The State of Texas v. Miguel Villanueva, III ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00001-CR
___________________________
THE STATE OF TEXAS
V.
MIGUEL VILLANUEVA, III, APPELLEE
On Appeal from County Criminal Court No. 9
Tarrant County, Texas
Trial Court No. 1738244
Before Kerr, Bassel, and Wallach, JJ.
Opinion by Justice Wallach
OPINION
Villanueva was charged by information with violating Texas Penal Code
Section 46.02(a-1) by intentionally, knowingly, or recklessly carrying a handgun in his
motor vehicle while engaged in criminal activity (driving while intoxicated). See Tex.
Penal Code Ann. § 46.02(a-1). He was charged with DWI in another information
arising from the same incident. See id. § 49.04. The trial court quashed the information
because it did not charge an offense, based on recent statutory changes, and it
discharged Villanueva. The State appealed. Because we hold that the information did
charge an offense, we will reverse the order quashing the information and discharging
Villanueva and remand the case to the trial court for further proceedings.
1. Background
Early on June 23, 2022, Villanueva’s vehicle was stopped on the lefthand side
of an access road when the arresting officer discovered Villanueva in a state of
intoxication with his feet “planted firmly on the ground” but “bent over” with his
head “tucked between the back of the driver’s seat and the center console.”
Villanueva’s holstered handgun was in the map pocket of the driver-side door.
On July 8, 2022, by informations filed in trial court Cause Numbers
1738244 and 1738245, Villanueva was charged with the misdemeanor offenses of
unlawful carrying of a weapon and DWI. The charging information in Cause
1738244 alleged that Villanueva had intentionally, knowingly, or recklessly carried on
or about his person a handgun while he was in a motor vehicle that he owned or that
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was under his control while he was simultaneously engaged in criminal activity, i.e.,
DWI. Villanueva was charged in a separate information with “driving while
intoxicated, second” in cause 1738245. Villanueva subsequently appeared before a
magistrate and was notified of his right to have an attorney and of his right to
consular notification. This magistrate warning pertained to both misdemeanor
offenses that were part of the same underlying arrest: (1) DWI and (2) unlawful
carrying of a weapon.
On September 12, 2022, Villanueva filed a Motion to Quash in Cause 1738244,
the unlawful-carrying-of-a-weapon offense, contending that the information was
insufficient in its substance and that no underlying criminal offense was alleged in the
information.1 Specifically, Villanueva contended that the charge of unlawful carrying
of a weapon while intoxicated inside a vehicle he owned or controlled was no longer
an offense after the September 1, 2021 amendments to the Texas Penal Code codified
in Section 46.02(a-6). On December 28, 2022, the trial court granted Villanueva’s
motion. In doing so, the trial court held that no offense was charged in the
information and discharged him.
2. Standard of Review
This court reviews the dismissal of a charging instrument under a bifurcated
standard. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011); State v.
1
On appeal, Villanueva conceded his insufficiency-of-the-information challenge
and limited his argument to whether the information charged a criminal offense.
3
Alvear, No. 10-16-00203-CR, 2018 WL 4016337, at *2 (Tex. App.—Waco Aug. 22,
2018, pet. ref’d) (mem. op., not designated for publication). Almost total deference is
given to a trial court’s findings of fact that are supported by the record, as well as
mixed questions of law and fact that rely upon the credibility of a witness. Krizan-
Wilson, 354 S.W.3d at 815; Alvear, 2018 WL 4016337, at *2. However, a de novo
standard of review is applied to pure questions of law and mixed questions that do
not depend upon credibility determinations. Alvear, 2018 WL 4016337, at *2. De novo
review is appropriate in this case because it involves a pure question of law and is not
based upon facts or the credibility of witnesses. Ahmad v. State, 295 S.W.3d 731,
739 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Alvear, 2018 WL 4016337, at *2.
3. Analysis
The parties agree that the sole issue in this case is the interpretation of Texas
Penal Code Section 46.02. Section 46.02(a-1) provides in pertinent part that
(a-1) A person commits an offense if the person intentionally,
knowingly, or recklessly carries on or about his or her person a
handgun in a motor vehicle or watercraft that is owned by the
person or under the person’s control at any time in which: . . .
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor
that is a violation of a law or ordinance regulating traffic or
boating[.]
Tex. Penal Code Ann. § 46.02(a-1). Section 46.02(a-6) provides, in pertinent part, that
a person commits an offense if the person (1) carries a handgun, (2) while the person
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is intoxicated, and (3) “is not . . . inside of or directly en route to a motor vehicle or
watercraft . . . that is owned by the person or under the person’s control.” Id.§ 46.02(a-6) (emphasis added).
The State contends that Section 46.02(a-1) is violated if a person who is
intoxicated operates his vehicle (i.e., commits a DWI), with a handgun present in the
vehicle. Villanueva contends that Section 46.02(a-6) precludes a person from being
prosecuted for unlawful carrying of a weapon in his vehicle if the only other offense
for which he is being prosecuted is an intoxication-related offense such as DWI. We
must therefore determine if the 2021 amendment that added Section 46.02(a-6)
impliedly amended Section 46.02(a-1) to remove intoxication-related offenses from
the scope of “criminal activity” subject to prosecution under Section 46.02(a-1)(A).
We hold that it did not.
We find the court’s analysis of a similar situation in Diruzzo v. State, 581 S.W.3d
788, 798–804 (Tex. Crim. App. 2019), to be useful in resolving this case. Diruzzo,
who had no license to practice medicine, was convicted on sixteen counts of violating
Texas Occupations Code Section 165.152, illegally practicing medicine while not
holding a license to practice medicine, a third-degree felony. Id. at 790. Diruzzo
challenged the trial court’s subject matter jurisdiction, claiming that the indictment
only charged misdemeanor offenses, not felony offenses. While the court of appeals
rejected that challenge and affirmed the convictions, the Court of Criminal Appeals
agreed with Diruzzo and vacated the convictions. Id. at 790. The dispute centered
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around whether two provisions of the Occupations Code, one of which had been the
subject of amendment, were in pari materia and how their respective provisions
should be interpreted. Id. at 791–92.
Diruzzo conceded that when the Texas Occupations Code was adopted in
1999, Section 165.152 applied to physicians and non-physicians and made practicing
medicine without a license a misdemeanor offense unless the accused had been
previously convicted for the offense, which served to enhance the offense to a third-
degree felony. 2 Id. at 794. Diruzzo also admitted that Section 165.153 operated as an
additional enhancement for practicing medicine without a license to a third-degree
felony if the State proved physical or psychological harm, and a state jail felony if it
showed financial harm. Id.But, in 2003 the legislature amended Section 165.152(c) to read simply, “An
offense under Subsection (a) is a felony of the third degree.” Act of June 10, 2003,
78th Leg., ch. 202, § 37, 2003 Tex. Gen. Laws 844. Diruzzo argued that, as a result,
there was an apparent conflict between Section 165.152 and Sections 165.151 and
.153, which would effectively nullify section 161.153, a result that was acknowledged
by the State. Diruzzo, 581 S.W.3d at 798. The State argued that the amendment was an
2
Section 165.152(a) provided that “[a] person commits an offense if the person
practices medicine in this state in violation of this subtitle.” Tex. Occ. Code Ann.
§ 165.152. By comparison, Section 165.153(a) provided that “[a] person commits an
offense if the person practices medicine without a license or permit. . . .” Id.§ 165.153 (emphasis added).
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“implied repeal” of Section 165.153. Id. at 799. Diruzzo argued that the provisions
were in pari materia and should be construed together to give meaning to the whole.
Id.
In reversing the convictions, the court held that (1) repeal of laws by
implication is not favored, (2) while a later-enacted statute that contradicts an earlier
statute effectively repeals it, if the original provision can be construed in harmony
with the amendment, that is the preferred judicial response so as to avoid implied
repeal, and (3) when statutes are in pari materia, they are to
“be taken, read, and construed together, each enactment in reference to
the others, as though they were parts of one and the same law.” [Cheney
v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988).] Most importantly
for present purposes, “[a]ny conflict between their provisions will be
harmonized, if possible, and effect will be given to all the provisions of
each act if they can be made to stand together and have concurrent
efficacy.” Id. See A. Scalia & B. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS § 27, at 180 (2012)
(“[T]here can be no justification for needlessly rendering provisions in
conflict if they can be interpreted harmoniously.”); TEX. GOV’T
CODE § 311.021(2) (Code Construction Act) (“In enacting a statute, it
is presumed that . . . the entire statute is intended to be effective[.]”).
Id. Citing to Cheney, the court noted that
[i]t is a settled rule of statutory interpretation that statutes that deal with
the same general subject, have the same general purpose, or relate to the
same person or thing or class of persons or things, are considered as
being in pari materia though they contain no reference to one another,
and though they were passed at different times or at different sessions of
the legislature.
Id. (citing Cheney, 755 S.W.2d at 126).
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The court held that the provisions were in pari materia and harmonized them
by holding that Section 165.152 applied only to licensed physicians who practiced
medicine in violation of the statute. Persons practicing medicine without a license
commit a Class A misdemeanor under Section 165.151 unless they commit an act that
invokes the enhancement provisions to a felony offense under section 165.153. Id. at
801–02. Because the indictment only charged Diruzzo with practicing medicine
without a license, the court held that it only charged misdemeanor offenses and the
district court lacked jurisdiction to hear the case. Id. at 804.
As applied to this case, we note that implied repeal of statutes is disfavored.
Thus, if Section 46.02(a-1) can be harmonized with the subsequent amendment found
in Section 46.02(a-6), that will be the favored way of resolving the purported conflict.
Are Sections 46.02(a-1) and 46.02(a-6) in pari materia? They do not reference
each other but, as charged here, they deal with overlapping subject matter—
intoxicated individuals in vehicles with handguns. They have the same general
purpose, to criminalize (and presumably deter) some conduct that may involve
intoxication and possession of a handgun. We hold that the provisions are in pari
materia. See id. at 799. Therefore, “[t]heir provisions should be construed
harmoniously, and in such a way as to render every part efficacious, to the extent they
can plausibly be made to do so.” Id.
Can the two provisions be construed in a harmonious fashion? Yes. Although
the two provisions have significant overlap, they are not identical. Section 46.02(a-6)
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provides that a violation occurs if a person is intoxicated and in possession of a
handgun unless the person is directly en route to or inside of a vehicle which he/she
owns or has the right to possess. Tex. Penal Code Ann. § 46.02(a-6). This section
does not address the situation where the accused is operating a motor vehicle as
opposed to merely being inside of the vehicle. Likewise, Section 46.02(a-1) applies to
a person who intentionally, knowingly, or recklessly carries on or about his or her
person a handgun in a motor vehicle or watercraft “that is owned by the person or
under the person’s control at any time in which . . . the person is engaged in criminal
activity, other than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic or boating.” Id. § 46.02(a-1) (numbering omitted). DWI is a criminal
activity. Id. § 49.04. Thus, Section 46.02(a-1) has elements that are in addition to those
of Section 46.02(a-6), including mens rea and the elements of the criminal activity, such
as operating a motor vehicle while intoxicated.
The elements necessary to prove that a person committed DWI are: (1) a
person; (2) who is intoxicated; (3) at the time of; (4) operating; (5) a motor vehicle;
(6) in a public place. Id.; State v. Bara, 500 S.W.3d 582, 586–87 (Tex. App.—Eastland
2016, no pet.). Even where a person is not conscious inside their parked vehicle when
confronted by law enforcement, they may still be guilty of having “operated” their
vehicle while intoxicated based on a totality of the circumstances. See Kinnett v. State,
623 S.W.3d 876, 898 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d); Wilkins v.
9
State, No. 02-19-00324-CR, 2021 WL 278311, at *4 (Tex. App.—Fort Worth Jan. 28,
2021, no pet.) (mem. op., not designated for publication).
Thus, the two provisions can be harmonized. Under Section 46.02(a-6), it may
not be an offense if an intoxicated person is simply inside his vehicle in possession of
a handgun. It may become a violation of section 46.02(a-1) if that intoxicated person,
with the requisite mens rea for unlawful possession of the firearm, operates that vehicle
while in possession of a handgun. We therefore hold that the information in this
cause alleged an offense, and the trial court reversibly erred by quashing the
information and discharging Villanueva.
4. Conclusion
The trial court’s order quashing the information and discharging Villanueva is
reversed and the case is remanded to the trial court for further proceedings not
inconsistent with this opinion.
/s/ Mike Wallach
Mike Wallach
Justice
Publish
Delivered: June 15, 2023
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