Baumgart, Eric L. ( 2015 )

PD-1358&1359&1360&1361-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/25/2015 9:25:04 AM
Accepted 11/25/2015 11:37:04 AM
ABEL ACOSTA
NO. PD-1358-15 CLERK
NO. PD-1359-15
NO. PD-1360-15
NO. PD-1361-15
_____________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
_____________________________________
APPEAL FROM THE FOURTEENTH COURT OF APPEALS OF TEXAS
NO. 14-14-00307-CR
NO. 14-14-00308-CR
NO. 14-14-00309-CR
NO. 14-14-00310-CR
_____________________________________
Eric Lynn Baumgart
Appellant
VERSUS
The State of Texas
Appellee
_____________________________________
PETITION FOR DISCRETIONARY REVIEW
_____________________________________
Respectfully submitted by:
Michael D. Gillespie
Texas Bar Card No. 07926500
November 25, 2015 226 Sheldon Road
Channelview, Texas 77530
Tel. 281-457-9999
Fax. 281-457-0990
Email: 226sheldon@gmail.com
Oral Arguments Requested Attorney for:
Eric Lynn Baumgart
Appellant
IDENTITY OF THE PARTIES AND COUNSEL
Trial Court Judge: Honorable Judge Jay W. Burnett
Appellant: Eric Lynn Baumgart
Counsel for Appellant: Michael D. Gillespie
Texas Bar Card No. 07926500
226 Sheldon Road
Channelview, Texas 77530
Tel. 281-457-9999
Fax. 281-457-0990
Email: 226sheldon@gmail.com
Counsel for Appellant: Michael D. Gillespie
(Court of Appeals) Texas Bar Card No. 07926500
226 Sheldon Road
Channelview, Texas 77530
Tel. 281-457-9999
Fax. 281-457-0990
Email: 226sheldon@gmail.com
Renato Santos, Jr.
Texas Bar Card No. 17646450
*Former court appointed attorney.
3605 Katy Freeway, Suite 102
Houston, Texas 77007
Tel. 713-862-9631
Fax. 713-862-9647
Email: renato.santos3@att.net
continued next page
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IDENTITY OF THE PARTIES AND COUNSEL
Counsel for Appellant: Eric Lynn Baumgart
(Trial Court) Pro se
PO Box 613
Nome, Texas 77629
Tel. 409-338-1661
Fax. 281-457-0990
Email: eric.baumgart@texasinvestigations.us
Michael D. Gillespie
Texas Bar Card No. 07926500
*Co-counsel.
226 Sheldon Road
Channelview, Texas 77530
Tel. 281-457-9999
Fax. 281-457-0990
Email: 226sheldon@gmail.com
Appellee: The State of Texas
Counsel for Appellee: Lisa C. McMinn
(Final Appeal) Texas Bar Card No. 13803300
State Prosecuting Attorney
PO Box 13046
Austin, Texas 78711
Tel. 512-463-1660
Fax. 512-463-5724
Email: lisa.mcminn@spa.texas.gov
continued next page
-3-
IDENTITY OF THE PARTIES AND COUNSEL
Counsel for Appellee: Alan K. Curry
(Initial Appeal) Texas Bar Card No. 05263700
Daniel McCrory
Texas Bar Card No. 13489950
District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Tel. 713-755-5826
Fax. 713-755-5809
Email: curry_alan@dao.hctx.net
Email: mccrory_daniel@dao.hctx.net
Counsel for Appellee: Thomas H. Carter III
(Trial Court) Texas Bar Card No. 24048387
Lauren E. Byrne
Texas Bar Card No. 24055242
District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Tel. 713-755-7077
Fax. 713-755-0173
Email: carter_heyward@dao.hctx.net
Email: byrne_lauren@dao.hctx.net
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TABLE OF CONTENTS
Page
Identity of the Parties and Counsel ……………………………………….. 2
Index of Authorities ………………………………………………………. 7
Cases …………………………………………………………………….. 7
Statutes ………………………………………………………………… 8
Rules ...………………………………………………………………… 10
Legal Opinions …..……………………………………………………… 11
Statement Regarding Oral Argument ……………………………………… 12
Statement of the Case ……………………………………………………… 12
Statement of Procedural History …...……………………………………… 12
Grounds for Review ……………………………………………………….. 13
Argument …………………………………………………………………... 13
The Court of Appeals panel erred in holding that an exception to
the law does not need to be negated unless it is literally contained
in the section that defines the offense. ………………………………….. 13
The Court of Appeals panel erred by failing to resolve the
constitutionality of Section 1702.322 of the Texas Occupations
Code as it applies to peace officers. ……….…………………………… 16
The Court of Appeals panel failed to address every issue raised
by Appellant to final disposition and this failure unjustly injured
Appellant’s procedural rights. …………………………………………... 22
continued next page
-5-
TABLE OF CONTENTS
Page
The Court of Appeals panel failed to address every issue necessary
to final disposition of the appeal and this failure unjustly injured
Appellant’s procedural rights. ……………………………………….... 24
Prayer for Relief …………………………………………………………… 25
Certificate of Compliance ………………………………………………….. 26
Certificate of Service …………………………………………………….. 27
Appendix ………………………………………………………………… --
Opinion of the Appellate Court Panel
(delivered on June 30, 2015) ……………...……..……………………… A1
-6-
INDEX OF AUTHORITIES
Cases Page
Carter v. State, 656 S.W.2d 468 (Tex.Crim.App. 1983) …............. 24
Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App. 1984)
(en banc) ..................................................................................... 21
Jenkins v. State, 454 S.W.3d 713 (Tex.App.-Corpus
Christi (2015) ………………………………………..………...… 23
Kolender v. Lawson, 461 U.S. 352, 357 (1983) ……..………...… 21
McClain v.State, 14-97-00355-CR, 1997 WL 312309 (Tex.
App.-Houston [14th Dist.] June 12, 1997, pet. ref’d) ……….…….. 22
McMillian v. State, Docket No. 14-11-00833-CR (Tex.App.-
Houston [14th Dist.] 2012) (unpublished) …………….………. 21
Threlkeld v. State, 558 S.W.3d 472 (Tex.Crim.App. 1977) ……. 15
continued next page
-7-
INDEX OF AUTHORITIES
Statutes Page
Texas Code of Criminal Procedure
Article 2.12 …………………………………………..……... 20
Texas Labor Code
Section 62.0515(c) …………………………….…………… 20
Texas Occupations Code
Section 1702.002 ……….……………………….……..…… 20
Section 1702.002(15) ……….………………….……..…… 20
Section 1702.102 ……….……………………….……..…… 14
Section 1702.108 ……….……………………….……..…… 14
Section 1702.321 …..…………………………………..…… 14,15,16,17
Section 1702.322 …..……………………………………..… 14,15,16,17,19,20
Section 1702.323 …..……………………………………..… 14,15,16,17
Section 1702.324 …..……………………………………… 14,15,16,17
Section 1702.325 …..……………………………………..… 14,15,16,17
Section 1702.326 …..…………………………………….… 14,15,16,17
continued next page
-8-
INDEX OF AUTHORITIES
Statutes Page
Texas Occupations Code
Section 1702.327 …..…………………………….…………… 14,15,16,17
Section 1702.328 …..……………………………………..…… 14,15,16,17
Section 1702.329 …..………………………………..………… 14,15,16,17
Section 1702.330 …..………………………………..………… 14,15,16,17
Section 1702.331 …..……………………………..…………… 14,15,16,17
Section 1702.332 …….……..….……………….…………..… 14,15,16,17
Texas Penal Code
Section 2.02 ………..………………………….……………… 13,14
Section 46.02 …….…………………………….……………… 14
Section 46.15 …………….…………………….……………… 14,15
Section 46.15 (a)(1) ……….…………………….…………… 14
Section 46.15 (a)(4) ……….…………………….…………… 14
Section 46.15 (a)(6) ……….…………………….…………… 14
Section 46.15 (a)(7) ……….…………………….…………… 14
continued next page
-9-
INDEX OF AUTHORITIES
Rules Page
Texas Rules of Appellate Procedure
Rule 66.3(b) .…………………………………………………. 13
Rule 66.3(d) .…………………………………………………. 13
Rule 68 .………………………………………………………. 12
Rule 47.1 …...…………….…………………………………. 22,24
continued next page
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INDEX OF AUTHORITIES
Legal Opinions Page
Texas Attorney General
Opinion GA-0106 (2003) …..………………………………… 19
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TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
INTO COURT COMES, ERIC LYNN BAUMGART, the Appellant, who
files this Petition for Discretionary Review pursuant to TEX. R. APP. P. § 68 et seq
through the attorney designated herein and in support of said petition would
respectfully show the Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
1. Appellant requests an opportunity to present oral arguments to address any
matter that the Court deems necessary.
STATEMENT OF THE CASE
2. This case involves the unconstitutionality of the private security laws as they
apply to peace officers, the misapplication of these laws by prosecutors, and
prosecutorial misconduct.
STATEMENT OF PROCEDURAL HISTORY
3. The Court of Appeals panel issued an opinion that affirmed four out of five
guilty verdicts against Appellant. A copy of the opinion is attached to this petition.
See Appendix A1. The Court of Appeals panel denied a rehearing and Appellant’s
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motion for en banc hearing was denied on September 24, 2015. The deadline to
file a petition for discretionary review was extended to November 25, 2015.
GROUNDS FOR REVIEW
4. Two principal issues in this case should be resolved by the Court of Criminal
Appeals because these issues directly affect a broad segment of criminal cases
statewide, namely:
1. the application of Section 2.02 of the Texas Penal Code as it relates to
statutory exceptions to the law; and
2. the as-applied unconstitutionality of the Texas Private Security Act as
it applies to peace officers.
5. These issues involve important questions of state law that should be settled
by the Court of Criminal Appeals. See Tex. R. App. P. § 66.3(b). Also, because the
Court of Appeals misconstrued applicable law in reaching its opinion. See Tex. R.
App. P. § 66.3(d).
6. A collateral issue that should be addressed is the failure of the Court of
Appeals to address every issue raised and necessary in this case.
ARGUMENT
7. The Court of Appeals panel erred in holding that an exception to the
- 13 -
law does not need to be negated unless it is literally contained in the section
that defines the offense.
8. In this case, Appellant was accused of violating the Texas Private Security
Act. (RR 5 – 10). See Tex. Occ. Code §§ 1702.102 and 1702.108. This Act
provides for twelve exceptions to the law. See Tex. Occ. Code §§ 1702.321 –
1702.332. An exception to the law excludes a person from criminal liability under
special circumstances and the State is required to negate an exception as an
element of an offense. See Tex. Pen. Code § 2.02.
9. As an illustration, it is a felony for a person to intentionally, knowingly, or
recklessly carry a handgun on property licensed for the sale of alcoholic beverages.
See Tex. Pen. Code § 46.02. Nowhere in this section did the Texas Legislature
provide for an exception to the law. But, in the last part of Chapter 46, the
Legislature created an exception for judges and prosecutors with a concealed
handgun license. See Tex. Pen. Code §§ 46.15(a)(4), (a)(6), and (a)(7).
10. This same section created an exception that also applies to peace officers.
See Tex. Pen. Code § 46.15(a)(1). According to the Court of Appeals in the instant
case…judges, prosecutors, and peace officers are all subject to immediate arrest
and criminal prosecution if caught with a handgun on property licensed for the sale
of alcoholic beverages and that the exception provided for under Section 46.15
must be asserted as a defense to the jury at trial. This is absurd.
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11. The Texas Legislature clearly intended to protect judges, prosecutors, and
peace officers from being unjustly subjected to criminal prosecution by creating
Section 46.15 that was aptly named “Nonapplicability”. Likewise, the Legislature
intended to protect innocent people from being unjustly subjected to criminal
prosecution by creating Subchapter N of the Texas Private Security Act that was
aptly named “Exceptions”. See Tex. Occ. Code § 1702.321 et seq.
12. No matter the case law cited by the State, the Trial Court, or the Court of
Appeals, an exception to the law created by the Legislature is an exception that
must be negated in the charging instrument and at trial; and, it does not matter
what kind of burden it imposes on the State. To say that the government can
choose and ignore laws simply to get a conviction is openly saying that our
community has no laws.
13. Bad legislation must be struck down in favor of the accused otherwise
innocent people and our community suffers. The 1977 Texas Court of Criminal
Appeals case Threlkeld v. State has been misapplied to relieve the State of its duty
to negate exceptions to the law. See Threlkeld v. State, 558 S.W.2d 472
(Tex.Crim.App. 1977). A line of cases following Threlkeld have usurped
legislative power by changing exceptions to defenses. See Opin. at 6.
14. In the instant case, Appellant was a commissioned peace officer at the time
he was accused of violating the Texas Private Security Act. As previously stated,
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this Act provides for twelve distinct exceptions to the law. See Tex. Occ. Code §§
1702.321 – 1702.332. Like the previous illustration, these exceptions were not
contained in the section that provided for the offense; but, like the previous
illustration, these exceptions were required to be negated.
15. A plain reading of the indictments against Appellant shows that no
exceptions to the Texas Private Security Act were negated or even mentioned. (CR
1 – 11 [14-14-00307-CR]; CR 1 – 11 [14-14-00308-CR]; CR 1 – 10 [14-14-00309-
CR]; CR 1 – 10 [14-14-00310-CR]). Appellant objected to this at numerous stages
of the criminal prosecution, but the Trial Court overruled the objections. (RR 2 –
14; RR 6 – 6; RR 6 – 126).
16. Further, the Trial Court allowed the State to present one of the twelve
exceptions of its liking to the jury and in the jury charge. (CR 1 – 511). See Tex.
Occ. Code § 1702.322. The State was allowed to choose and ignore which laws it
wanted the jury to hear while Appellant was denied addressing the other
exceptions to the law provided for in the Texas Private Security Act. These are
issues that should have been resolved by the Court of Appeals.
17. The Court of Appeals panel erred by failing to resolve the
constitutionality of Section 1702.322 of the Texas Occupations Code as it
applies to peace officers.
18. The Texas Private Security Act enumerates twelve statutory exceptions to
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the law. See Tex. Occ. Code §§ 1702.321 – 1702.332. One of these sections relates
to law enforcement personnel and this section was central to the instant case. See
Tex. Occ. Code §1702.322. This exception reads in verbatim:
This chapter does not apply to:
(1) a person who has full-time employment as a peace officer and
who receives compensation for private employment on an
individual or an independent contractor basis as a patrolman,
guard, extra job coordinator, or watchman if the officer:
(A) is employed in an employee-employer relationship or
individual contractual basis:
(i) directly by the recipient of the services; or
(ii) by a company licensed under this chapter;
(B) is not in the employ of another peace officer;
(C) is not a reserve peace officer; and
(D) works as a peace officer on the average of at least 32
hours a week, is compensated by the state or a political
subdivision of the state at least at the minimum wage,
and is entitled to all employee benefits offered to a peace
officer by the state or political subdivision;
(2) a reserve peace officer while the reserve officer is performing
guard, patrolman, or watchman duties for a county and is being
compensated solely by that county;
(3) a peace officer acting in an official capacity in responding to a
burglar alarm or detection device; or
(4) a person engaged in the business of electronic monitoring of an
individual as a condition of that individual’s community
supervision, parole, mandatory supervision, or release on bail,
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if the person does not perform any other service that requires a
license under this chapter.
* * *
This section is rife with conflict and ambiguity.
19. On March 11, 2014 the director of the Texas Department of Public Safety-
Private Security Bureau testified at Appellant’s trial that each county can interpret
the Texas Private Security Act the way it wants to and that it is possible to have
254 different interpretations – one for each county in Texas. (RR 5 – 48). To have
more than one interpretation of the law is contrary to our principle of law; much
less 254 different interpretations.
20. In the instant case, Appellant was arrested at gun point, jailed in full police
uniform, and criminally prosecuted for performing traffic control duties on an
interstate highway as a peace officer. (RR 5 – 10; RR 7 – 28; CR 1 – 10).
Appellant was found guilty by a jury, but later acquitted by the Court of Appeals.
See Opin. at 4. The vagueness of this Act encourages arbitrary and discriminatory
enforcement; and, this ruins the lives of innocent people and their families.
21. The sole purpose of the Texas Private Security Act is to protect the
community from strangers providing vital security services; not to regulate
commissioned peace officers providing public safety. More to point, private
security guards and peace officers are mutually exclusive of each other. A private
security guard cannot enforce state laws and a security guard cannot act beyond the
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scope of the property being guarded.
22. A private security guard has no more rights or authority than an ordinary
citizen. The duty of a peace officer is to enforce state laws and to make arrests for
crimes committed in their presence. This duty exists at all times, no matter whether
the peace officer is on duty or off duty and no matter if the peace officer is full-
time, part-time, or reserve. See Tex. Att’y. Gen. Opin. GA-0106 (2003). It is this
latter classification that is being exploited to monopolize private security.
23. Section 1702.322 of the Texas Occupations Code attempts to define full-
time employment as a matrix to discriminate certain peace officers from competing
in off-duty private security services. According to this section, only peace officers
who work an “average of at least 32 hours a week” as a peace officer may provide
off-duty private security services without a private security guard license. But, this
section does not define the factor to establish the average.
24. It is unknown if “at least 32 hours a week” is averaged by the week, by the
month, by the year, or by some other factor. Mathematically an average is solely
depended on the amount it’s divided by and this factor does not exist in Section
1702.322. Next, this section requires a peace officer to earn at least “minimum
wage” as a peace officer. This term is also open for disparate interpretation
because a minimum wage can vary under Texas law.
25. In Texas, a state or local government entity may establish a minimum wage
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lower than the minimum wage established under the federal Fair Labor Standards
Act. See Tex. Lab. Code § 62.0515(c). Under Section 62.0515(c), a person may
contract with a government entity to provide police services for a wage lower than
the federal minimum wage and the Texas Private Security Act does not address
this circumstance.
26. Next, Section 1702.322 states that “a reserve peace officer” is not protected
by the “law enforcement” exception to the Texas Private Security Act; but,
nowhere in this section or the Act is the term “reserve peace officer” defined. See
Tex. Occ. Code § 1702.002. In Texas, a difference exists between a reserve license
and a reserve commission and the Texas Private Security Act is completely silent
as to whether the law applies to a license, commission, or both.
27. Notably, the Act does define a “peace officer” as “a person who is a peace
officer under Article 2.12, [Texas] Code of Criminal Procedure”. See Tex. Occ.
Code § 1702.002(15). Under Article 2.12 all peace officers, including reserves, are
equal under the law and pay, benefits, duties, and work schedules are not factors.
Further, at present, all peace officers must meet the same stringent basic training
and background checks – far more stringent than any security guard.
28. It is clear that the Texas Legislature intended to exclude peace officers from
regulation under the Texas Private Security Act. In the instant case, Appellant was
a Master Texas peace officer who protected a church charity. Appellant was not
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employed to enforce private property rules, but rather to enforce state law in the
event a crime occurred. (RR 5 – 64; RR 5 – 67). Appellant’s duty and authority
would not have changed whether being on-duty or off-duty.
29. All enforceable laws must be unambiguous. A statute is void for vagueness
if it fails to give a reasonable person of ordinary intelligence fair notice of the
conduct prohibited or if it is so indefinite that it encourages arbitrary and
discriminatory enforcement. See McMillian v. State, Docket No. 14-11-00833-CR
at 7 (Tex.App.-Houston [14th Dist.] 2012) (unpublished) (citing Kolender v.
Lawson, 461 U.S. 352, 357 (1983)).
30. The Kolender opinion was adopted by the Court of Criminal Appeals in
1984. See Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App. 1984) (en banc)).
In the instant case, the director of the Texas Department of Public Safety-Private
Security Bureau testified that private security laws can be interpreted differently in
each of the 254 counties. This kind of open interpretation of the law is contrary to
the structure of laws in our community.
31. If local police and prosecutors cannot distinguish whether traffic control is
regulated by the Texas Private Security Act then how is an ordinary person
supposed to understand what is regulated? In the instant case, Appellant was either
mistakenly arrested and convicted based on incompetence of the prosecutors or
Appellant had been targeted for malicious prosecution. The latter being the truth,
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the private security laws are being abused by the government.
32. The Court of Appeals panel failed to address every issue raised by
Appellant to final disposition and this failure unjustly injured Appellant’s
procedural rights.
33. The Court of Appeals is required to deliver an opinion on every issue raised
to final disposition of the appeal. See Tex. R. App. P. § 47.1. In this case, the Court
of Appeals panel failed to deliver an opinion explaining why it believed a prima
facie case could be made against Appellant with regards to the third appellate
issue. See Opin. at 5.
34. The panel cited McClain v. State as authority that an exception to the law
created by the Legislature metamorphoses into a defense when a prima facie case
can be made. McClain v. State, 14-97-00355-CR, 1997 WL 312309, at *1-2
(Tex.App.-Houston [14th Dist.] June 12, 1997, pet. ref’d) (mem. op.) (not
designated for publication). See Opin. at 5. As previously discussed, McClain and
all other cases that hold this opinion usurp legislative power.
35. A prima facie case could never be made when a jury is denied knowledge
that exceptions to the law exist. Or, when a jury is only given knowledge of certain
exceptions and not others. In the instant case, the panel wholly failed to describe
how the facts of Appellant’s case were so convincing of guilt that it would have
been a waste of time for the State to burden the jury with all of the exceptions to
- 22 -
the law that the Legislature deemed important.
36. More to point, Appellant’s principal complaint was that the indictment itself
should have been quashed because the exceptions were not negated. The charging
instrument defines how a defense is prepared. Here, the panel is saying that
exceptions must be negated unless a prima facie case is obvious to the State and
that a prima facie case can be established after-the-fact.
37. This makes no sense. It is impossible to know if a prima facie case exists
until a trial has occurred. There would be no need for a trial if guilt was established
by a prima facie case presented by the State. Only one of twelve exceptions to the
law was presented to the Jury which prevented Appellant from showing that other
exceptions to the law also applied to him.
38. Where sufficiency of the evidence is under appellate consideration the
standard of review is that evidence in the record is to be considered most favorable
to the verdict. See Jenkins v. State, 454 S.W.3d 713 (Tex.App.-Corpus Christi
2015). In the instant case, Appellant stood trial on five counts of violation of the
Texas Private Security Act and the Jury found him guilty of all five counts.
39. Afterwards, the Court of Appeals panel acquitted Appellant on one count
and affirmed the other four. See Opin. at 2. In affirming the other four, the panel
said it was impossible for the jury to reach a guilty verdict in one case and at the
same time the panel said that it was “highly unlikely” that a guilty verdict on the
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other four charges could not be reached. See Opin. at 11. If the Jury reached the
wrong verdict in one case then it is not reasonable to believe the other four verdicts
were correct.
40. Appellant is entitled to an opinion by the Court of Appeals on all issues
raised in the original brief and, absent acquittal, Appellant requests that these cases
are remanded for an opinion that complies with the Texas Rules of Appellate
Procedure and the interests of justice.
41. The Court of Appeals panel failed to address every issue necessary to
final disposition of the appeal and this failure unjustly injured Appellant’s
procedural rights.
42. The Court of Appeals is required to deliver an opinion on every issue
necessary to final disposition of the appeal. See Tex. R. App. P. § 47.1. In this
case, the Court of Appeals panel failed to consider unassigned error. Rule 47.1
distinguishes between issues raised and issues necessary by way of conjunctive
adverb. This language is not only a plain reading, but it was a conscious distinction
made when the Rules were established.
43. Appellant does not dispute that an appellate court has discretion to consider
unassigned error as a matter of historical precedent. See Carter v. State, 656
S.W.2d 468 (Tex.Crim.App. 1983). What is argued is whether an appellate court
may consciously disregard evidence showing an appellant’s innocence. The
- 24 -
purpose of trial courts is to ensure justice is done and the purpose of the courts of
appeal is to ensure the trial courts acted justly.
44. Innocent people and our community suffer if these legal processes fail. Our
judicial process relies on the elected and appointed judges and the rulings of these
judges have profound consequences to individuals, families, and the community.
Judges are supposed to be the gatekeeper of justice; and, accordingly, a judge who
recognizes an injustice has a duty to stop the injustice. This is both an imposed
and perceived duty of a judge.
45. In the instant case, Appellant relied on a court appointed attorney who
failed to raise all points of error. This attorney was discharged and unassigned
error was submitted to the Appellate Court panel that showed Appellant’s
innocence. This unassigned error was summarily ignored. The judicial process was
not intended to herd the accused like cattle – it was designed to ensure that a
person accused is afforded just due process.
PRAYER FOR RELIEF
46. Appellant requests the Court of Criminal Appeals to grant a full review of
these cases with briefs and arguments necessary for consideration. After
consideration, Appellant requests the Court to vacate the guilty verdicts in these
- 25 -
cases or to remand these cases for a new trial with instructions that a fair trial is
allowed to be presented to the jury.
47. Appellant further requests the Court to grant all other relief that he is entitled
to at law or in equity.
Respectfully submitted by:
____________________________________
Michael D. Gillespie
Texas Bar Card No. 07926500
226 Sheldon Road
Channelview, Texas 77530
Tel. 281-457-9999
Fax. 281-457-0990
Email: 226sheldon@gmail.com
Attorney for:
Eric Lynn Baumgart
Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, it is
certified that this document contains 3,189 words, as counted by word processor
software, for included sections as defined under Rule 9.4(i)(1) and that it is
compliant with Rule 9.4(i)(3)(D).
- 26 -
CERTIFICATE OF SERVICE
Pursuant to Rule 9.5(d) of the Texas Rules of Appellate Procedure, it is
certified that a true copy of these papers were served on the following parties:
State Prosecuting Attorney
PO Box 13046
Austin, Texas 78711
Via: Email to lisa.mcminn@spa.texas.gov
Harris County District Attorney
Appellate Division
1201 Franklin Street, Suite 600
Houston, Texas 77002
Via: Email to curry_alan@dao.hctx.net
Email to mccrory_daniel@dao.hctx.net
Texas Attorney General
General Litigation Division
PO Box 12548
Austin, Texas 78711-2548
Via: Email to const_claims@texasattorneygeneral.gov
Pursuant to Rule 9.3(b)(2) of the Texas Rules of Appellate Procedure, it is
certified that paper copies of each document electronically filed was mailed to the
Clerk for the Court of Criminal Appeals of Texas.
____________________________________
Michael D. Gillespie
Texas Bar Card No. 07926500
- 27 -
NO. PD-1358-15
NO. PD-1359-15
NO. PD-1360-15
NO. PD-1361-15
_____________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
_____________________________________
APPEAL FROM THE FOURTEENTH COURT OF APPEALS OF TEXAS
NO. 14-14-00307-CR
NO. 14-14-00308-CR
NO. 14-14-00309-CR
NO. 14-14-00310-CR
_____________________________________
Eric Lynn Baumgart
Appellant
VERSUS
The State of Texas
Appellee
_____________________________________
APPENDIX A1
_____________________________________
Affirmed in Part; Reversed and Rendered in Part and Opinion filed June 30,
2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00306-CR
NO. 14-14-00307-CR
NO. 14-14-00308-CR
NO. 14-14-00309-CR
NO. 14-14-00310-CR
ERIC L. BAUMGART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Cause Nos. 1909495, 1909496, 1909497, 1909498, and 1909499
OPINION
A jury convicted appellant Eric L. Baumgart of five counts of violating the
Private Security Act. See Tex. Occ. Code Ann. §§ 1702.102 & 1702.108 (West
2012 & Supp. 2014). For each offense, the trial court assessed punishment at
confinement for one year in the Harris County Jail, probated for two years.
Appellant filed a timely notice of appeal in each case. We affirm in part and
reverse and render in part.
SUFFICIENCY OF THE EVIDENCE
In his first and second issue, appellant claims the evidence is legally
insufficient to support his conviction in trial court cause number 1909495 on two
grounds. The record reflects this offense arose from appellant acting as a guard for
a construction zone on US 59. The first ground regards the allegation that appellant
acted as a guard on a contractual basis for Alejandro Lopez. The second ground
concerns the allegation that appellant acted as a guard on private property.1
In this case, the indictment alleged appellant “did then and there unlawfully,
intentionally or knowingly act as a guard company by engaging in the business of a
guard on a contractual basis for another person, namely ALEJANDRO LOPEZ to
prevent, observe or detect unauthorized activity on private property, without
holding a license as a security services contractor.” Appellant’s first issue contends
there is no evidence that he engaged in the business of a guard on a contractual
1
“A person acts as a guard company for the purposes of this chapter if the person employs
an individual described by Section 1702.323(d) or engages in the business of or undertakes to
provide a private watchman, guard, or street patrol service on a contractual basis for another
person to:
(1) prevent entry, larceny, vandalism, abuse, fire, or trespass on private property;
(2) prevent, observe, or detect unauthorized activity on private property;
(3) control, regulate, or direct the movement of the public, whether by vehicle or
otherwise, only to the extent and for the time directly and specifically required to ensure the
protection of property;
(4) protect an individual from bodily harm including through the use of a personal
protection officer; or
(5) perform a function similar to a function listed in this section.”
Tex. Occ. Code Ann. § 1702.108 (West 2012).
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basis for Alejandro Lopez. Appellant’s second issue argues there is no evidence he
acted as a guard on private property. We begin with appellant’s second issue.
Evidence was introduced that Alejandro Lopez was supervising the
construction crew doing repairs on a bridge on US 59. Lopez worked for Main
Lane Industries, a subcontractor for the Texas Department of Transportation
(“TxDot”). Lopez testified the portion of US 59 that was under repair is not private
property. He also testified the public did not have access to the part of the highway
being repaired. Deputy John E. Clay of the Harris County Sheriff’s Office testified
the public did not have access to that area of the road because it was “marked off”
with barrels but stated it is “public roadway” and agreed it is not private property.
Investigator Kirk Bonsal with the District Attorney’s Office also testified the
public was not able to access the part of the road within the traffic cones. Adam
Galland, the Assistant Area Engineer at the North Harris County Area Office for
TxDot, testified lanes are closed to “keep the public out.”
The State argues that since the area in question was cordoned-off with
barrels and a security guard was present to keep the public out, that section of the
roadway was a private area. The State asserts that if an area falls outside the
definition of “public place” in the Texas Penal Code, it is private property. See
Tex. Pen. Code Ann. § 1.07(a)(40) (West Supp. 2014). Although the definition of
“public place” expressly includes highways, the State argues it was private because
it was not accessible to the public. The State cites two cases in support of its
argument. In State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.—San Antonio
2007, no pet.), the court concluded a gated community was a public place as
defined by the penal code.
The penal code defines “public place” as any place to which the
public or a substantial group of the public has access and includes, but
is not limited to, streets, highways, and the common areas of schools,
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hospitals, apartment houses, office buildings, transport facilities, and
shops. Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2006). The
definition of public place is cast in broad language. Shaub v. State, 99
S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.); State v.
Nailor, 949 S.W.2d 357, 359 (Tex. App.—San Antonio 1997, no
pet.). The relevant inquiry is whether the public has access to the
place. Shaub, 99 S.W.3d at 256; Loera v. State, 14 S.W.3d 464, 467–
68 (Tex. App.—Dallas 2000, no pet.). The definition of public place is
open–ended and leaves discretion to the courts to expand its
parameters where appropriate. Loera, 14 S.W.3d at 467.
Id. at 358-59. In Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.—Fort Worth
2003, no pet.), the court similarly concluded a marina was a public place noting
“the entire marina area appears to be accessible to anyone who wants to use it.”
These cases are illustrative of what is a public place but we disagree that any
area that is temporarily closed off within a public place becomes private property.
The penal code expressly states a public place includes highways and there is no
limitation in the statute for a partial and temporary closure. The State cites no
authority, and we are aware of none, supporting its premise that a public place is
converted into private property when a portion of it is temporarily closed to public
access.
Because the alleged offense did not occur on private property, a rational trier
of fact could not have found all the elements of the offense beyond a reasonable
doubt. Accordingly, appellant’s second issue is sustained and the judgment of the
trial court in trial court cause number 1909495 is reversed and a judgment of
acquittal is entered. In light of this, we need not address appellant’s first issue.
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DENIAL OF MOTIONS TO QUASH
In his third issue, appellant claims the trial court erred in denying his
motions to quash the indictments on the grounds the State failed to negate an
exception to the charged offense. In light of our disposition of appellant’s second
issue, we only consider this issue as to the remaining offenses.2
The prosecuting attorney must negate the existence of an exception in the
indictment of the offense and prove beyond a reasonable doubt that the defendant
or defendant’s conduct does not fall within the exception. See Tex. Pen. Code.
Ann. § 2.02 (West 2011). Generally, where a penal statute embraces an exception
which is part of the statute itself, the State must negate the exception in the
charging instrument. McElroy v. State, 720 S.W.2d 490, 493 (Tex. Crim. App.
1986). See also Hicks v. State, 18 S.W.3d 743, 744 (Tex. App.—San Antonio
2000, no pet.). This rule applies to penal statutes included in the civil statutes as
well as exceptions to criminal conduct in the penal code. McElroy v. State, 720
S.W.2d at 492. Failing to negate an exception is the same as failing to allege an
essential element of the offense and renders the indictment void. Id.
“Where an exception is in a separate section from the provision that states
the offense and a prima facie case can be made without proof negating the
exception, it is not an essential requirement that it be negated in the information or
complaint.” McClain v. State, 14-97-00355-CR, 1997 WL 312309, at *1-2 (Tex.
App.—Houston [14th Dist.] June 12, 1997, pet. ref’d) (mem. op.) (not designated
for publication) (citing American Plant Food Corp. v. State, 508 S.W.2d 598, 604-
05 (Tex. Crim. App. 1974); and Bragg v. State, 740 S.W.2d 574, 576 (Tex. App.—
Houston [1st Dist.] 1987, pet. ref’d)). The exception for law enforcement personnel
2
These offenses all arose from appellant’s work as a security guard for Humble Bingo
Unit Trust.
5
is in a separate section from the provision stating the offense — “Subchapter N.
Exceptions” of “Chapter 1702. Private Security.” See Tex. Occ. Code Ann. §
1702.322 (West 2012 & Supp. 2014). A prima facie case of acting as a security
services contractor without a license can be made without proof negating the
exception. See id. Therefore, the State was not required to negate the exception in
the indictments and the trial court did not err in denying the motions to quash.
Appellant’s third issue is overruled.
ERROR IN THE COURT’S CHARGE
Appellant’s fourth and final issue contends there was error in the court’s
charge. In light of our disposition of appellant’s second issue, we only consider this
issue as to the remaining offenses.
Appellant argues the trial court erred in failing to apply the law regarding
law enforcement personnel to the facts of the case, see Tex. Occ. Code Ann. §
1702.322, and in failing to instruct the jury that a reasonable doubt on the issue
required acquittal. Appellant’s initial arguments are premised upon this court first
finding section 1702.322 is a defensive issue, not an exception. As noted above,
section 1702.322 is an exception to the offense. Appellant later asserts that
regardless of whether section 1702.322 is an exception or a defense, the trial court
was obligated to include an application paragraph in connection with that section.
We will consider whether the trial court erred in not applying the law regarding the
law enforcement exception to the facts of the case in the charge given to the jury.
The abstract portion of the jury charge defines the charged offense as
follows:
It is unlawful for any person to engage in the business
of, or to perform any service as a guard company, or to
offer his services in such capacities or engage in any
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business or business activity required to be licensed by
the Texas Private Security Act, unless the person holds
a license as a security services contractor.
The abstract portion of the charge also provides a description of section
1702.322’s law enforcement personnel provision:
It is not a violation of the Private Security Act for
a person who has full-time employment as a peace
officer, to receive compensation for private employment
on an individual or independent contractor basis as a
guard, if the officer:
(A) is employed in an employee-employer
relationship or is employed on an individual contractual
basis;
(B) is not in the employ of another peace
officer;
(C) is not a reserve officer; and
(D) works as a peace officer on average at least
32 hours a week, is compensated by the state or
political subdivision of the state at the rate of minimum
wage or higher, and is entitled to all employee benefits
offered to a peace officer by the state or political
subdivision.
Following the abstract section of the jury charge, the application paragraph
states:
Now, therefore, if you believe from the evidence
beyond a reasonable doubt that…the defendant, ERIC
L. BAUMGART, did then and there unlawfully,
intentionally or knowingly act as a guard company by
engaging in the business of a guard on a contractual
basis for another person…to prevent, observe or detect
unauthorized activity on private property, without
holding a license as a security services contractor, then
you shall find the defendant guilty.
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The charge further instructed the jurors that:
The burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to the
defendant.
...
The prosecution has the burden of proving the defendant
guilty, and it must do so by proving each and every
element of the offense charged beyond a reasonable
doubt, and if it fails to do so, you must acquit the
defendant.
An application paragraph encompassing the exception could have read as
follows:
Now, therefore, if you believe from the evidence
beyond a reasonable doubt that on or about November
17, 2012, the defendant, ERIC BAUMGART, did then
and there unlawfully, intentionally, or knowingly act as
a guard company by engaging in the business of a guard
on a contractual basis for another person to prevent
observe or detect unauthorized activity on private
property, without holding a license as a security services
contractor, and further find beyond a reasonable doubt
that: the defendant did not work as a peace officer on
the average of at least 32 hours a week or; that the
defendant was not compensated by the state or a
political subdivision of the state at the rate of the
minimum wage or higher or; that the defendant was not
entitled to all employee benefits offered to a peace
officer by the state or a political subdivision, then you
shall find the defendant guilty.
We can find no authority, nor have the parties cited any authority, that stands
for the proposition that the failure to include an application paragraph regarding a
statutory exception to an offense is error. We will assume without deciding that
8
there was in fact error. At the outset, we note that there was no objection to the
court’s charge. Therefore, any harm must be egregious to require reversal.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). An
egregious harm analysis considers: (1) the entire jury charge; (2) the state of the
evidence including the contested issues and the weight of the probative evidence;
(3) the arguments of the parties; and (4) any other relevant information revealed
by the record of the trial as a whole. Id. Jury charge error is egregiously harmful
if it affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory. Id. Egregious harm is a difficult standard to
prove. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
Regarding the initial factor, a review of the entire jury charge indicates
any error did not result in egregious harm. The “law enforcement personnel” issue
was not presented in the application paragraph. However, it was explained in detail
in the abstract section of the jury charge. A proper recitation of the law in the
abstract section of the charge minimizes error in the application paragraph. Nava v.
State, 415 S.W.3d 289, 298 n.21 (Tex. Crim. App. 2013).
The application paragraph contained in the charge instructed jurors to find
appellant guilty only if he “unlawfully” acted as a guard without a license. The
jury was required to find appellant was not a law enforcement officer before
finding him guilty of the offense. A review of the entire charge indicates appellant
was not egregiously harmed by any error.
The second factor looks at the state of the evidence. In determining whether
egregious harm occurred with regard to an error relating to an exception, we must
consider the plausibility of the evidence raising the exception. Villarreal v. State,
453 S.W.3d 429, 436 (Tex. Crim. App. 2015). We conclude the evidence
negating the exceptions for law enforcement personnel was strong.
9
To negate an exception under this statute, the State was required to prove
that appellant: (1) did not work as a peace officer at least 32 hours per week on
average; (2) was not compensated by a rate equal to minimum wage at least; and
(3) was not entitled to all employee benefits offered to a peace officer. Tex. Occ.
Code Ann. § 1702.322(1) (West 2012). Chad Pafford3 testified on behalf of
appellant that he worked more than 32 hours per week on average. However, on
cross examination by the State, Pafford admitted there was no documentation to
support this claim. Pafford stated that appellant worked on “the honor system.”
The Liberty County Treasurer, Kim Harris, testified on behalf of the State that
appellant was never a paid employee of Liberty County.
As to the minimum-wage requirement, Pafford stated that appellant never
received a paycheck while working as a full-time officer for nearly two years.
Pafford testified that appellant’s sole compensation was the use of a “take-home
patrol car” and the use of unspecified “county equipment.” Pafford considered the
value of the use of these items to be more than minimum wage. The car was a
2000 Ford Crown Victoria with approximately 260,000 miles. Pafford did not
report this “compensation” to the Liberty County Tax Assessor, the IRS, or any
other taxing authority.
With regard to the benefits requirement, Harris stated that county
employees, including law enforcement personnel, are offered various county
benefits. Her office maintains files for workmen’s compensation benefits for all
county employees. There was no record of appellant receiving any benefits.
On the whole, the State’s evidence regarding the exception for law
enforcement personnel was strong. First, there was no documentation to support
that appellant worked 32 hours per week on average. Furthermore, Pafford’s
3
Pafford was the elected constable who gave appellant a job.
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reliance on “the honor system” reflects that he did not verify appellant’s work
hours. The record demonstrates that Pafford did not have actual knowledge of the
amount of hours worked by appellant.
Next, there is no evidence that appellant was paid at least minimum wage.
Appellant received no pay at all. The record reflects no evidence was presented
regarding what minimum wage was at the time of the offense or the value of
appellant’s use of the county car and other county equipment.
As to the next requirement, Pafford testified on cross examination by the
State that he did not know if appellant was entitled to all the benefits offered by
Liberty County. Pafford’s belief that appellant was entitled to receive workmen’s
compensation benefits was contradicted by Harris and her knowledge of the
Liberty County personnel files.
Given the overall state of the evidence, it is highly unlikely the jury could
have found that the State failed to negate any of the exceptions under the law
enforcement personnel exception to the statute. Additionally, the State brought
forth evidence that appellant was not a full-time officer (as required under section
1702.322). At the time of his arrest at the Lopez construction site, he possessed an
unexpired identification card that identified him as a reserve officer for the
Liberty County Constable. The state of the evidence demonstrates that any
possible error relating to the omission of the exception for law enforcement
personnel in the application paragraph of the charge did not result in egregious
harm.
We must also consider whether egregious harm occurred as a result of
jury charge error in light of the parties’ arguments. The record reflects that both
parties addressed the exception for law enforcement personnel and applied that
statutory law to the facts of the case. Appellant argued that the State failed to
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prove that he was not a full-time police officer. The State argued in closing that
they had proved that he was a reserve officer and alternatively that he did not meet
the three requirements. From the arguments the jury would have understood that
the burden was on the State to negate the exception. Therefore, the record clearly
demonstrates that the jury received information applying the law to the facts
despite any error in the jury charge’s application paragraph. Given the foregoing
analysis, we conclude the error, if any, did not cause appellant egregious harm.
Accordingly, we overrule appellant’s fourth issue.
CONCLUSION
For the reasons set forth above, we reverse the judgment of conviction in
trial court cause number 1909495 and render a judgment of acquittal. The
judgments in trial court cause numbers 1909496, 1909497, 1909498, and 1909499
are affirmed.
/s/ Marc W. Brown
Justice
Panel consists of Justices Christopher, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).
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Challenge to Constitutionality of a State Statute
This form must be completed by a party filing a petition, motion or other pleading challenging the
constitutionality of a state statute. The completed form must be filed with the court in which the cause is
pending as required by Section 402.010 (a-1), Texas Government Code.
Cause N um her (For Clerk Use Only): Court (For Clerk Use Only):
Styled: Eric Lynn Baumgart v. The State of Texas
(e.g., John Smith v. All American Insurance Co.; in re Mary Ann Jones; In the Matter of the Estate of George Jackson)
Contact information for party* challenging the constitutionality of a state statute. (*Ifparty is not a person, provide
contact information for party, party's representative or attorney.)
Name: Michael D.Gillespie Telephone: 281-457-9999
Address: 226 Sheldon Road Fax: 281-457-0990
City/State/Zip: Channelview, TX 77530 State Bar No. (if applicable): 07926500
Email: 226sheldon@gmail.com
Person completing this form is: IX] Attorney for Party D Unrepresented Party D Other:
Identify the type of pleading you have filed challenging the constitutionality of a state statute.
D Petition D Answer IX] Motion (Specify type): Petition for Discretionazy Review
D Other:
Is the Attorney General of the State of Texas a party to or counsel in this cause?
D Yes ~ No
List the state statute(s) being challenged in your pleading and provide a summary of the basis for your
challenge. (Additional pages may be attached if necessary.)
All provisions of the Texas Private Security Act, as codified under Chapter 1702 of the Texas Occupations Code, that regulate a Texas
peace officer working private extra-employment under the authority of Article 2.12 of the Texas Code of Criminal Procedure.
9/5/13