points out that § 20(l)(j) specifically lists certain criteria for transportation by state aircraft, but these criteria do not include the requirement in § 13(4), and reproduced in the special instructions, that “for travel outside the State of Texas, the travel [must be] approved in advance in accordance with
Margraves correctly points out that when a specific provision and a general provision genuinely conflict with one another, the specific provision should be read as controlling over the general provision or as creating an exception to the general provision.
See
Tex. Gov’t Code Ann. § 311.026(b) (Vernon 1998). However, whenever possible, the courts should attempt to harmonize any apparent conflict between two provisions so that both laws are given effect and the full legislative intent is preserved.
See id.
§ 311.026(a);
Burke v. State,
We first note that the two provisions are under the same “Travel Regulations” subheading of the same statute. See Appropriations Act, 72nd Leg., 1st C.S., ch.19, §§ 12-20, 1991 Tex. Gen. Laws 1011-22. Section 13 of the statute is entitled “General Travel Provisions” and then each travel section thereafter (§§ 14-20) has a more specific title, e.g., “Transportation Expenses,” “Moving Expenses ...,” “Aircraft.” This arrangement suggests that § 13 applies across the board as an overlay to all the other travel sections.
The heart of Margraves contention is that § 20(1) states it is the “only appropriation authority” for state-owned aircraft, and therefore, § 13(4) cannot apply to expenditures concerning state-owned aircraft. The real question then is whether thе statement in § 20(1) expresses an intent by the legislature for the general provisions of § 13(4) to not apply to travel by state aircraft. Read strictly, § 13(4) does not grant any authority to use a state aircraft or appropriate or expend funds for such use and so its application is not directly excluded by the statement in § 20(1). 2 Section 13(4) simply sets forth an additional requirement of preapproval when transportation, even by a state-owned aircraft, is to an out-of-state destination. No provision of § 20 even addresses out-of-state travel. 3
Margraves further suggests that § 13(4) should be limited in its application to sections specifically dealing with “transportation, meals, lodging, and incidental expenses,” as is recited in § 13(4). He points out that § 14 is titled “Transportation Expenses” and § 15 is titled “Expenses for Meals and Lodging.” However,
We acknowledge that there is a certain amount of ambiguity involved in attempting to discern the legislative intent in regard to the application of these provisions. It is not necessarily unreasonable to interpret the statement in § 20(1), that it is the “only appropriation authority” for state-owned aircraft, as exempting transport by such aircraft from the requirements of § 13(4). However, the Code Construction Act mandates that we should attempt to harmonize any apparent conflict between two provisions so that both provisions are given effect.
See
Tex. Gov’t Code Ann. § 311.026(a);
see also Cheney,
Furthermore, even if there was error in the charge in submitting the pre-approval language, we find that such error in this case would have been harmless. If error in the jury charge was the subject of a timely objection, then reversal is required if the error was calculated to injure the rights of the defendant.
Ovalle v. State,
The jury charge in the present case asked whether Margraves misapplied an A & M aircraft. It defined “misapply” as meaning “to apply wrongly or to misuse or spend
without proper authority
” (emphasis added). Margraves suggests that the “without proper authority” language meant that the jury could convict him for failing to get preapproval for the out-of-state trip when such approval was not required. However, the charge read as a whole and the evidence presented at trial does not support this contention. The charge clearly allowed the jury to convict Margraves for his personal use of the aircraft, irrespective of any preapproval requirement. Also, in its legal sufficiency analysis, the Court of Criminal Appeals did not so much as mention the failure to obtain preapproval, yet found the evidence sufficient to sustain the conviction.
See
3. Attorney General’s Opinion
In his third subpoint, Margraves contends that the trial court erred in denying his request to include language from аn Attorney General’s opinion regarding spousal travel. He specifically points to the following language from the opinion:
The nature and duties of the office, the traditional role, if any, of the office holder’s spouse, the purpose of a particular trip and the spouse’s connection with that purpose are factors relevant to the determination that there is an official purpose in a particular case.
See Op. Tex. Att’y Gen. No. H-1089 (1977). It was undisputed at trial that Margraves’ spouse accompanied him on the trip to Baton Rouge. He contends that an instruction was necessary on this issue because without it the jury was left to speculate as to “the proper rules governing spousal travel” and the аppropriate legal standards to apply thereto.
The trial judge is required to deliver to the jury a “written charge distinctly setting forth the law applicable to the case.” Tex.Code CRiM. Proc. Ann. Art. 36.14 (Vernon 1981). The purpose of the charge is to inform the jury of the applicable law and to guide it in applying the law to the facts of the case.
Hutch v. State,
The language for Margraves’ requested instruction comes from an Attorney General’s opinion.
See
Op. Tex. Att’y Gen. No. H-1089. He cites no statutory or case law to support the inclusion of the instruction and we have found none. While Attorney General’s opinions can be persuasive, they are not binding on the courts.
Ex parte Schroeter,
The court’s charge sufficiently tracks the language of the relevant Penal Code provision and Appropriations Act sections. The charge adequately provided the jury with an abstract legal basis on which to understand the application of the law to the facts.
See Plata v. State,
Furthermore, even if the court erred in refusing to include an instruction on spousal travel, we find that such error was harmless. The actual degree of harm must be assessed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.
Ovalle,
Furthermore, the instructions in the charge stated that “for travel outside the State of Texas, the trаvel [must be] approved in advance in accordance with the policies of the Board of Regents of the Texas A & M University System.” A copy of the A & M system travel regulations was offered into evidence as State’s Exhibits 1 and la. Section 7 of the regulations contains rules for “Use of System Aircraft.” Subsection 7.4 is entitled “Travel of Spouses of State Employees” and contains substantially the same language as the Attorney General’s opinion. Therefore, the jury was specifically directed by the instructions to the very language requested by Margraves. In other words, even though he was not legally entitled to a specific instruction on spousal travel, he, in effect, received exactly that. Any error in omitting the spousal travel instruction was harmless. We overrule this subpoint.
4. Improper Comment
In his last subpoint, Margraves contends that the special instructions constituted an improper comment on the weight of the evidence. Specifically, he asserts that if the trial court was intent on submitting certain travel related provisions from the Appropriations Act and the State Aircraft Pooling Board Act, then the court should have included
all
of the travel related provisions in the acts. Margraves, however, failed to segregate or specifically identify the provisions that he wanted the court to include, and he failed to either
Furthermore, the “Travel Regulations” section of the Appropriations Act alone covers nine sections and 12 pages of the General Laws; it includes provisions relating to motor vehicles, personally owned aircraft, expenses for meals and lodgings, moving expenses, etc. Even if Margraves had properly requested this instruction in writing or by dictation, including all of these irrelevant provisions would have unnecessarily complicated the charge and probably would have confused the jury.
See
Tex.Code CRiM. PRoc. Ann. Art. 36.14 (Vernon 1981)(the judge shall deliver a “written charge distinctly setting forth the law applicable to the case”);
Carrillo v. State,
B. Closing Argument
Margraves next contends that the trial court erred in allowing the State to reserve its entire closing argument for rebuttal. He argues that the trial court exceeded its authority under article 36.07 of the Texas Code of Criminal Procedure and deprived him of his right to due process. In its closing, the State argued that “the crux of this case ... is that we can spend funds if it’s necessary, if it’s reasonable and if it clearly involves State business. We can’t spend funds if it clearly involves State business, but it’s not reasonable.” Margraves asserts that he was harmed by not being able to respond to this argument in his own closing remarks. 4
Article 36.07 states, in its entirety: “The order of argument may be regulated by the presiding judge; but the State’s counsel shall have the right to make the concluding address to the jury.” Tex.Code CRiM. PROC. Ann. Art. 36.07 (Vernon 1981). There is clearly nothing on the face of the statute that requires the prosecution to open closing argument.
Nelson v. State,
In
Norris v. State,
The procedure employed in the present case is substantially similar to that occurring in
Norris,
with the exception of the fact that Margraves did not offer a bill of exception that would have allowed us to consider any rebuttal arguments that may have been made (although it is unclear from
Noms
whether the contents of such a bill could ever lead to a reversal). The contentions made in the two cases are also substantially similar. Norris complained that the trial court’s denial of rebuttal rendered his trial fundamеntally unfair, as essentially does Margraves. Accordingly, we find that the trial court did not abuse its discretion in allowing the State to waive its opening and in refusing to give Mar-graves the opportunity to rebut the State’s closing remarks.
See id.; Nelson,
Margraves additionally suggests that the court should look for guidance to Rule 269 of the Texas Rules of Civil Procedure, which requires the party with the burden of proof to open argument, and Rule 29.1 of the Federal Rules of Criminal Procedure, which requires the prosecution to open.
See
Tex.R. Civ. P. 26; Fed. R.CrimP. 29.1. But, given the clarity of the language in article 36.07, we see no need to look to any inapplicable rule for guidance. The Court of Criminal Appeals has, in fact, specifically rejected the notion that Rule 269 applies in criminal cases.
See Brown v. State,
C. Newly Discovered Evidence
In his seventh point of error, Mar-graves contends that the trial court erred in denying his motion for new trial because evidence discovered after the conclusion of the trial could have affected the jury’s determination. Alternatively, he claims that there was prosecutorial misconduct in that the State allоwed the false testimony to go uncorrected.
During trial, Mary Nan West, the then current Chairwoman of the A & M Board of Regents, testified,
inter alia:
(1) that it was not her practice to seek reimbursement from the university, even when she could, and (2) that she drives to Board of Regents meetings. Margraves contends that after trial he discovered evidence tending to prove that both of these statements were untrue. He further contends
The requirements for obtaining a new trial upon newly discovered evidence are: (1) the newly discovered evidence was unknown to the appellant at the time of trial; (2) the appellant’s failure to discover the evidence was not due to his own lack of diligence; (3) the materiality of the evidence is such as would probably bring about a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching.
Moore v. State,
Margraves claims that, after West testified, he submitted an open records request to the A & M General Counsel’s office seeking copies of all reimbursement requests by A & M regents over a six year period, as well as copies of travel account statements. Upon reviewing the responsive documents, Margraves’ counsel learned that West sought reimbursement in сonnection to a trip she took just two weeks before Margraves’ ill-fated trip to Baton Rouge. Margraves further maintains that his counsel also learned after trial that West had used an A & M aircraft 28 times to travel either to or from board meetings.
Regarding reimbursements, the letter attached to the open record responses from Genevieve G. Stubbs, A & M Associate General Counsel, and attached as an exhibit to Margraves’ motion for new trial, points out that there was only one travel voucher showing direct reimbursement to West (over a six year period). This voucher is for $140 in taxi cab rides. One of the attached vouchers shows a significant cost incurred by A & M to send several regents, including West and Margraves, to Mexico, but Stubbs’ letter and the voucher itself indicate that West reimbursed the state for her portion of the trip.
The evidence demonstrating that West sought and received reimbursement on one occasion does little to contradict her testimony that it was her practice to not not seek reimbursement even when she could. According to Webster’s, a “practice” is a “[frequently repeated or customary action; habitual performance; a succession of acts of a similar kind; usage; habit; custom; as, the practice of rising early; the practice of making regular entries of accounts; the practice of daily exercise.” WebsteR’s Revised Unabridged Dictionary (1996). Missing from the definition is a denotation or connotation of “always.” Indeеd, the evidence uncovered by Margraves, if anything, supports West’s testimony regarding her practice of
Furthermore, in an affidavit attached to the response to the motion for new trial, West reiterated that her practice is to not seek reimbursement, and she stated that, in six years as a regent, the only reimbursement she can recall receiving came after Margraves turned in the receipt. It can hardly be imagined that such testimony would probably bring about a different result in a new trial.
See Moore,
Turning to the issue of mode of travel to board meetings, Margraves pins his argument on the following exchange between the prosеcutor and West:
Q. That’s how you go to Board of Regents, drive?
A. Yes, yes.
Margraves suggests that the evidence establishing that West used an A & M system plane on twenty-eight occasions demonstrates that her testimony regarding her transport to board meetings was untruthful. In her affidavit, West explained that she took the prosecutor’s question to be present tense, as it appears to be, and she answered it accordingly. She further states that if anyone had asked if she had ever flown to a board meeting, she would have answered “yes.” And then she adds, “I quit flying to board meetings when I found out how much the flights cost.” Again, it is difficult to see how such testimony or evidence would help Margraves’ case in a new trial. Contrary to his assertion, it does not demonstrate any untruthfulness on West’s part, nor does it significantly lessen the impact her testimony may have had on the jury. If anything, it demonstrates that she used the aircraft for purely A & M business (board meetings) and that she halted her use when she discovered how much it was costing the system. Although the records span from 1991-1996, Margraves admits that West’s 28 trips occurred from 1991-1994, thus lending credence to her assertion that she stopped using the aircraft while still a regent. This evidence heightens the contrast drawn by the prosecution between West’s conduct and that of Margraves.
Furthermore, the record does not support the proposition that this evidence was unknown to Margraves at the time of West’s testimony. Margraves’ defense team had copies of the relevant flight manifests in the courtroom. Thus, they not only had the evidence but they had also apрarently already identified it as important. Furthermore, West stated in her affidavit that Margraves himself possessed personal knowledge that she used the plane to attend board meetings as he accompanied her on such a trip. See
Drew,
The evidence was not unknown to the defendant at the time of trial, and the evidence does little or nothing to suggest that a different result would be reached by a jury in a new proceeding.
See Moore,
D. Civil Liability as Sole Remedy
Last, Margraves contends that the trial court erred in allowing the State to prosecute under a general criminal statute,
ie.,
However, we need not address the substantive merits of Margraves’ argument because there simply is no conflict between the two statutes in this case.
See Cheney,
The judgment of the trial court is affirmed.
Notes
. In our original opinion, we held former Penal Code § 39.01 (see Act of June 19, 1983, 68th Leg., R.S., ch. 558, § 7, 1983 Tex. Gen. Laws 3237, 3241,
renumbered and amended by
Acts 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3673), to be unconstitutionally vague in that it failed to provide fair warning as to whether criminal liability attaches when a state official engages in "mixed use” of state property,
i.e.,
a use that provides both a benefit to the State as well as a personal benefit obtained at no additional cost to the
The Court of Criminal Appeals states that: "[vjiewed in the proper light, the evidence was that the appellant’s use had no genuine government purpose ...” and "[w]e defer to the jury’s factual finding on the question of whether his trip was for personal or official business.” See id. at 916 and 921 (respeсtively). The jury, however, did not expressly make such a determination. The statute prohibits, and the jury found, a "misapplication of state property.” Whether or not "misapply” in this context encompasses "mixed usage” appears to this panel to be vague.
We are certainly cognizant of the fact that to succeed in challenging the constitutionality of a penal provision, a defendant, generally, must demonstrate that the provision is unconstitutional in application to his conduct rather than that the provision may be unconstitutional if applied to others.
See Bynum v. State,
. Indeed, the term "appropriation” is particularly relevant in discussing § 2, as most of its subsections deal with expenditures of funds to maintain, operate, or replace aircraft, or to buy insurance or reimburse for the use of state owned aircraft. Only subsection (j) deals with the criteria for use of the aircraft.
. We further note that there is no expressed or apparent public policy reason why the legislature would want to require preapproval for those flying outside Texas via a commercial airlines but would not want to require the same condition for travel on state-owned aircraft. Similarly, § 13(6) of the Appropriations Act requires advance written approval from the governor for travel outside "the United States and its possessions.” Mar-graves’ interpretation of § 20(1) as exclusive would lead to the unusual situation wherein a person wishing to fly to Baton Rouge on Southwest Airlines would have to obtain pre-approval, but a person traveling to the Bahamas on a state-owned aircraft would not need such approval.
. Margraves also appears to some extent to contend that this was improper jury argument. However, he failed to object to the argument on that basis so any such improprieties are waived.
See McFarland v. State,
. Margraves mistakenly cites to the current versions of these provisions, i.e., Tex. Pen.Code Ann. § 39.02(a)(2) (Vernon 1994) and Tex. Gov't Code Ann. § 2205.037 (Vernon 2000).
. The statute does not define "political.” Webster’s defines it as "[o]f or pertaining to public policy, or to politics; relating to affairs of state or administration.” Webster’s Revised Unabridged Dictionary (1996).