*1 635 Cоunty the insured. See State Farm Mut. Tex., (Tex.
Ins. Co. S.W.2d 1989); Murray, Am. Ins. v. Great Co. (Tex.1969) (allowing third
S.W.2d
parly liability of a beneficiaries insurance
party directly against policy to enforce the judgment securing
the insurer after insured).
agreement against the It is not a step
great priv- from abandonment action,
ity requirement adoption of direct problems
and would solve hand.
VIII precluded
I would hold Traver is pursuing his DTPA and Insurance Code against give
claims Farm and him an State
opportunity try to make a case for vicari- liability against
ous Farm. Also in a case,
proper breach contract and tortious may
interference with a contract be viable
causes of action to harm redress the caused types
in these of eases. I commend these legislature
issues to the for their consider-
ation. Texas,
The STATE of Dewayne MASON, Appellee.
Fredrick
No. 1300-97. of Criminal
En Banc.
Oct. *2 Goode, Houston, appellant. K.
William DA, Houston, McCrory, Dan Assist. Mat- Paul, Austin, Atty., thew State’s for the State.
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW HOLLAND, Judge, opinion delivered McCORMICK, of the Court which Presiding Judge, and MANSFIELD PRICE, Judges, joined. indicted unlawful with felon, pursuant of a firearm
§to
46.04 of the Penal Code. The trial court
granted appellee’s
quash
motion to
the in-
dictment, ruling
was con-
trolled
former
46.05 of the Penal Code.
appealed, alleging
The State
the trial court
prosecution of
abused its discretion because
by § 46.041 The
this offense is controlled
felony
person
"A
who
convicted
1. Former
46.05 of the Penal Code set out:
has been
possesses
commits an offense if he
a firearm:
felony
person
"A
who had been convicted of a
(1) after conviction and before the fifth anni-
involving an act
violence оr threatened vio-
versary
person’s
from confine-
property
lence to a
commits an of-
ment
conviction of the
away
possesses
fense if he
a firearm
from the
person's
supervision
release from
premises where he lives.”
community supervision, parole,
or mandato-
law.
In
amended this
later;
Now,
ry supervision,
46.04 sets out:
whichever date is
Crim.
ruling. Tex.Code
concluded
Fourteenth
trial court’s
ed the
44.01(a)(1).
prosecution is controlled
former
art.
Proc. Ann.
newly
enacted
46.04. State Ma
Ap-
argued before the Court
The State
son,
14-97-00189-CK,
No.
preted
language
of 46.04.
results,
would lead to absurd
or if the lan
guage
ambiguous,
is not
but rather
appellate
Court and the othеr
then,
only
necessity,
then
out
absolute
duty
interpret
courts of this state have the
constitutionally permissible
is it
for a court to
the laws
Legislature.
enacted
our State
consider, in
arriving
interpreta
at a sensible
Const,
II,
1;
Boykin
art.
Tex.
*4
tion, such extra textual
executive
factors as
(Tex.Crim.App.1991).
S.W.2d
interpretations
or administrative
of the stat
carry
duty,
To
out this
this Court must at
State,
history.”
legislative
Boykin
ute or
tempt to
pur
discern the collective intent or
apply
at
S.W.2d
785-786. We will
the
pose
legislаtors
legis
of the
who enacted the
principles
interpretation
above
to the
necessarily
lation. “We
focus our attention
Code,
§
§
46.04 of the Penal
as well as
1.182
question
on the literal text of the
in
statute
Bill
Senate
1067. Tex. S.B.
fair,
attempt
objective
and
to discern the
Leg., R.S.
meaning of that text at the time of its enact
reviewing
ment.” When
literal
text of
begin
We will
46.04. Former
with
statute,
this Court will read the words
proscribed possession
by
46.05
of a firearm
phrases
of the statute in context and
рersons
“away
premises”
who were
from the
“according
construe them
to the rules of
they
live and who had been convicted
grammar
usage.”
common
Tex.
felony involving
of “a
an act of violence or
311.011(a).
When the
Gov’t.Code Ann.
person
threatened violence
property.”
to
meaning of the text of a statute should have
(repealed).
46.05
The
Tex.
ANn.
Pen.Code
plain
it,
legislators
been
to the
who voted on
Legislature changed
provisions
several
of the
ordinarily give
meaning.”
“we
effect to that
adopted §
statute when it
46.04. Instead of
State,
Boykin v.
whose occurred before convictions supervision.” Texas Punishment Standards 1,1994. tember Report, Commission Final Reoommendation Legislature 8,1993). (January To 73RD Appeals The Court of this viewed literal The all 46.04, chose to include felons interpretation §of that all felons are 46.04, possession § but of a under allowed away possessing barred from firearms from years only in by a after five felon live, being they con- as lives. After the residence where felon § reading trolled literal of 1.18 of Sen- 1067, issued adoption of S.B. the Commission ate Bill 1067. 1.18 states: report. its final “The Punishment [Texas change “the law made this article originally proposed Standards] commission applies only to an offense committed on or per- expanding of to include the list felons the effectivе date of this article. For after first, capital, of and second sons convicted section, purposes of this an is offense com- degree eventually felonies. commission of mitted before effective date this prohibi- subject all to this decided to felons article if element of the offense occurs tion, legislature incorporated and the date.” before effective in all 1067.” recommendation versions S.B. 29, 1993, R.S., 900, May leg., ch. Act of 73d Commission, Texas Punishment Standards 3589, 1.18(a), As 1993 Tex.Gen.Laws 3708. 1067, Analysis, S.B. Pe- Final Bill Texas above, explained Appeals the Court of viewed Leg., P. 73rd 61. Legislation, nal Code the date of the conviction of 1993 Amendments also deleted ele- “The as element of the under an offense defendant be convicted of a ment 1994, 1, the conviction which conferred felon felony. September Since After all violent Sep- upon appellee prohibited possess- before status occurred are convicted felons 1, 1994, ing” con- firearm. B. Charlton, tember Michael appel- controlled cluded that former Criminal Law Texas Practioe: Texas (1994). 26.5, legislative history could indicted at 320 prosecution lee’s and he not be Legislature meant for all felons being of a firearm indicates the for 46.04, only § those involve vio- be covered prior his did not because 1, felons September who were convicted after an inmate was convicted sentenced to prison would he or control whether she cоuld prosecuted be under the statute. Under the distinguish, There no rational reason to analysis Appeals, would be purposes 46.04, for applicability be- inmate, that an left with absurd result prior tween felons whose conviction occurred imprisoned had who been life 1, September before 1994 and whose those imprisonment committing aggravated for prior September conviction went down after assault, sexual and who then murdered an- 1,1994. Viewing the date of prior convic- prоsecuted inmate in 1998 not be other could tion as being an element of 46.04 would capital for murder. This would contravene result in consequence omitting absurd Legislature’s prosecute any intention to all prior felons who committed their felonies ag- individual who had been incarcerated for September before coverage 1994 from the assault, gravated given sexual a maximum legislative history 46.04. The of 1.18 of sentence murdered another while S.B. 1067 reveals was written to make in prison. incarcerated It be more application would of the revisions of Penal Code prudent only reasonable and to conclude that prospective. CenteR, Senate ReseaRch inmate defendant’s status as an convicted ANALYSIS Enrolled Legislation, Bill proscribed one offenses constituted Leg., S.B. R.S. This should 19.03(a)(6), thereby making element posses- mean that all felons who are found in eligible prosecution the defendant sion of a September firearm after cаpital murder because murdered the he oth- would be 1,1994. er after inmate regardless of they when received all, their conviction. After the commis- In Abuse of Office offenses set out in sion of the offense and the formation of Code, Chapter 39 of Legisla- the Penal *6 appellee’s together criminal intent came public out criminal for ture set conduct which upon felon, alleged which a appellee, date public prose- servants and officials could be рossessed firearm, upon date § cuted. 39.02 sets the offense of down Abuse in appellee 1991 when became a felon. We Capacity public which Official under ser- only appellee’s conclude that status as prosecuted engaging be vants can for in cer- 46.04, § upon is an element of not the date tain with to behavior the intent obtain a which the conviction occurred. person. benefit or harm or another defraud comparison A § between 46.04 and other § sets out Op- the offense Official supports statutes in revised Penal Code pression public for which a servant who acts this conclusion. color engages under the of his or her office in § read Court can 46.04 within the harass, mistreat, with behavior the intent to provisions context of other revised impede or in pro- another certain Penal Code. Tex. Gov’t.Code Ann. ways prosecuted. § scribed can be 39.04 de- 311.011(a). statute, § the capital In murder scribes offense of of the Violations Civil Legislаture prison made certain inmates Rights Custody of Person in under which an subject prosecution capital to for murder if employee or official of a correctional institu- they person. murdered another Tex. Pen. prosecuted intentionally tion can be deny- for 19.03(a)(6). Only § those inmates Code Ann. ing impeding person custody or in in exer- who are for incarcerated an offense under cising enjoying any right, privilege or 19.02, § serving 19.03 or or are a sentence immunity. § 39.06 the offense describes imprisonment of life or a term of for Misuse Official Information for which a 20.04, 22.021, an offense under public prosecuted can if servant be he or she subject prosecution to 29.03 are under the misuses information that has not been made 19.03(a)(6)(A) statute. Tex. Pen.Code Ann. 39.02(a); §§ public. Tex.Pen.Code Ann. &(B). 39.06(a). 39.03(a); 39.04(a); It would be apply reasoning If Legislature of the to conclude were to absurd intended upon in prosecutions this case to for the date which a defendant attained 19.03(a)(6), upon рublic under then the which public date his or her status as a servant or to the trial cause is remanded official to an element of the set out versed. This be above Yet, just prove offenses. as must court. the State public trial at when defendant became J., KELLER, joined opinion of the public servant or official in order to establish concurring opinion in which Court and filed public public
their as a status servant WOMACK, JJ., joined. BAIRD and official, prove the State must also when a 19.03(a)(6) capital defendant re- murder J., with MEYERS, the result concurred in rise giving ceived his or her conviction a note. their confinement. OVERSTREET, J., in the concurred hypothetical These no situations are differ- result. prove having ent the State MEYERS, Judge, judgment in the concurs appellee ease when was convicted of the of- “The with the note: the Court him fense which made a felon support plain language of the statutes 46.04. the State Because majority. Agreeing holding of with prove at must these facts trial estаblish a Keller, however, “Boykin forbids Judge eligible prosecution, defendant’s status as matters,” inquiry ... into extratextual this does not convert those into ele- facts only.” Keller, J., I the result at concur proscribed of the ments offenses. con- cept of element of an offense “does not in- KELLER, Judge, concurring. every clude issue to which the State has the interpretation I do believe include, proof; burden of it does not requires a addressed in this case statutes example, jurisdiction.” vеnue or Michael history. legislative As we noted in resort to B. ChaRLton, Texas Practioe: Texas Crimi- may not Boykin, appellate an court consider nal Law statutory interpreta- extratextual factors ambiguity or absurd results. tion absent Legislature did not We conclude Boykin v. 785-86 for the intend conviction to lan- (Tex.Crim.App.1991). I think Instead, be considered element of 46.04. ample guage provides of these enactments we conclude intended for guidance for the of the ease befоre resolution only a a felon to be defendant’s status as us. Therefore, element of was *7 provided of Bill 1067 to under 46.04. 1.18 Senate We Section code, changes penal the quashing sweeping court the to conclude the trial erred that 1, 1994, only applied appellee’s ground.3 on to indictment this effective judgment Appeals the is committed after that date and that re- offenses Appellee argues responding put the 3. also to him on notice State was his brief conclude 46.04(a)(2). discretionary petition proceeding review that under indictment State's quash alleged appellee trial to court’s decision his indictment that intentionally, unlawfully, was correct for another reason not mentioned and there "did then the Court of or the trial court. There- knowingly possess at a location other than and fore, appellee argues the trial court’s decision premises he at the time a the firearm, lived reject upheld in the event we should be prior and to said analysis ap- of the trial court and court finally had convict- firearm the Defendant been peals. Appellee that the State’s indict- contends felony, namely, Burglary a Motor ed of put theory ment failed to him on notice which Vehicle, in the 184th District of Harris case, going proceed upon was in this the State County, Texas in cause Number 592725 on 46.04(a)(1) (2). disagrees. This Court 10, July 1991.” the State included in the indictment First, The fact that authority support appellee no his cites allegation possessed explicit that argument, causing argument inade his to be State, away from where he lived quately 216, v. 851 S.W.2d briefed. Robinson allegation prior implicit that the was and the (Tex.Crim.App.1991). 222 Therefore this effectively placed appellee old over five argument preserved appellate was re 869, (Tex. proceeding was under notice that the State view. v. Rezac 46.04(a)(2). appellee’s This Court concludes Crim.App.1990). Second, support ground the decision though appellee's indictment alternative even word, quash merit. the indictment is without track the statute word for does not “an offense is committed before notes, the effective majority correctly home. As the while date of this if any article petitioner’s element of previously status as a convicted offense occurs offense, before the effective date.” felon was an element of the the date 29, 1993, May Act of Leg., R.S., previous ch. convictiоn was not.1 The plain language Tex. Gen. Laws 46.04 makes this clear. provision ambiguity previous wholly leaves no The date of the or ab- conviction is surdity; only case, question irrelevant remaining except to the State’s is to the whether the prior date of the extent that it prior offense is an must have occurred to the possession. element of the offense under Nor do these two statutes considered in provides Section 46.04 that tandem lead to an absurd result. The result persоn A who has been convicted of a majority considers only absurd would felony commits an if possesses offense he follow from assumption that the date of firearm: conviction is an element of the (1) after conviction and before the fifth offense. As the language §of 46.04 anniversary person’s release from support assumption, does danger no confinement conviction of the fel- Therefore, of an absurd result Boy- exists. ony person’s or the fromsupervi- any kin inquiry forbids further into еxtratex- sion community supervision, parole, tual matters. mandatory supervision, whichever date later; comments, join With opinion these I the Court. (2) period after the described Subdivi- (1), sion any location other than the WOMACK, BAIRD join. JJ. premises at which lives. (Vernon Tex. Penal Code Ann. 1994). petitioner in this case was charged under subdivision As the State “ out,
points penal provides code ‘el- (A)
ement of offense’ means the forbidden (B)
conduct; (C) required culpability; result; (D) required negation any exception to the offense.” The Court of The STATE of Appeals properly noted thе “has been con- felony” victed of a requirement §in falls under the heading “conduct” as a “cir- SAUCEDA, Jr., Appellee. Jaime surrounding cumstanee[ ] conduct.” 672-97, Nos. 673-97. Mason, 14-97-00189-CR,
State v. No. slip op. at 1997 WL (Tex.App. *8 —Hous- Criminal 1997) ton (citing [14th Dist.] Caballero v. En Banc. (Tex.App. —El Nov. refd). such, pet. Paso As the elements petitioner offense with which was charged were:
(1) petitioner felon, awas
(2) petitioner possessed a firearm outside
his home. is, day That offense, petitioner felon,
must have been a convicted and he possessed
must have a firearm outside his 46.04(1) sion) charge (criminalizing 1. While a might arguably require proof specific of a possession by conviction, a felon in his home within five date of we are not faced with that supervi- of release question from confinement or here.