Derick Dewayne Evans v. State ( 2014 )

AFFIRM; and Opinion Filed January 31, 2014.
In The
Qnttrt of AppcnI
3itrirt Of cxas at Datlas
No. 05-12-01179-CR
DERICK DEWAYNE EVANS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F1001193W
NUNC PRO TUNC OPINION
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Lewis
A jury found appellant Derick Evans guilty of engaging in organized criminal activity,
based on an underlying offense of gambling promotion, and assessed appellant’s punishment at
confinement for two years. Subsequently, that sentence was suspended; Evans was placed on
community supervision for two years and ordered to pay a fine of $10,000. Appellant raises nine
issues on appeal. We affirm the trial court’s judgment.
Background
Appellant was charged by indictment with the offense of engaging in organized criminal
activity based on a raffle drawing he organized to benefit his political campaign. Appellant
pleaded not guilty and proceeded to trial before a jury in November 2011. After the 2011 trial
ended with a hung jury, a second trial before a jury was held in June 2012. The second trial
ended with a jury finding appellant guilty as charged. Appellant filed two motions for new trial,
both of which were overruled by the trial judge. Appellant also sought a writ of mandamus from
this Court regarding his suspension from office which we denied.’ Now appellant appeals the
trial cour(s judgment.
Sufficiency of the Evidence
In his first issue, appellant argues the evidence was legally insufficient to support his
conviction for engaging in organized criminal activity. He argues the State failed to prove
beyond a reasonable doubt that appellant, knowingly for gain, committed the offense of
gambling promotion or that there was a group that intended to work together in a continuing
course of criminal activities. Appellant contends the evidence presented at trial is insufficient to
prove he distributed prizes to persons who paid consideration for a chance to win anything of
value. We have reviewed the evidence and conclude that it is sufficient to support appellant’s
conviction.
The State charged appellant with engaging in organized criminal activity, based on the
underlying offense of gambling promotion. In pertinent part, the indictment charged as follows:
EVANS, DERICK DEWAYNE
* * *
did then and there commit the offense of gambling promotion in violation of
section 47.03 of the Texas Penal Code, to-wit: the Defendant did then and there,
for gain, knowingly set-up and promote a lottery, to wit: a raffle drawing held on
or about December 20, 2008;
and said Defendant did then and there commit said offense with the intent to
establish, maintain, and participate in a combination, and in the profits of a
combination, who collaborated in carrying on said criminal activity.
When reviewing the legal sufficiency of the evidence, we apply well-established
standards. See Jackson v. Virginia, 443 U.S. 307, 318—19 (1979); Wise v. State. 364 S.W.3d 900,
Sec hi cc Dt’rb* Dcwavnc Evans. 401 S.W.3d 92! (Tex. App—Dallas 2013. orig. proceeding),
903 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the jury’s
verdict and determine whether any rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at 903. The trier
of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and
drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319.
A person commits the offense of gambling promotion “if he intentionally or knowingly.
for gain, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for
transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence
of participation in any lottery.” TEX. PENAL CODE Ass. § 47.03(a)(5) (West 2011). A person
commits the offense of engaging in organized criminal activity “if, with the intent to establish,
maintain, or participate in a combination or in the profits of a combination or as a member of a
criminal street gang, the person commits or conspires to commit” any gambling offense
punishable as a Class A misdemeanor.” Id. at § 71.02(a)(2) (West Supp. 2013). “Combination”
means three or more persons who collaborate in carrying on criminal activities, iS. at § 7 1.01(a)
(West 2011). “Conspires to commit” means that a person agrees with one or more persons that
they or one or more of them engage in conduct that would constitute the offense and that person
and one or more of them perform an overt act in pursuance of the agreement. Id. at § 7 1.01(b)
(West 2011). An agreement constituting conspiring to commit may he inferred from the acts of
the parties. hi.
Gambling Pronioflon
The record reveals appellant’s Campaign Finance Report for Lhe period July I, 2007
through December 31, 2007 lists political contributions from the sale of “raffle tickets” and
political expenditures for “raffle prizes.” Multiple witnesses testified that while employed under
appellant in 2008, they were called out of a morning briefing meeting in groups; each was given
—3—
50 raffle tickets and told to sell them. Lieutenant Tracey Gulley and Sergeant Kelvin Holder
were distributing tickets in the precinct parking lot, one reading aloud the ticket numbers and
distributing tickets while the other wrote down each officer’s name along with the ticket numbers
they were given. The tickets contained the following language:
“Keep Caring & Committed Law Enforcement Leadership Working for Our
Community”
Support Constable Derick Evans
1st Prize An XBOX 360(ÔOG) Pro System
2nd Prize A Sony PSP
3rd Prize A (2G) MP3 Player
Drawing to be held Saturday, December 20, 2008 (Need not be present to win)
Paid for by Dedck Evans Campaign Fund, Joe E. Bagby Treasurer
S5.00 Donation, Thank You for Your Support.
Witnesses testified that during detail one morning, appellant referenced the selling of (he raffle
tickets and exclaimed, “as much as he had done for them, they should be able to do something
for him in return.” Several officers testified they sold the tickets they could and then bought the
remainder themselves. The officers reported they turned in their ticket proceeds to Gulley in her
precinct office and she checked off their names from the distribution list. Consistent with the
officers’ testimony, appellant’s Campaign Finance Report for the period July 1, 2007 through
December 311 2007 lists several officers names as contributors showing they contributed $250
toward appellant’s campaign. On December 20, 2008. the precinct held a Christmas party at
which time appellant drew three raffle ticket stubs out of a bag and awarded the three prizes
listed on his Campaign Finance Report for the period July I. 2007 through December 31, 2007 as
“raffle prizes.” The testimony consistently reveals tickets were only given to people who paid
$5.00 for a ticket. Also, the testimony consistently reveals the drawings for the prizes were
purely by chance and the only tickets stubs in the bag at the time of the drawings were stubs
from the raffle tickets sold.
-4-
Appellant’s contention that the evidence is insufficient to support his conviction is
without merit. The sufficiency of the evidence must be reviewed in the light most favorable to
the determination made by the tinder of fact. Jackson, 1’3 U.S. at 319; Wise, 364 S.W.3d at 903;
see a/so Smith i’. State, 658 S.W.2d 172, 173 (Tex. Crim. App. 1983). The evidence in this case
was legally sufficient for the jury to infer that appellant intentionally or knowingly for gain, set
up or promoted a lottery; that the purpose and function of the lottery was to induce people to
exchange money for a chance to enter the raffle and win one of three prizes listed on the raffle
tickets; and that the purpose of exchanging money for the ticket was to enter the raffle. See TEX.
PENAL CODE ANN. 47.03(a)(5).
Organ izeci Criniinal Actn’ztv
The record also supports the jury’s finding that appellant possessed the intent to establish,
maintain, or participate in a combination or in the profits of a combination in connection with the
gambling offense for which he wa convicted. See TEx. PENAL CODE ANN. § 71.02. Specifically,
appellant testified he has sold raffle tickets to fund his election campaigns since 2001. He
admitted he obtained the tickets himself and left them in his vehicle. He testified he told the
Chief Deputy the tickets were in his vehicle and it was unlocked, the following day the tickets
were no longer in his vehicle, and he did not know how or to whom they were distributed.
Officers testified Gulley and Holder distributed the tickets and made a list of which officers
received and sold the tickets. Officer Cooley testified he later saw appellant take the same list out
of his desk drawer to verify Cooley had sold his appropriated tickets when approving a request
for working an ofMuty job. Gulley gathered the ticket proceeds and stubs from the officers.
Appellant admitted he was given the ticket sales proceeds by Gulley and appellant deposited
those proceeds into his bank account to benefit his campaign. Appellant admits, and the officers
testified, that various people distributed and/or sold raffle tickets with the purpose of raising
—5—
funds for appellant’s political campaign. And finally, after receiving the proceeds and ticket
stubs, appellant conducted a raffle, drew the ticket stubs from a bag, and awarded prizes to the
drawn ticket holders.
We have reviewed the evidence in the light most favorable to the determination made by
the finder of fact. See JaL*son, 443 U.S. at 319; Wise, 364 S.W.3d at 903; see also Smith, 658
S.W.2d at 173. The evidence in this case was legally sufficient for the jury to infer that appellant
possessed the intent to establish, maintain, or participate in a combination or in the profits of a
combination; that appellant purchased the raffle tickets and prizes with the intent that other
officers would distribute and sell the raffle tickets; that the officers’ purpose in distributing and
selling the tickets was to facilitate a raffle generating proceeds to benefit appellant’s political
campaign; and that appellant received and deposited the proceeds from the officers ticket sales as
reported on his Campaign Finance Report for the period July 1, 2007 through December 31,
2007. This evidence supports the jury’s finding that appellant possessed the intent to establish,
maintain, or participate with other officers in the furtherance of the gambling offense for which
he was convicted. See TEX. PENAL CODE ANN. § 71.02; see also Nguyen v. State, 1 S.W.3d 694,
697 (Tex. Crim. App. 1999). Appellant’s first issue is overruled.
Exclusion of Evidence
In his second through fifth issues, appellant argues the trial court erred by excluding
evidence. He specifically complains that the trial court erred by excluding evidence: relevant to
whether appellant knowingly par icipated in the promotion of an illegal lottery, relevant to the
defense of mistake of fact, relevant to the defense of mistake of law, and of bias or motive of
several of the State’s witnesses.
—6—
We review a trial court’s decision to admit evidence under an abuse of discretion
standard. Davis v. State, 329 S.W.3d 798. 803 (Tex. Crim. App. 2010). The trial court abuses its
discretion only when the decision lies “outside the zone of reasonable disagreement.” Id.
A. Evidence of kizowinglv participating iii the ptvttiotioiz of an illegal lottery
Appellant’s second issue contends the trial court erred by excluding relevant evidence that
other constables used the same fundraising techniques as appellant. He complains his raffle, like
raffles held by other constables, was an “entirely legitimate activity.” Appellant argues it was
relevant for the jury to know that appellant learned this fundraising technique when he was a
deputy constable and that other constables used this same technique to raise campaign funds. We
have already established the evidence was sufficient to support the jury’s verdict that appellant
was guilty of engaging in organized criminal activity based on an underlying offense of
gambling promotion. Whether or not other constables’ actions satisfied the elements of
promotion of an illegal lottery is irrelevant to whether or not appellant’s actions satisfied those
elements. See Campbell v. State, 502 S.W.2d 736, 737 (Tex. Crim. App. 1973) (“The fact that
other persons may have violated the law is no excuse or justification for appellant’s violation.”
(citing Hk*n,an v. State 141 S.W. 973, 974 (Tex. Crim. App. 1911)). Therefore, we conclude it
was not an abuse of discretion for the trial court to determine that “where” appellant learned this
fundraising technique and who else might be using the same technique was irrelevant.
Appellant’s second issue is overruled.
B. Evidence relevant to ,ni.vtake 0/ fact and mistake of law
Appellant’s third and fourth issues contend the trial court erred by excluding evidence
that other constables used the same fundraising techniques as appellant because it was relevant
to the defenses of mistake of fact and mistake of law; and by excluding evidence of a Texas
Ethics Commission order, he was deprived of the opportunity to raise the mistake of law
—7—
defense. Specifically, appellant wanted to introduce a Texas Ethics Commission order in which
the Commission recognized that appellant’s opponent violated the law by not reporting all
contributions from a fundraising raffle. Appellant contends the raffle was sanctioned by the
Commission because the order failed to state the raffle was illegal. It is a defense to prosecution
that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken
belief negated the kind of culpability required for commission of the offense. TEX. PENAL CODE
ANN. 8.02 (West 2011). It is also an affirmative defense to prosecution that the actor
reasonably believed the conduct charged did not constitute a crime and that he acted in
reasonable reliance upon an official statement of the law contained in a written order or grant of
permission by an administrative agency charged by law with responsibility for interpreting the
law in question. 14. at § 8.03 (West 2011).
Appellant argues the excluded evidence would allow the jury to decide whether appellant
possessed the required mental state for the offense, “i.e., whether Constable Evans knowingly,
for gain, promoted an illegal lottery.” However, appellant was charged by an indictment
following the language of the statute and the State was required to prove appellant, for gain.
knowingLy set-up and promoted the raffle; there was no requirement to prove appelLant knew his
actions were illegal. The facts relevant to appellant’s conviction are: he obtained the raffle
tickets, he purchased prizes to be awarded, he knew the raffle tickets were sold for gain, he took
the money from the ticket sales and deposited it in his campaign bank account, a drawing was
held where he picked a ticket stub by chance, and the owner of the winning ticket stub was
entitled to a prize. The excluded facts of which appellant complains are facts about what other
constables allegedly have done, not facts about appellant’s actions. “That others had also
violated the law would be no excuse or justification.” Hickman, 141 S.W. at 974. Appellant
—8—
only claims that he did not know that the acts he was committing were an offense: he committed
the very acts he intended to commit. “No mistake of law excuses any one.” Id.
Appellant urges this Court to find the Texas Ethics Commission has responsibility for
interpreting the penal code—the law under which appellant was charged. Appellant provides this
Court with the statute enabling the Texas Ethics Commission to administer and enforce
campaign finance laws. See ThX. GOVT CODE ANN. § 571.061 (West 2012). However,
appellant fails to provide this Court with any case law or statute enabling the Texas Ethics
Commission to interpret the Texas Penal Code, and we fail to find such grant of authority.
Appellant’s third and fourth issues are overruled.
C. Evidence of bias or motive of witnesses
Appellant’s fifth issue contends the trial court erred by excluding evidence attacking the
credibility of the Stale’s witnesses. Ronald Linthicum, Norvis Harmon, and Andrew Harris.
Specifically, appellant claims each of these three witnesses felt he had been treated unfairly by
appellant and were therefore biased and had motive to put appellant in the worst possible light
with the jury.
A trial court’s decision to exclude evidence will be upheld if it is within the zone of
reasonable disagreement. Davis, 329 S.W.3d at 803. Error may not be predicated upon a ruling
which excludes evidence unless a substantial right of the party is affected. TEX. R. EvID. 103(a).
A party should be allowed to show all facts tending to demonstrate bias, interest, prejudice, or
any other motive, mental state, or status of the witness that, fairly considered and construed,
might even remotely tend to affect the witness’s credibility. Hinojosa v. Suite, 788 S.W.2d 594.
600 (Tex. App.—Corpus Christi 1990, pet. ref’d). However, the scope of appropriate cross-
examination is not unlimited. Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996).
Cross-examination may be limited to prevent harassment, prejudice, confusion of the issues,
—9—
harm to the witness, and repetitive or marginally relevant interrogation. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.
Here, appellant complains the trial court excluded historical evidence of job-related
problems for Ronald Linthicum, Norvis Harmon, and Andrew Harris. Appellant was trying to
show their bias and motive for testifying against him. The jury heard Linthicum testify he had
worked for the Constable’s office for nineteen years and was terminated while working for
appellant. Linthicum was in the process of being terminated when he flied a complaint against
appellant which reported feeling coerced to sell the raffle tickets. Linthicum testified he had
received an administrative warning and he knew his job was in jeopardy when he made the
complaint of coercion against appellant. Linthicum’s report also complained that he was treated
unfairly when he was denied the opportunity to work pan-time jobs while other constables were
allowed the same opportunities he was denied.
The jury heard Andrew’ Harris testify he had been disciplined by appellant and was not
allowed to work off-duty jobs as a result. Harris testified he had a meeting with appellant and
requested that his discipline he rescinded; appellant refused to rescind the discipline and Harris
was upset. Harris further testified he was involved with a group of others that filed a civil suit
against appellant that was pending at the time of trial. The civil suit alleged Harris had been
forced to sell to the public or personally purchase raffle tickets for appellants campaign. Harris
flied a formal complaint with the Dallas County District Attorney regarding the forced selling of
raffle tickets for appellant’s election campaign as well us other issues Harris was experiencing.
Harris testified his complaint to the district attorney was made one week l,efore he was
terminated and appellant contends the complaint was faxed to the district attorney’s office the
day after Harris was terminated.
—10—
Also, the jury heard Norvis Harmon testify he worked in the Constable’s office until he
was terminated in 2011. Harmon testified he was asked by appellant to sell raffle tickets. On
cross examination, Harmon admitted his affidavit reporting the selling of raffle tickets did not
include a report of his meeting with appellant directly asking Harmon to sell the tickets. Harmon
testified appellant denied Harmon’s request to work off-duty jobs which made him unhappy. The
State introduced several off-duty requests made by Harmon which appellant had approved.
Harmon testified he was also involved with the civil suit against appellant and considered
himself a whistleblower for reporting appellant to the authorities.
The jury was aware that all three witnesses, Ronald Linthicum, Norvis Harmon, and
Andrew Harris, had possible motives to make false accusations against appellant. The jury had
ample opportunity to judge the credibility and weigh the testimony of each witness. The record
also contains documentary evidence showing possible bases for negative feelings of these three
witnesses toward the appellant. Further, the State brought forth four other officers who all
testified to the same facts as the three officers that appellant is complaining about; they were all
given, and felt coerced to sell, raffle tickets in support of appellant’s campaign. We do not find it
an abuse of discretion for the trial court to exclude evidence tending to be needless cumulative
evidence, risking confusion of the issues, or misleading the jury. See TEX. R. EvID. 403.
Appellant’s fifth issue is overruled.
Improper Argument
In his sixth issue, appellant argues the trial court erred in refusing to instruct the jury to
disregard a statement made by the State during closing argument. The State responds that the
argument was permissible because it was a reasonable deduction and inference from the
evidence. During the guilt/innocence phase of the trial, the State argued:
Something else that I think is very interesting about his character. Everything he
did, almost with exception of a few checks that they put into evidence, everything
—Il—
is in cash. And then we have all these expenses. They don’t add up. Why do they
do it in cash? There’s got to be a reason, and the reason is, so they can siphon
some of it off.
Appellant’s counsel objected that the State’s argument was a misstatement of the evidence and
not a reasonable deduction from the evidence; the trial court overruled the objection.
We review a trial court’s ruling on an objection to a jury argument for an abuse of
discretion. See Montgomery i’. State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet.
ref d). Permissible jury argument generally falls into one of four areas: (I) summation of the
evidence, (2) reasonable deductions drawn from the evidence, (3) responses to argument of
opposing counsel, and (4) pleas for law enforcement. Brown i’. Stare 270 S.W.3d 564, 570 (Tex.
Crim. App. 2008). The State may draw reasonable inferences From the evidence and is afforded
wide latitude in its jury argument so long as the argument is supported by the evidence,
legitimate, fair, and offered in good faith. Id at 572.
Here, the State introduced testimony by several witnesses supporting the proposition that
all raffle ticket proceeds were expected to be returned in cash. During his own testimony,
appellant reported that he kept some cash to use when he needed to purchase something, or for
paying a “Di.” or the caterer for a Christmas party. We cannot conclude the trial court erred in
overruling appellant’s objection to the State’s closing argument because the State may argue all
reasonable inferences from the facts in evidence, and any error from arguing facts outside of the
record is not reversible unless, in light of the record as a whole, the argument is extreme or
manifestly improper. See kL Under these circumstances, we conclude the prosecutor’s argument
in this case was a reasonable inference from the evidence. See Wesbmok i’. Stare, 29 S.W.3d 103,
115 (Tex. Crim. App. 2000).
Even if we found the jury argument was improper and the trial court did err in overruling
appellant’s objections, our inquiry would not end. “Error exists when facts not supported by the
—12—
record are interjected; however, such error is not reversible unless, in light of the record as a
whole, the argument is extreme or manifestly improper, violative of a mandatory statute or
injects new facts, harmful to the accused, into the trial.” Al/ridge i’. State, 762 S.W.2d 146, 155
(Tex. Crim. App. 1988). The test for reversible error in jury argument is whether there is a
reasonable possibility that the argument complained of might have contributed to the conviction
or the punishment assessed. Id.
Appellant testified that he was given the campaign money by Gulley. Gulley had received
the money from the other deputies who had sold raffle tickets. Appellant testified he took the
money to the bank and deposited it into his campaign account. Officers testified they received
and turned-in cash raffle ticket proceeds. The record contains appellant’s Campaign Finance
Report for the period July 1, 2007 through December 31, 2007 which shows contributions
received as well as expenditures made for a raffle. Appellant testified he paid some campaign
expenses with cash. In light of the record as a whole, we conclude the State’s argument was a
reasonable deduction in light of all the evidence presented, was not extreme or manifestly
improper, and was not harmful to appellant. See Allridge, 762 S.W.2d at 156. Appellant’s sixth
issue is overruled.
Motion to Quash
In his seventh issue, appellant argues the trial court erred by denying a motion to quash
the indictment because the indictment failed to properly allege a necessary culpable mental state.
Specifically, appellant argues the indictment rails to track the gambling promotion statute by
placing the required culpable mental state of “knowingly” after “for gain” rather than before “br
gain.’ The State responds that any error in the indictment is waived and even if it were
preserved, the indictment properly stated the culpable mental state.
— I 3—
The State rirst contends appellant has waived this claim because he failed to argue it at
the pre-trial hearing devoted to the motion to quash. The reporter’s record reveals that
appellant’s counsel did not specifically argue about the placement of the word knowingly in the
indictment at the hearing of the motion to quash. However, appellant’s counsel did state, “Your
Honor, for the record, we would like to re-urge our Motion to Quash that was heard before, as it
relates to the indictment.” And the clerk’s record reveals the Amended Motion to Quash and
Exception to Substance of the Indictment contains the exact argument appellant brings before us
on appeal. Consequently, we conclude appellant has preserved his argument for this appeal. See
TEX. R. App. P. 33.l(a)(l); Miller v. State, 333 S.W.3d 352, 355-56 (Tex. App.—Fort Worth,
2010, pet. ref’d).
We review de novo a trial court’s denial of a motion to quash an indictment. Lawrence i’.
State, 240 S.W.3d 912. 915 (Tex. Crim. App. 2007). Indictments may suffer from a defect of
substance or a defect of form. A defect of substance occurs when the indictment does not appear
to charge an offense, when it appears on the face of the indictment that it is “barred by a lapse of
time or that the offense was committed after the finding of the indictment,” when “it contains
matter which is a legal defense or bar to the prosecution,” or if the indictment shows on its face
that the trial court lacks jurisdiction. TEx. CODE CRIM. PROC. ANN. art. 27.08 (West 2006). To
determine whether the defendant had adequate notice to prepare his defense, we must first
determine whether the charging instrument failed to provide some requisite item of “notice.”
Olurehi v. State, 870 S.W.2d 58,6! (Tex. Crim. App. 1994). A charging instrument which tracks
the language of a criminal statute possesses sufficient specificity to provide an accused with
notice of a charged offense. State v. Ethnond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). An
indictment should contain everything which is necessary to be proved. TEx. CODE CRIM. PROC.
ANN. art. 21.03 (West 2009). A motion to quash should only be granted when the language
—14—
describing the accused’s conduct is so vague or indefinite that it fails to give the accused
adequate notice of the acts he allegedly committed. DeVaiighn v. Stare, 749 S.W.2d 62, 67 (Tex.
Crim. App. 1988). When a motion to quash a charging instrument is overruled, a defendant
suffers no harm unless he did not, in fact, receive notice of the State’s theory against which he
would have to defend. State v. Muff, 154 S.W.3d 599, 601. 603 (Tex. Crim. App. 2004); see ti/so
TEX. CODE CRIM. PROC. ANN. art. 21.19 (West 2009).
Appellant complains that the trial court erred by failing to grant his motion to quash
because the indictment failed to charge that appellant did “knowingly, for gain, promote a
lottery” by placing the required culpable mental state of knowingly after “for gain” rather than
before “for gain.” We disagree. The indictment was sufficiently specific by stating the conduct
for which he was being charged as “the Defendant did then and there, for gain, knowingly set-up
and promote a lottery, to wit: a raffle drawing held on or about December 20. 2008.” It is clear
from the indictment that the “knowingly” mental state required by the applicable statute, that was
a necessary element, was included in the charge. See Oliver v. State. 692 S.W.2d 712, 714 (Tex.
Crim. App. 1985) (“[W]here there is not a material difference between the language of the
statute and the language of the indictment, an indictment which alleges all of the requisite
elements of the particular offense in question will not be found to be deficient simply because it
fails to precisely track the language of the statute.”) (emphasis in original). We conclude there
was no material variance between the indictment and the statute.
Furthermore, even if there were some error in the indictment, appellant would suffer
harm only if he did not, in fact, receive notice of the State’s theory against which he would have
to defend. Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009): see also TEX. CODE
CRIM. PROC. ANN. art. 21.19 (An indictment shall not be held insufficient, nor shall the trial.
judgment or other proceedings thereon be affected, by reason of any defect of form which does
— IS—
not prejudice the substantial rights of the defendant.). Appellant’s substantial rights were not
harmed because the record in this case clearly shows that appellant had actual notice of the
charges on which the State was basing its allegations: engaging in organized criminal activity,
based on an underlying offense of gambling promotion. The indictment gave appellant adequate
notice of the acts he allegedly committed from which he could prepare his defense. See Smith,
297 S.W.3d at 267. Appellant’s seventh issue is overruled.
Jury Charge Error
In his eighth issue, appellant argues the trial court erred by submitting an egregiously
harmful jury charge because the application paragraph of the charge did not require the jury to
find a necessary culpable mental state. The State responds that the jury charge properly stated the
culpable mental stare.
When reviewing the jury charge, we must first determine whether error exists. Ahnwzza v.
Stare, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984). If we find error, we must then determine
whether the error caused sufficient harm to require reversal. Hutch v. Stare, 922 S.W.2d 166, 171
(Tex. Crim. App. 1996): Alnzanza, 686 S.W.2d at 171. When a timely objection is made at trial,
reversal is required if the accused can claim “some harm.” Ahnan:a. 686 S.W.2d at 171. If no
proper objection was made at trial, the accused must claim that the error was fundamental, and
he will obtain a reversal only if the error is so egregious and created such harm that he “has not
had a fair and impartial trial.” Id. Because appellant failed to object to the charge, he must
demonstrate he suffered actual egregious harm; that is, the error must be so harmful that it
affected the very basis of the case, deprived him of a valuable right, or vitally affected a
defensive theory. See Warner v. Stare, 245 S.W.3d 458, 46 1-62 (Tex. Crim. App. 2008).
—16—
A person is to be tried only on the crimes alleged in the indictment. Castillo v. Stare, 7
S.W.3d 253, 258 (Tex. App.—Austin 1999, pet. reEd). The charge of which appellant complains
begins by tracking the language of the statute and instructed:
A person commits a Class A misdemeanor offense of gambling promotion if he
knowhzglv, for gait?, sets up or promotes any lottery. (emphasis added).
The application paragraph of the charge also instructed:
Now, if you find from the evidence beyond a reasonable doubt that on or about
the 1st day of December. A.D., 2008. in Dallas County, Texas, the defendant,
Derick Dewayne Evans, did unlawfully then and there commit the offense of
gambling promotion in violation of section 47.03 of the Texas Penal Code, to-wit:
the Defendant did then and there,frir gain, knowingly set up or promote a lottery,
to-wit: a raffle drawing held on or about December 20, 2008, and said Defendant
did then and there commit said offense with the intent to establish, maintain, or
participate in a combination, and in the profits of a combination who collaborated
in carrying on said criminal activity, then you will find the defendant guilty of
Engaging in Organized Criminal Activity, as charged in the indictment. (emphasis
added).
Appellant complains the jury was erroneously told appellant “was guilty if he knowingly
organized the raffle” and should have been told appellant “was guilty if he knowingly, for gain,
organized the raffle.” Appellant argues the jury was not required to find all the necessary
elements of the offense of gambling promotion because the words “for gain” were placed before
“knowingly’ in the indictment and in the application paragraph of the jury charge. We disagree;
we do not view the challenged language in isolation, but rather in context of the entirety of the
court’s charge. The language “for gain” was not omitted from the indictment or the jury charge.
See Oliver i’. State, 692 S.W.2d 712, 714 (Tex. Crim. App. 1985) (“Thus where there is not a
material difference between the language of the statute and the language of the indictment, an
indictment which alleges all of the requisite elements of the particular offense in question will
not be found to be deficient simply because it fails to precisely track the language of the statute.
Furthermore, in construing indictments the context and subject matter in which the words are
employed should be taken into consideration.”) We conclude there is no material difference
—17—
between the statute and the indictment; the application paragraph in the jury charge tracked the
language in the indictment. See Id. Further, we find nothing in the record revealing any contest
regarding whether appellant held the raffle drawing “for gain.” Appellant even testified the
“profits” went to the Derick Evans campaign. Also, the definitions section of the jury charge
Lracked the language of the statute. Consequently, we conclude appellant failed to suffer
egregious harm from the language used in the jury charge. Appellant’s eighth issue is overruled.
Suspension from Office
Appellant’s ninth issue contends the trial court erred by suspending appellant from office.
The State responds the trial court properly exercised its discretion pursuant to the local
government code. The constitution provides, “Laws shall be made to exclude from office persons
who have been convicted of bribery. perjury. forgery, or other high crimes.” TEX. C0NST. art.
XVI, 2. Local Government Code Chapter 87 governs the removal or suspension of certain
government officials from office. See TEX. Loc. Gov’T CODE ANN. § 87.00 l—.043 (West 2008
& Supp. 2013).
Following the jury’s guilty verdict, the trial court removed appellant from public office
pursuant to sections 87.031 and 87.032. Section 87.031 provides:
(a) The conviction of a county officer by a petit jury for any felony or for a
misdemeanor involving official misconduct operates as an immediate removal
from office of that officer.
(b) The court rendering judgment in such a case shall include an order removing
the officer in the judgment.
TEX. Loc. GOVT CODE ANN. § 87.031 (West 2008). When appellant filed his notice of appeal,
the trial court held a suspension hearing and found it was in the public interest to suspend
appellant from office pursuant to section 87.032 which provides:
If the officer appeals the judgment, the appeal supersedes the order of removal
unless the court that renders the judgment finds that it is in the public interest to
suspend the officer pending the appeal. If the court finds that the public interest
— I 8—
requires suspension, the court shall suspend the officer as provided by this
chapter.
TEX. Loc. GOVT CODE ANN. § 87.032 (West Supp. 2013).
Appellant argues the procedures of Chapter 87, tinder which he was removed from office,
are broader than the constitutional provision on which the procedures are based because all
felonies are not “high crimes” as described in article XVI of the Texas Constitution. See TEX.
CONST. art. XVI, § 2; TEx. Loc. Govt CODE ANN. § 87.031—32. The Texas Supreme Court has
addressed a related issue regarding section 87.031 in light of article XVI, section 2. See generally
In re Bazan, 251 S.W.3d 39, 43—45 (Tex. 2008) (discussing the legislative history of chapter 87).
In Bazan, the Court states:
This constitutional provision states that: “Law’s shall be made to exclude from
office . . [persons] who have been or shall hereafter be convicted of bribery,
.
perjury, forgery, or other high crimes.” TEX. CONST. art. XVI, § 2. An individual
convicted of a felony is thus ineligible to hold public office whether the
conviction comes before or after the individual’s election to office. See leL: TEX.
ELEC. CODE § 141.001(4) (individual convicted of a felony ineligible to hold
public office); TEX. LOCAL Govt CODE § 87.031 (felony conviction operates as
an immediate removal from office); Op. Tex. Att’y Gen. No. H—20 (1973) (“The
term ‘other high crimes’ includes any offense of the same degree or grade as those
specifically enumerated, namely felonies.”).
Bacan, 251 S.W.3d at 41—42.
Appellant contends because his conviction of the felony offense of engaging in organized
criminal activity is based on the underlying misdemeanor offense of gambling promotion, a
lottery conducted for the purpose of raising campaign funds is not a high crime as intended in the
constitution. Further, appellant argues that the statute conflicts with the constitution because the
statute is broader than the constitution and the narrow reading of the constitution must prevail.
We disagree. Again, the constitution provides, “Laws shall be made to exclude from office
persons who have been convicted of bribery, perjury, forgery, or other high crimes.” TEx.
—19—
CONST. art. XVI, § 2. We do not interpret this constitutional provision as a limitation on more
expansive regulation by the Legislature. The constitutional commentary provides:
This section is a verbatim copy of Art. 7, § 4 of the Constitution of 1845.
The constitutional convention of 1845 recognized that Texas was a large area, and
many sections thereof were relatively lawless. Furthermore, temptations were
enormous, and the persons tempted often had no social position to forfeit, hence
the conditions were not the most favorable to virtue.
It was admitted that although it was impossible to make men moral by
statute, yet it was possible to arm good citizens with weapons which would
improve their chances in the unceasing conflict with the various forms in which
political dishonesty appeared. Therefore this section was placed in the first state
constitution and carried over in all successive state constitutions.
TEx. CONST. art. XVI, § 2 interp. commentary (West 1993). The commentary provides the
purpose of this constitutional provision as a directive to the Legislature to enact specific laws; it
says nothing about limiting the power of the Legislature. Again, as the Supreme Court has stated,
“The term ‘other high crimes’ includes any offense of the same degree or grade as those
specifically enumerated, namely felonies.” Bazan, 251 S.W.3d at 41—42. After reviewing the
Texas Constitution, local government code, and Supreme Court’s analysis, we conclude section
87.032 is not unconstitutional as applied to appellant’s suspension from office after his felony
conviction for engaging in organized criminal activity. See TEX. CONST. art. XVI, § 2; TEx.
LOCAL GovT CODE ANN. § 87.031; see also Bazan, 251 S.W.3d at 445; Lipseouth v. Randall,
985 S.W.2d 601, 610, n. 10 (Tex. App.—Fort Worth, 1999, pet. dism’d) (“In analogous Texas
cases involving county officers convicted of crimes, automatic forfeiture under statute pending
appeal has been upheld.”) (citations omitted). Welch v. State, 880 S.W.2d 79, 82 (Tex. App.—
Tyler 1994, writ denied) (holding Welch was properly barred from office after being convicted
of a felony because the legislature’s power to punish repeated driving while intoxicated as a
felony is unquestioned). Appellant’s ninth issue is overruled.
—20—
Con clusion
Having resolved appellant’s nine issues against him, we affirm the trial court’s judgment.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
TEX. R. App. P. 47
121 l79NF.U05
—2 I —