State v. Erika Lozano-Pelayo ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00014-CR
No. 07-19-00015-CR
THE STATE OF TEXAS, APPELLANT
V.
ERIKA LOZANO-PELAYO, APPELLEE
On Appeal from the 381st District Court
Starr County, Texas1
Trial Court Nos. 18-CR-57 & 18-CR-59, Honorable Jose Luis Garza, Presiding
February 28, 2020
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, the State of Texas, filed the present interlocutory appeals2 of the trial
court’s orders granting motions to quash filed by appellee, Erika Lozano-Pelayo. We
reverse the trial court’s orders and remand the cases for trial.
1 Pursuant to the Texas Supreme Court’s docket equalization efforts, these cases were transferred
to this Court from the Fourth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2 The State is entitled to appeal an order of a court in a criminal case if the order dismisses any
portion of an indictment. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West 2018). At oral argument, the
State confirmed that proceedings before the trial court have been stayed pending our disposition of these
appeals. Id. at art. 44.01(e).
Factual and Procedural Background
In March of 2018, by two separate indictments, appellee was charged with the
offenses of fraudulent use of application for ballot by mail, “Count I,” and election fraud,
“Count II,” relating to Elvia Gallegos (07-19-00014-CR) 3 and Odalis Gutierrez (07-19-
3 The indictment in cause number 07-19-00014-CR provides:
COUNT I
The grand jurors, duly selected, organized, sworn and impaneled as such for the
County of Starr, State of Texas, at the January term, 2018, of the 381st district court of
said county, upon their oaths present in and to said court that on or about the 27th day of
December, 2017, in the county and state aforesaid, and anterior to the presentment of this
indictment, Erika Lozano-Pelayo, did then and there knowingly provide false information
on an application for ballot by mail and intentionally cause false information to be provided
on an application for ballot by mail, to-wit: providing or causing to be provided information
on the application for ballot by mail of Elvia Gallegos, in the March 2018 Primary election,
that the application for ballot by mail was signed on the 27th of December, 2017,
And it is further presented to said court that said Erika Lozano-Pelayo committed
another offense under this section in the March 2018 Primary election, to-wit: on or about
the 2nd day of January, 2018, did then and there knowingly provide false information on
an application for ballot by mail and intentionally cause false information to be provided on
an application for ballot by mail, to-wit: information on the application for ballot by mail of
Odalis Gutierrez that Odalis Gutierrez was disabled when Odalis Gutierrez was not in fact
disabled,
COUNT II
And the grand jurors aforesaid, upon their oaths aforesaid, do further present in
and to said court that on or about the 27th day of December, 2017, in said county and
state, and anterior to the presentment of this indictment, Erika Lozano-Pelayo did then and
there knowingly and intentionally make an effort to cause intentionally misleading
information to be provided on the application for ballot by mail of Elvia Gallegos, in the
March 2018 Primary election, to-wit: that the application for ballot by mail was signed on
the 27th of December, 2017,
And it is further presented to said court that said Erika Lozano-Pelayo committed
another offense under this section in the March 2018 Primary election, to-wit: on or about
the 2nd day of January, 2018, did then and there knowingly and intentionally make an effort
to cause an intentionally misleading statement, representation, or information to be
provided on the application for ballot by mail of Odalis Gutierrez, to-wit: that Odalis
Gutierrez was disabled when Odalis Gutierrez was not in fact disabled,
AGAINST THE PEACE AND DIGNITY OF THIS STATE.
2
00015-CR).4 The indictments allege that appellee’s commission of these fraudulent acts
in the same election are enhancements to the other offense. In other words, appellee
was indicted for committing the offenses of fraudulent use of application for ballot by mail
and election fraud specifically related to appellee’s obtaining a ballot in the name of Elvia
Gallegos, and these offenses are enhanced by allegations that appellee committed the
same offenses in the same election with regard to obtaining a ballot in the name of Odalis
4 The indictment in cause number 07-19-00015-CR provides:
COUNT I
The grand jurors, duly selected, organized, sworn and impaneled as such for the
County of Starr, State of Texas, at the January term, 2018, of the 381st district court of
said county, upon their oaths present in and to said court that on or about the 2nd day of
January, 2018, in the county and state aforesaid, and anterior to the presentment of this
indictment, Erika Lozano-Pelayo, did then and there knowingly provide false information
on an application for ballot by mail and intentionally cause false information to be provided
on an application for ballot by mail, to-wit: providing or causing to be provided information
on the application for ballot by mail of Odalis Gutierrez, in the March 2018 Primary election,
that Odalis Gutierrez was disabled when Odalis Gutierrez was not in fact disabled,
And it is further presented to said court that said Erika Lozano-Pelayo committed
another offense under this section in the March 2018 Primary election, to-wit: on or about
the 27th day of December, 2017, did then and there knowingly provide false information
on an application for ballot by mail and intentionally cause false information to be provided
on an application for ballot by mail, to-wit: information on the application for ballot by mail
of Elvia Gallegos that the application for ballot by mail was signed on the 27th of December,
2017,
COUNT II
And the grand jurors aforesaid, upon their oaths aforesaid, do further present in
and to said court that on or about the 2nd day of January, 2018, in said county and state,
and anterior to the presentment of this indictment, Erika Lozano-Pelayo did then and there
knowingly and intentionally make an effort to cause intentionally misleading information to
be provided on the application for ballot by mail of Odalis Gutierrez, in the March 2018
Primary election, to-wit: that Odalis Gutierrez was disabled when Odalis Gutierrez was not
in fact disabled,
And it is further presented to said court that said Erika Lozano-Pelayo committed
another offense under this section in the March 2018 Primary election, to-wit: on or about
the 27th day of December, 2017, did then and there knowingly and intentionally make an
effort to cause an intentionally misleading statement, representation, or information to be
provided on the application for ballot by mail of Elvia Gallegos, to-wit: that the application
for ballot by mail was signed on the 27th of December, 2017,
AGAINST THE PEACE AND DIGNITY OF THIS STATE.
3
Gutierrez. The indictment relating to appellee’s alleged fraud in obtaining a ballot in the
name of Odalis Gutierrez alleges that these offenses are enhanced because appellee
committed the same offenses in the same election in obtaining a ballot in the name of
Elvia Gallegos.
Prior to trial, appellee filed identical motions to quash the indictments. In her
motions, appellee argued that the district court did not have jurisdiction over the Count II
charges because election fraud is a class A misdemeanor. Appellee also contended that
the indictments failed to provide her with fair notice of the offenses being charged because
the offenses alleged in the Gallegos case would be presented as enhancements in the
Gutierrez case, and vice versa. Appellee also contended that the indictments failed to
give her fair notice of the distinctions between Counts I and II generally.
After holding a hearing on the motions to quash, the trial court entered its orders,
which granted the motions in part and denied the motions in part. It held that the
enhancement paragraphs of both counts in each case “must be set aside and removed
from the indictment.” It also ordered that the class A misdemeanors of election fraud be
severed and transferred to the County Court at Law of Starr County, Texas. The trial
court denied the portion of the motions relating to fair notice. The State filed notices of
appeal of the trial court’s rulings granting appellee’s motions to quash.
Standard of Review
An appellate court reviews a trial court’s ruling on a motion to quash de novo. State
v. Drummond, 501 S.W.3d 78, 81 (Tex. Crim. App. 2016). Construction of a statute is a
question of law, which is also reviewed de novo. Cary v. State, 507 S.W.3d 750, 756
(Tex. Crim. App. 2016). In construing a statute, we are to analyze the language to
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effectuate the collective intent of the legislature. Id. We effectuate the legislature’s intent
by first looking to the text of a statute and construing the words and phrases used
according to the normal rules of grammar and usage. Id. We presume that every word
in a statute has been included for a purpose and should be given effect if reasonably
possible. Id. If the language used is unambiguous and does not lead to absurd results,
we will construe it according to its plain language without resort to extra-textual sources.
Id.
The Statutes
By Act of August 11, 2017, the legislature enacted the two statutes that are at issue
in these interlocutory appeals. This Act created a new offense entitled “Election Fraud,”
codified as Texas Election Code section 276.013, as well as amending the prior offense
of “Providing False Information on Application” to “Fraudulent Use of Application for Ballot
by Mail,” codified as Texas Election Code section 84.0041. Act of Aug. 11, 2017, 85th
Leg., 1st C.S., ch. 1, §§ 4, 17, 2017 Tex. Gen. Laws 4493, 4494, 4498. The election
fraud provision makes it an offense to, inter alia, “knowingly or intentionally make[] any
effort to . . . cause any intentionally misleading statement, representation, or information
to be provided . . . on an application for ballot by mail, carrier envelope, or any other
official election-related form or document.” TEX. ELEC. CODE ANN. § 276.013(a)(3)(B)
(West Supp. 2019).5 The fraudulent use of application for ballot by mail provision makes
it an offense to “knowingly provide[] false information on an application for ballot by mail”
or “intentionally cause[] false information to be provided on an application for ballot by
5 Further reference to provisions of the Texas Election Code will be by reference to “section __” or
“§ __.”
5
mail.” § 84.0041(a)(1), (2) (West Supp. 2019). Election fraud is a class A misdemeanor,
see section 276.013(b), while fraudulent use of application for ballot by mail is a state jail
felony, see section 84.0041(b). However, both provisions provide that “[a]n offense under
this section is increased to the next higher category of offense if it is shown on the trial of
an offense” that either “the defendant was previously convicted of an offense under this
code” or “the defendant committed another offense under this section in the same
election.” §§ 84.0041(d), 276.013(c).
Analysis
Section 276.013 – Election Fraud
The State, by its first issue, contends that the district court erred in determining
that it did not have jurisdiction over the claims of election fraud asserted against appellee.
Appellee, in her motions to quash, contended that election fraud is a misdemeanor and,
therefore, the district court lacked jurisdiction over these claims. While a single violation
of the statute is a class A misdemeanor, two or more violations of the statute within the
same election is “increased to the next higher category of offense,” which, in these cases,
would be a state jail felony. § 276.013(b), (c)(3). We must determine whether this
enhancement language is an element of the offense or a punishment issue.
When a statutory element, such as a prior conviction, is used to elevate what would
otherwise be a misdemeanor up to a felony, such an enhancement is jurisdictional and
must be alleged in the indictment. Tamez v. State, 11 S.W.3d 198, 201 (Tex. Crim. App.
2000). These jurisdictional enhancement allegations vest jurisdiction over the offense in
the district court and become essential elements of the offense. Oliva v. State, 548
S.W.3d 518, 533 (Tex. Crim. App. 2018). An enhancement allegation that would
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“otherwise be a punishment issue must become an element because it is jurisdictional.”
Id.
When reviewing the plain meaning of the language used in the election fraud
statute, a single offense is a class A misdemeanor. § 276.013(b). However, this
misdemeanor offense is “increased to the next higher category of offense if it is shown on
the trial of an offense . . . that . . . the defendant committed another offense under this
section in the same election.” § 276.013(c)(3). The next higher category is a state jail
felony. As such, the allegations that appellee committed a second offense of election
fraud within the same election is jurisdictional and raises each offense from a
misdemeanor to a felony. See Oliva, 548 S.W.3d at 533 (“our caselaw has explicitly
recognized that ‘jurisdictional’ allegations are those that raise the level of the offense from
a misdemeanor to a felony, which in turn results in vesting jurisdiction of the offense in
district court . . . .”); State v. Wheeler, 790 S.W.2d 415, 416 (Tex. App.—Amarillo 1990,
no pet.) (reversing order to quash prior-conviction jurisdictional enhancement because,
since jurisdictional, enhancement had to be pled and proven as an element of the
offense). Consequently, we conclude that the State’s indictments of appellee for election
fraud were proper to invoke the district court’s felony jurisdiction and the jurisdictional
enhancements are an element of the state jail felony offense of election fraud, which must
be proven by the State at trial.
Appellee argues that, in the Gallegos case (07-19-00014-CR), the enhancement
allegation occurs after the base offense and, therefore, this allegation cannot be used to
enhance the offense because the statute uses the word “committed,” which denotes that
the enhancement must have occurred prior to the base offense. An election fraud offense
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is enhanced if it is shown that “the defendant committed another offense under this
section in the same election.” § 276.013(c)(3). The plain language of this provision
requires only that it be shown that appellee committed another offense of election fraud
during the same election. Nothing in the language used requires the commission of the
enhancement offense to occur prior to the base offense. The only express or implied
requirements relating to timing that can be found in subsection (c)(3) of section 276.013
is that the offenses occur in the same election and before trial. In fact, section 276.013
itself illustrates that the legislature is aware of how to require a particular sequence of
offenses. See § 276.013(c)(1) (it is an enhancement to the base offense of election fraud
if it is shown that the defendant “was previously convicted of an offense under this
code . . . .” (emphasis added)). Based on our construction of the enhancement provision,
the State must be given an opportunity to prove that appellee committed another offense
of election fraud in the same election. See State v. Meadows, 170 S.W.3d 617, 620 (Tex.
App.—El Paso 2005, no pet.) (reversing trial court’s order dismissing indictment on basis
that State must be given opportunity to prove jurisdictional enhancement at trial).
For the foregoing reasons, we sustain the State’s first issue and reverse the trial
court’s orders granting appellee’s motions to quash the enhancement paragraphs for the
election fraud charges and transferring these charges to the County Court at Law of Starr
County.
Section 84.0041 – Fraudulent Use of Application for Ballot by Mail
By its second issue, the State contends that the trial court erred in quashing the
enhancement paragraphs related to the charges under section 84.0041. The
enhancement provision of section 84.0041 is distinguishable from that of section 276.013.
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While a single violation of section 84.0041 is a state jail felony, two or more violations of
the statute within the same election is “increased to the next higher category of offense,”
which would be a third-degree felony. § 84.0041(b), (d)(3). As with the election fraud
statute, we must determine whether this enhancement language is an element of the
offense or a punishment issue.
Unlike the election fraud statute, a single violation of the offense of fraudulent use
of an application for ballot by mail is already a felony. § 84.0041(b). Consequently, an
enhancement that increases the offense to the next higher category of offense is not
jurisdictional. See Oliva, 548 S.W.3d at 533 (enhancements are jurisdictional when they
raise the level of the offense from misdemeanor to felony).
Since the enhancement provision of section 84.0041 is not jurisdictional, its
language indicates that the enhancement provision is intended to be limited to a
punishment issue. Section 84.0041(d) includes the language “if it is shown on the trial of
an offense . . . .” While not always indicative of a punishment issue,6 it is a phrase that is
“consistently restricted in the Penal Code ‘to matters dealing only with punishment.’” Id.
at 527 (quoting Wilson v. State, 772 S.W.2d 118, 123 (Tex. Crim. App. 1989)).
Since the enhancement provision of section 84.0041 is not jurisdictional but
includes language which is often associated with punishment issues, we conclude that
the legislature intended it to prescribe a punishment issue. We reach this conclusion fully
aware that the language used in the enhancement provision of section 84.0041 is
6 Section 276.013(c)(3) also includes this “if it is shown on the trial” language. However, because
the enhancement in that statute is jurisdictional, we have concluded that the enhancement is an element
of the offense regardless of its inclusion of this language. This is consistent with precedent of the Court of
Criminal Appeals since it acknowledges that, “it is not always true that this phrase (‘if it is shown on the trial
of’) causes a statute to prescribe a punishment issue.” Id. at 528.
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identical to that used in section 276.013. However, because the enhancement provision
of section 84.0041 is not jurisdictional, we conclude that it is a punishment issue that will
be litigated only if appellee is first found guilty of the primary offense of fraudulent use of
an application for ballot by mail.
Appellee argues that the indictments create a situation in which her pleas to the
base allegations could preclude her pleas on the enhancement allegations. We do not
perceive the indictments to create such an issue. As we have concluded above, the base
charges under section 276.013 as well as their enhancements must be proven by the
State during the guilt-innocence phase of the trial to meet its burden of proof on the
indicted charge of state-jail-felony election fraud. Likewise, enhancements under section
84.0041 will not be put in issue until or unless appellee is found guilty of the base offenses.
If she is found guilty, she will be afforded an opportunity to plead to the enhancement
allegations. Nothing in the statutes or in how she was charged by the indictments alters
appellee’s ability to freely enter any plea she desires as to any of the charges.
Consequently, we sustain the State’s second issue and reverse the trial court’s
orders quashing the enhancement paragraphs related to the underlying fraudulent use of
application for ballot by mail charges.
McWilliams v. State
Appellee cites McWilliams v. State, 782 S.W.2d 871 (Tex. Crim. App. 1990), in
support of her proposition that the enhancement allegations are being used as both an
element of the offense and as a punishment issue. However, we find McWilliams to be
inapplicable to the present cases. McWilliams prohibits the use of a prior conviction as
an essential element of the charged offense and as a penalty enhancement of the same
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offense. Id. at 875-76. In the present cases, the enhancement paragraphs of the charge
under section 276.013 are an element of the charged offenses, which is not also being
used as a punishment enhancement. By contrast, the enhancement allegations of the
charges under section 84.0041 are not elements of the charged offenses and are an issue
of penalty enhancement only if appellee is found guilty of the base offenses.
Consequently, we conclude that the indictments in the present cases do not violate
McWilliams.
Conclusion
For the foregoing reasons, we reverse the trial court’s orders granting appellee’s
motions to quash the enhancement allegations of the indictments and remand the cases
to that court for further proceedings. TEX. R. APP. P. 43.2(d).
Judy C. Parker
Justice
Publish.
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