*1 appeals to consid- cause to the court trial court to sub When a refuses remaining points of error. instruction, question er Mandlbauer’s requested mit a request was rea appeal is whether the on necessary
sonably enable proper
render a verdict. See Tex.R.Civ.P. Bros.,
277; Wagnon, Brookshire Inc. v. (Tex.App. Tyler — Further, instruction no for an pet.). (1) jury; assist the proper,
to be must (3) law; find accurately MARGRAVES, Appellant, Ross D. pleadings and the evidence. support 278; European Cross Tex.R.Civ.P. Criswell, Ctr., Ltd. v. Shopping roads’ of Texas. STATE writ (Tex.App. — Dallas 1354-99. No. denied). Texas, Appeals Court of Criminal try plead did not Mandlbauer En Banc. theory. The producing under a cause case producing mention charge itself did not Dec. question terms
cause but submitted Mandlbauer did not “resulting from.” Here, the
object charge. TWCC Panel, plead own Mandlbauer’s charge
ings, the current in terms of the causation issues
describe from,” producing not cause.
“resulting 401.011(26). It is not
See Tex.Lab.Code to define of discretion refuse
an abuse Thus, the charge.
term not used its discre refusal was within
trial court’s incorrectly
tion, appeals and the court of trial case for a new based
remanded this
on this reason. court of also hold that
We stating that “all costs mandate
appeals’ the Fund against assessed appeal” limit because it does ambiguous remand. The court appeal
costs to as appeals generally has discretion appeals’ subsequent court of costs
sess But in this instance
proceedings. include be read to mandate could
court’s that this appeals in the court of
the costs pay. Our Mandlbauer ordered against today awards all costs
judgment Under Texas appeals. for all
Mandlbauer 59.1, without Procedure Appellate
Rule of reverse the
hearing argument, oral remand judgment appeals’
court of *2 Kirk, Austin, Hill,
Terrence W. L. John Jr., Houston, appellant. DA, Paul, Turner,
Bill Bryan, Matthew Austin, Atty., State’s for the State. J., WOMACK, delivered the McCORMICK, P.J., the Court which MEYERS, MANSFIELD, KELLER, HOLLAND, KEASLER, JJ„ joined. the Chairman of Regents. Texas A & M Board of He was charged by Mis- indictment Official conduct for A M Texas & Universi- ty System airplane to his son’s attend graduation ceremony Louisiana State (L.S.U.). trial, Penal was in effect. five-day 39.01 of the Code University After in October convicted the read: portion relevant accepted agree- 1996. The trial court (a) an servant commits offense punishment and set parties ment of the if, or with with intent to obtain benefit *3 pe- for a years’ probated confinement four another, he harm or defraud intent to fine, $1,435 $3,000 years, and riod of four knowingly or ... intentionally The moved for in restitution. denied, trial, ap- and new which (2) belong- of value misapplies anything Appeals. of to the Fourteenth Court pealed has come ing government to the by virtue custody possession into or ap Appeals The of reversed Court State, employment.1 of his office Margraves v. pellant’s conviction. 290, (Tex.App . —Houston retitled, renumbered, stat- and amended 1999). The court found that Dist.] [14th September ute was to effective on become legally insufficient sus- the evidence was 1994,2 1, applicable it was not but of course Margraves, 996 S.W.2d tain a conviction. appellant's conduct. It that the official mis- at 302. also held unconstitutionally toid conduct statute Appeals’ opinion mistaken- The Court of The State vagueness. Id. 304. the new statute. quotes and then cites to ly discretionary review on both petitioned is not a Appeals’ opinion The Court issues, are asked to granted. which we We statute, although at first review of the new Appeals erred decide whether the Court other- might citations indicate glance its by adopting review legal-sufficiency in its that it is an reading A close reveals wise. facts, dis- version of the however, statute, of the old interpretation with the notion agreeing simply error to be and we consider this reject exculpato- entitled citation mistake. evidence, appel- reweighing the ry “conclusively find that it lant’s evidence to any mentions feature opinion The never theory. We are established” his defensive attempt nor of the new does Appeals asked whether the Court also any of interpret it. It does not address that the statute was holding in was correct amended statute.3 language new unconstitutionally vagueness void for citations to the simply replaces If its one We reverse appellant. to the old, the citations to the new statute with remand. analy- the same and its opinion would read be no different. sis would I. charge recognized that “the The court 4, 1993, August when
On misapply apply as ‘to offense, defined the term former Section committed R.S., 19, 1983, belonging govern- thing value to the Leg., er 68th 1. See Act of June thing 3237, general "any 7, replaced the more ment” § Tex.Gen.Laws 3241. ch. government.” belonging value and amended 2. The statute was renumbered defines "misuse” The amended statute R.S., 19, 1993, Leg., June 73rd the Act of contrary agree- dealing property to: an 1.01, 39.02, 900, § 1993 Tex.Gen ch. sec. public servant holds which the ment under title of the offense 3673. The new Laws employment or property; a contract of Capacity.” law, servant; Official was "Abuse of of a oath of office September effective on amendment was provisions Appropri- including of the General id., 1.19, Tex.Gen.Laws 1994. relating government specifically ations Act custo- property, prescribes the manner of disposition property; or a limited dy is delivered purpose for which changes were that the only material 3. (2000). § 39.02 See Tex.Penal Code replaced by the term received. “misapply” was term at issue in the "misuse,” things that are of value added to the in- "or defraud” was examples harm, all of the appellant’s case fit one or "government terms tent services, definition. either listed and meet personnel, or oth- property, wrongly spend requisite specific or to misuse or without forms the intent at the ” proper authority,’ id. at which is the misusing outset or the course of or after provided definition under the old any thing belonging govern- of value statute in Talamantez 829 S.W.2d ment”).5 (Tex.Cr.App.1992). The Court construed the mis- term,
Appeals also identified the correct 39.01(a)(2) element of section application “misapply,” several other instances require prove beyond throughout opinion.4 points, At other (1) appel- reasonable doubt that either “misuse” of “mis- uses instead lant conducted no business on his apply,” but this alternation is consistent *4 appellant proper- used state interpretation with our of the old statute business, ty personal for both official and under Talamantez. a “mixed use” which the court termed We view these mistakes the Court of scenario, and the state incurred additional Appeals simple to be citation and errors costs the personal portion due to of the assumption appellant not an trip. Margraves, at 996 S.W.2d 299. convicted under the new statute. We adopted appellant’s argument court judicial think that most efficient course proved because the had not State is to review the ifas the Court of beyond a that the appel- reasonable doubt proper had cited the lant had conducted no state business while that our decision will be the same as if it trip, had. on his or that the state had incurred additional costs due to his busi- II. ness, the evidence was insufficient to sus- Before we can evaluate the Court tain his conviction. Id. at 302. of Appeals’ holdings that the evidence is argues The State that this construction
legally insufficient or the statute is uncon misapplication element of section stitutionally vague, we must state the 39.01(a)(2) permit would a state official to proper construction of former section personal trips take unauthorized without 39.01(a)(2). In this case the terms of the fear of can prosecution that official required prove, among State to up any dream state that might he other things, that the appellant harbored pursued trip. appellant have on his the intent to obtain a benefit for himself responds that the alter- Appeals’ Court and that he misapplied government prop nate construction statute constrains erty to obtain that benefit. The intent abuse, in possibility that from such may element during be satisfied before or necessarily incur acts the state would addi- misapplication state Talamantez, (“one expenses permit prosecu- 829 at tional that would S.W.2d en in gages official misconduct whenever one tion. ("[the] appellant
4. See at thetically jury charge misappli- id. was indicted correct for the 39.02(a)(2), provides under section which property cation of state under section if, public servant commits an offense with 39.02(a)(2)”); ("section 39.02(a)(2), id. at 304 benefit, intentionally the intent to obtain a only generally misap- which criminalizes knowingly misapplies anything of value plication property.”). of state belonging government has come custody possession by into his office.”); virtue of his Talamantez, 5. The in that the intent dictum ("The provides id. at 299 indictment element be satisfied after the conduct appellant that [the] ... then and there [d]id misapplication, that amounts to the is not intentionally knowingly, the intent accompanied by any explanation this of how misapply obtain benefit ... a Texas A & M rate, may happen. anyAt this case does University System’s aircraft which awas it at raise the issue and we decline to resolve thing belonging government of value this time. custody possession by that came into his office’’); ("the hypo- virtue of his id. at 302 in was no first con a “mixed use” which there ex- Appeals’ 39.01(a)(2) pense struction of section to the state from —that prove “meeting with his ten minutes after requires son for conducted no business— graduation.” Margraves, state at precedents interpreting the conflicts with convicted 301. The was not In Tala- meaning “misapply.” of the term meeting for misapplying property state mcmtez, gave “misapply” son, this Court He was with his however. convicted meaning: apply common “1. to statute its taking misapplying property state (as spend public ... 2. to wrongly misuse or airplane to cere- graduation state his son’s money proper authority).” without Tala- construc- mony. Even when the alternate mantez, serv used, the inquiry tion is correct whether misapply government property ant can expense additional there was purposes. it is used official even when from the and his wife’s airplane paying the state instead of Smith, Hightower In State ex. rel. on a private tickets carrier. (Tex.1984), S.W.2d 32 the state Hightower county issue was the use validity of the alternate construction in that vehicles and fuel. The defendant *5 evidence does is made moot because the sheriff, case, county accepted a a rent- had justify Appeals’ assump- the Court of not In live. apartment free which he did not appellant’s airplane the tion that the use of or- apartment, return for the the sheriff proper use.” in the was a “mixed Viewed security for checks-in-passing dered extra light, the evidence was that the complex. apartment Supreme The genuine government purpose, had no use prosecution is Court considered whether jury explain It is for below. ar- permitted when the unauthorized use purpose of decide whether the intended guably public, also benefits and it held misappli- rendered misuse or it a from public misapplication that benefit of state The Court of cation defen- property of state does not shield a that official cannot Appeals public held “a “Willfully us- liability. dant from criminal for of prosecuted a mixed use state ing property] private [state benefit conclusively where property the evidence misapplication misappropria- constitutes that of state establishes the use tion, though activity consti- even same .” both the individual and benefits legitimate public High- function.” tutes (italics at 302 omit- Margraves, S.W.2d tower, 671 S.W.2d conclusion, ted). however, To reach this Appeals’ con- alternate Appeals Court to assume that had Court in a business, struction of the statute was that if it were any act of official even scenario, sham, use” in which a “mixed a trivial act or would constitute government property servant used such a blanket Transposing mixed use. purposes, government both into the official misconduct rule prove prosecutor required would be by terms of not dictated agree expense to the state. We by additional to be unwork- and is shown this case had no this case there been able. the state expense to from misapplica- have
trip, there would
been no
III.
con-
Further consideration of this
tion.
proper
Having explained the
con
however,
necessary
be-
struction is not
we consider the
struction
apply
not
the facts of
cause it does
sufficiency review.
Appeals’ legal
Court of
case.
Appeals
the facts
reviewed
The Court
Analysis
comparing
“Appellant’s
Appeals
by
its
found
Evidence,”
996 S.W.2d at
Margraves,
the statute had
alternate construction of
Analysis
presented
against
been met because this case
“State’s
Evidence,”
outset,
id. at 296. From the
he was
the stage,
where
seated on
but he
this was in
A “legal sufficiency
error.
of did not make the commencement address.
evidence
any
review does not involve
points
out that this reservation
weighing of
favorable
non-favorable was made four months before the ceremo-
State,
evidence.”
Cardenas
returned,
ny, and
after he
he claimed
Instead,
(Tex.Cr.App.2000).
legal-
that he had been invited to be a com-
sufficiency
upon
review calls
the reviewing
In
speaker.
mencement
a memo that he
court to view the relevant evidence in the
Mobley
reporter
sent to Dr.
after a
had
light most favorable to the verdict and
negative story
written a
his trip,
about
determine whether
rational
trier of
appellant
stated that “I
was invited
fact could have found the essential ele- Chancellor of L.S.U. to ...
remarks
bring
beyond
ments of the crime
a reasonable
graduates
at their commencement.”
doubt.
Virginia,
See Jackson v.
443 U.S.
speak
graduates,
did
99 S.Ct.
n witnesses,however, ap- president testified that the and the athletic director. The pellant appellant to fly any needed with his wife to have did not seek out other face- meeting with meetings any presidents a face-to-face with Dr. Davis to-face subject, they thought or that other up about schools that made the S.E.C. appellant flown with in- When did and up, that had the S.W.C. break Texas joined A & the Big Eight tent to conduct state business rather than M Conference S.E.C., graduate. appellant his son rather than the to see did president not meet with or chancellor argued The State that the Big of any Eight’s schools. The go did not to L.S.U. to have appellant highly State contended that unusual these discussions but went watch his discussion nature of with theory, graduate. son Under this the dis- Dr. that not conduct- Davis showed he was Dr. merely cussions with Davis were after- ing during the official state business meet- actual thoughts trip’s purpose or ing. pretext disguise true were meant to his support theory, the appel- intent. To its the State There was also evidence that explanatory get showed that memo to lant’s claim that he needed to financial Mobley, exagger- Dr. claimed he about the information S.E.C. with Dr. trip. had met Davis his office for an ated to excuse his Texas & Ath- half. A M hour Dr. Davis testified State showed informally already they did meet and discussed letic Director had this information matters, meeting anytime, only updated these but the could have need- minutes, ed, thirty forty-five although phone call. The with they did have lunch afterward. Dr. Davis showed as Chairman of the Board’s an appoint- “point-man” said that he had not Athletic Committee and scheduled breakup, meet with vested appellant, ment to S.W.C. he was with A & special oversight he did not and could not have had official of the Texas M appellant, doing Department, discussions so Athletic and that dis- Dr. protocol. breakup would have breached He the S.W.C. with Mob- stated cussed advantage ley argued that he wanted to take after he returned. He *7 conversation, trip graduate to his son to and the fact that the Board appellant’s see friendly, expenses Regents approved trip have a informal conversation with his af- returned, proved him the interest from ter that he had been about level of Texas S.E.C., joining conducting A & M the and that the official state business however, place this meeting trip. accept argument, would not have taken had To that we the appellant’s graduating require ignore the son not been would evidence day. proper- have that to jury misapply that could found that he intended state ty plane. informal was not the mo- when he reserved the We would conversation also memo from the tivating appellant’s trip. reason for the have overlook the Dr. Davis wrote appellant to that he after discrepancies In addition the sur- he returned which he claimed have rounding the circumstances the meet- speaker. commencement been the ing, jury ap- the heard evidence that the In pellant exaggerated importance reweighing appellant’s evidence of its in- it his defensive showed that the find that established substance. mistakenly join had been formal- theory, vitation to the S.E.C. years accepted A M a version what ly extended Texas & few and his appellant’s trip. And occurred on his to L.S.U. before the State The court taking trip. was that appellant showed that reasons for appellant “indisputably person at Texas A M who would have found that & and official state alignment; ha[d] the conference both a negotiated the aircraft. use job purpose” been for his would have the school
919 added); id. at 300 (emphasis see also id. at guilty knowledge “required fendant’s is not (“there n. 4 overwhelming evidence of rigorous to meet the same criteria for suf official business trip”); ficiency conducted on this proof as circumstantial of other (“the State, id. at 302 conclusively evidence es- offensive elements.” v. See Brown tablishes that use property [this] of state (Tex.Cr.App.1995). 911 S.W.2d 747 state”) benefits both the individual and the “It not necessary that this Court find to added). (emphases That discussions of is- its own appel- satisfaction that such was sues of some concern to the state enough were lant’s intent. It is to find for us appellant’s trip conducted on the is insuffi- ‘any’ jury rational could have so found cient for a court to appeal beyond overturn on Brimage reasonable doubt.” v. jury’s finding State, had mis- 918 (Tex.Cr.App. S.W.2d 476 1994). in taking trip. By the very nature of his position, appellant argues jury appellant could always converse with an- not entitled to find the elements of the high-ranking other school official about offense simply by rejecting important matters to the university sys- exculpatory evidence. He refers us to the tem, presented and the State evidence that State, cases Gold v. this conversation did ap- not motivate the State, (Tex.Cr.App.1987) Wright v. pellant’s trip. The State contended that (Tex.Cr.App.1980) S.W.2d for this this state business either was fabricated proposition. These cases hold that disbe- outright or exaggerated to conceal the lief of a exculpatory defendant’s evidence appellant’s true arguments intent. Both does not relieve the State of its burden to presented were jury to the supported prove the elements of the offense. But in by evidence, jury rejected evidence, this case there was beyond skep- appellant’s claim that he went to L.S.U. appellant, ticism toward the that he took conduct official state business when it con- the airplane go see graduate his son victed him. rather than to conduct official state busi- jury was free to infer from the ness. State’s evidence har- say We cannot that under Jack bored an intent to personally benefit from son the evidence presented jury the use of the airplane when he reserved permit insufficient to jury to convict it, and that he had an fabricated invitation appellant. “The is the exclusive to be a speaker commencement when he judge credibility of witnesses and of later explained his use plane weight given to be testimony,” their Texas A M& President. Cf. Wolfe (Tex. Barnes v. *8 State, 270, 917 S.W.2d (Tex.Cr.App. 275 Cr.App.1994), and “reconciliation of con 1996) (ruling that an intent to steal flicts in the evidence is within the exclusive evidence). inferred from circumstantial province State, jury,” of the Losada v. 721 jury was also accept free to (Tex.Cr.App.1986). S.W.2d 309 argument State’s did not jury may choose to testimony believe some go to to L.S.U. discuss matters concerning testimony. disbelieve other Ibid. and the S.W.C. invitation of the S.E.C. enough There is testimony sup credible to but instead went to watch gradu- his son conviction, port ate, and that discussion about conviction (quoting stands. See id. Maed alignment of the exagger- conference was State, gen v. 132 Tex.Crim. 104 ated or incidental to trip. (1937)). S.W.2d 519 review, sufficiency
In a jury’s IV. inference of intent is afforded more defer ence than the evidence supporting proof of Finally we address the conduct. Circumstantial evidence of a de- Appeals’ holding that former section
920
39.01(a)(2)
attempts
for
limit
unconstitutionally
opinion
vague-
void
then
to
its
vagueness.
“strictly
it is
Margraves,
holding
stating
See
ness
that
39.01(a)(2)
have been
facts
Ibid.
304. For section
to
limited” to the
case.
unconstitutionally vague, the
would
statute
hold
Despite
opinion’s broad
give public
need to have failed to
servants
39.01(a)(2)
ing,
section
does not
because
ordinary
...
intelligence
“of
a reasonable
implicate constitutionally-protected
con
opportunity
pro-
to
is
[conduct]
know what
duct,
only
need
determine whether
hibited” and have failed to
det-
“establish
is
as
to
vague
appel
statute
guidelines”
enforcing
erminate
for
conduct,
vague
lant’s
it is
whether
State,
statute,
Long
see
S.W.2d
State,
face.
its
Cain v.
See
S.W.2d
(Tex.Cr.App.1996).
714, 717 (Tex.Cr.App.1993).
Although
Appeals attempt-
the Court of
that
The Court of
held
the stat-
holding
ed
limit its
that
statute was
prongs
vagueness
ute fails both
of the
case,”
vague
only
“to
facts of this
analysis.
It held
the statute failed
appellant, the
holds
opinion
servants,
specifically the
give
generally vague
the statute is
pro-
appellant, notice of what conduct was
“mixed use” situations. The first instance
engaging in a “mixed
hibited when
use”
opinion attempts
where the
to limit its
and it
held
it
property,
state
also
part
vagueness analy-
holding was not
of a
personnel
to give
failed
law enforcement
sis of the
but
criticism
adequate guidelines in such
scenario.
jury charge
incorporating
for
A & M’s
Margraves, 996
See
S.W.2d
304.
regulations.
Margraves,
internal
See
permitted
court
that the statute
reasoned
(“The
provides
at 304.
statute
no
5.W.2d
arbitrary
discriminatory prosecutions
vio-
encompasses alleged
notice that
also
innocently,
who
“public
may, quite
officials
regula-
lations of Texas A & M’s internal
mix
while
matters
Accordingly,
tions.
we hold
section
Id.
conducting
business.”
at 303.
39.02(a)(2)
vague
unconstitutionally
case”).6
determining
After
applied to the facts of this
Before
that the statute
Bynum v.
disapproving
vague,
of the contents of the
court stated that
charge,
(Tex.Cr.App.
opinion
holds that the statute
773-74
1989),
generally
hypotheticals
for
are not used
unconstitutionally vague
held that
failing
provide
adequate guide-
vagueness.
a statute for
See
analyzing
notice
Margraves,
This is a
any public
lines
its enforcement when
Bynum,
Perhaps
Grayned City Rockford, range third-degree v. of U.S. of 15, 2294, changes by Legislature 110 & n. 222 ter in the 1993 S.Ct. 33 L.Ed.2d (1972). session, definitions, § 39.01 became § former 39.01 was renumbered duty distinguish We note that 39.02, § and “Official Misconduct” became expenses between changes Capacity.” “Abuse of Official long has familiar to who or been those own 1994, 1, September became effective on a run business and their tax file returns. year than one after slightly more See, States, e.g., Komhauser United newly- offense charged occurred. The 219, (1928) U.S. 48 S.Ct. 72 L.Ed. offense reads: named now (holding expense] against [an that “where (a) public A servant commits an offense taxpayer directly with ... connected or if, intent or with to obtain benefit from, business, proximately resulted his another, to harm he intent or defraud expense incurred is expense a business intentionally knowingly; or act.”). meaning within of ... It is great imposition public not a officials (1) (cid:127) (cid:127) (cid:127) charge ask them to not the state for their (2) government ser- misuses personal trips. Because we do not find the vices, personnel, any thing or other vague appel- belonging govern- value of conduct, point lant’s we sustain State’s into public ment that has come of issue. error on the by custody possession or servant’s virtue of servant’s office public opinion Accordingly, reverse employment. or the Fourteenth Court of and re- mand court for the case action alleged Under the new the amount opinion. consistent with this falls A range into the of Class misde-
meanor. JOHNSON, J., concurring filed a It apparent from the opinion. appeals court of rather than appel- which version of the statute under PRICE, J., concurs in the result. convicted, lant it used the was indicted and JOHNSON, J., concurring. analy- current version of the statute in its Appellant under charged passed former sis. This version of the 39.01(a)(2). § At the time by legislature in 1993 became ef- Tex.Pen.Code alleged criminal conduct took no September 1994.. This is fective place, that section was titled “Official Mis- I am unable discover mere “mis-cite.” conduct” read: anywhere appeals’ opinion court version of the stat- citation correct
(a) an offense servant commits ute. if, with intent to obtain a benefit or with another, intentionally
intent to harm begins by court of discuss- appeals knowingly: for official mis- ing appellant’s conviction (Vernon 1994). 39.02(a)(2) § conduct under (1) (cid:127) (cid:127) (cid:127) 290, 292-3, Margraves v. misapplies thing value be- 1999). (Tex.App. [14th Dist] government that has longing — Houston 39.02(a)(2) statute, § Under former custody possession come into in the cur Oppression,” while “Official employ- virtue his office version, Capac it is of Official rent “Abuse ment. ity” R.S., Leg., Act of ch. May 68th as the court confusion continues 1983 Tex.Gen.Laws indict- is a appeals indicates that offense plead an amount loss to the
ment The former 39.02 placed charged third-degree felony. Texas which offense *11 misdemeanor, “any Class is the thing as the list with other of value.” § current 39.02. The alleged offense under in change the current statute thus was, fact, § the former 39.01 in a third- merely appears specific things to list degree felony. subject which are of value and to misuse materially and does not alter mean-
Further evidence of
of
use
the incorrect
ing of the former statute.
version of the
appears
in the court
appeals’ analysis
issues,
of
in which
(3)The
change
last
converts “his” into
it sets out the
construing
statute that it is
“the
in
places.
servant’s”
two
quotes
the text of the current version
appears
This also
to be clarification
39.02(a)(2).
§of
Margraves, 996 S.W.2d
rather than a material alteration of the
at 299. This is error. The
then
issue
statute.
becomes
requires
whether such error
I therefore believe
because the vari-
remand
appeals
to the court of
to reconsid-
changes
ous
did not materially alter the
analysis
er its
under
proper
statute.
statute,
analysis
of the court
ap-
(a)
Paragraph
of each statute differs
peals, which used the incorrect version of
from
only by
the other
the addition in the
would have been no different
current version of the words “or defraud”
under the
may
correct statute. We
there-
to the original phrase, “to harm.” “Harm”
fore
appeals’s
review the court of
decision
1.07(25)
§in
is defined
as
rea-
“anything
remanding
without
the cause to the court
loss,
sonably regarded as
disadvantage, or
appeals
re-analysis
under the correct
injury, including harm
person
to another
in
statute. For the reasons stated in the
whose
person
welfare the
affected is inter- majority opinion, I agree that the evidence
ested.”
many
“Defraud” is used in
crimi-
was sufficient to sustain the conviction.
statutes,
nal
conjunction
most
in
often
Appellant also raised
question
“harm,”1 but is itself not defined. We are
unconstitutionally
whether the statute was
therefore to use the common meaning.
vague
applied
as
to him. The court of
311.011(a).
An
in
entry
Tex.Gov’t Code
appeals spoke
general
in
of terms of what
gives
thesaurus
synonyms
of dupe,
must be shown
before
swindle, cheat, or deceive. Webster’s New
declared unconstitutionally vague. Mar
(3d ed.1997).
World Thesaurus “De-
graves,
misuse listed the thesaurus as a context, i.e., in a mixed-use that misuse synonym misapplication. proved only can be in a mixed-use context Webster’s New World Thesaurus by proof personal portion of the (2) The earlier “any trip statute includes resulted additional costs to the value;” thing the current statute lists propor- no matter the intent or the specific things of value and concludes tion to business use. Id. at 32.21(a) (defraud harm), 32.22(a) (defraud harm), 32.49(a) (defraud §§ 1. See or or or (defraud harm), 32.34(b)(2),(3) (defraud harm), 32.51(b) (defraud harm), 35.02(a), or or harm), 32.46(a) (defraud harm), 32.47(a) (b) (defraud deceive). *12 299-302. Those definitions led to holding
court of that the statute appeals’ unconstitutionally vague be-
cause the statute did not criminalize appeals’
court of definition of mixed use Id. at 303-04. majority found fault with the has appeals’s
court of view of “mixed use” determining misuse standard “action [its]
remands for consistent with Rather is-
opinion.” addressing than constitutionality ap-
sue now,
pellant I believe that it would
better cause to the court to remand this issue,
appeals for reconsideration appropriate definitions stan-
dards, appeals the court of after reconsid- I holding
ers its issue of misuse. recognize
also there an credible
argument addressing the issue time,
constitutionality major- at this as the done,
ity judicial has use of re- efficient
sources. judgment
I of the Court. concur Texas, ex rel.
STATE of HILL, Relator,
Bill THE OF APPEALS FOR
COURT DISTRICT,
FIFTH
Respondent. 73,938.
No.
Court of Criminal of Texas.
Jan.