The opinion
Affirmed and Opinion filed May 28, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00839-CR
PATRICK MARCEL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1382169
OPINION
Appellant, Patrick Marcel Brown, appeals his conviction for falsely holding
himself out as a lawyer. He was charged by indictment with violating Section
38.122. See Tex. Penal Code § 38.122 (West, Westlaw through 2013 3d C.S.). A
jury found appellant guilty, and the trial court sentenced him to five years’
confinement.
In six issues, appellant contends (1) Section 38.122 is unconstitutional, (2)
the evidence is legally insufficient to support the conviction, (3) in voir dire
examination, the State made misstatements of law concerning Section 38.122, (4)
the trial court erred by denying a request for a jury instruction under Texas Penal
Code Section 6.01(c), (5) the trial court erred by denying appellant’s motion to
quash the indictment, and (6) Brown was provided insufficient notice of
extraneous instances of “falsely holding oneself out as a lawyer.” We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant contends the evidence was legally insufficient
to support his conviction.
When reviewing the sufficiency of the evidence, we view all evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011). This standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.
Circumstantial evidence is as probative as direct evidence in establishing guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need not
point directly and independently to guilt, as long as the cumulative force of all
incriminating circumstances is sufficient to support the conviction. Id. We review
the sufficiency of the evidence measured by the elements of a hypothetically
correct jury charge which sets forth the law as contained in the indictment.
Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). The indictment alleged as follows:
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[Appellant] . . . on or about August 10, 2011, did then and there
unlawfully, with the intent to obtain an economic benefit for himself
from J.C. Romanda, held himself out as a lawyer to J.C. Romanda,
and [appellant] was not currently licensed to practice law in this state,
any other state, or a foreign country and was not in good standing with
the State Bar of Texas and the state bar or licensing authority of any
other state or foreign country.
Appellant stipulated that he was not in good standing with the State Bar of Texas
or the state bar or licensing authority of any other state or foreign county.
Section 38.122(a) of the Texas Penal Code provides:
A person commits an offense if, with intent to obtain an economic
benefit for himself or herself, the person holds himself or herself out
as a lawyer, unless he or she is currently licensed to practice law in
this state, another state, or a foreign country and is in good standing
with the State Bar of Texas and the state bar or licensing authority of
any and all other states and foreign countries where licensed.
See Tex. Penal Code Ann. § 38.122(a).
The statute does not include alternative “manner and means.” See id.
Therefore “[t]he manner or means by which a person holds himself out as a lawyer
is not material and, therefore, would not be included in a hypothetically correct
charge.” Celis v. State, 354 S.W.3d 7, 20 (Tex. App.—Corpus Christi 2011), aff’d
416 S.W.3d 419 (Tex. Crim. App. 2013) (citing Rodriguez v. State, 336 S.W.3d
294, 299 (Tex. App.—San Antonio 2010, pet. ref’d)). Thus, the elements of a
hypothetically correct jury charge critical to this appeal are whether appellant held
himself out as a lawyer with intent to obtain an economic benefit.
The State’s evidence demonstrated that Romanda had begun to negotiate his
first house purchase. Issues with repairs and associated expenses arose, the option
period on the sale expired, and Romanda no longer desired to purchase the house.
Romanda testified he was concerned he would lose the money he had placed in
escrow. Romanda felt he was being forced to purchase the house and that, if he
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did not purchase at the original price, he might be sued. The seller’s attorney
contacted Romanda. This contact concerned Romanda because he began to
consider there may be legal expenses associated with further handling of the house
purchase. Romanda began looking for legal advice. A friend mentioned he knew
a real estate attorney, and that friend provided appellant’s information to Romanda.
Romanda testified he called appellant and explained to him that he was
worried he might face a lawsuit if he did not execute the contract and that he
wanted to be sure to avoid being sued. Appellant responded with an explanation of
the negotiation process, reasons for contract termination, and what reasons and
what forms could be used to cancel a contract. Romanda admitted he never asked
appellant whether he was an attorney, and that after his initial discussions with
appellant, Romanda believed he had hired an attorney.
Romanda testified he and appellant had significant contact, mostly over the
phone or via email. In one of their first telephone calls, they discussed the
payment of legal fees. Appellant told him not to worry about it and that, if
Romanda backed out of the contract, appellant would represent Romanda as the
agent for a new house and that he would be paid his legal fees out of the
commission paid to appellant’s wife, who would be the actual real estate agent on
the possible purchase.
Romanda also testified about various websites for people working with their
mortgages, trying to renegotiate or having other problems. One of those websites
included contact information for “Patrick Brown, managing partner PCC Marcel &
Associates, LLC.” Romanda believed that was the law firm where appellant was
employed because he found that information in the contact section of various legal
websites.
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Romanda testified that he appeared at the first closing with his real estate
agent. Romanda requested appellant attend the closing as his lawyer to ensure
things went smoothly. After this initial meeting, the attorney for the seller
contacted Romanda asking for the contact information for his attorney. Romanda
asked appellant what he should provide. Appellant responded that Romanda
should use appellant’s “PCC Marcel” contact information.
The State presented an email, sent by appellant to Romanda, stating:
You can let Jeff [the mortgage broker helping Romanda] know I am
good with our conversation and I understand about the privacy law.
He was aware that I was your counsel so information provided to me
is privaledge (sic), so it was fine for him to disclose information.
The State also proffered two additional email communications in which Romanda
provided appellant’s contact information to the seller’s attorney, as Romanda’s
lawyer. Appellant is copied on those email messages. The record does not contain
evidence that appellant explained he was not Romanda’s lawyer. Finally, evidence
was admitted of Romanda’s payment to appellant for legal services—a check in
the amount of $5,000, with the memo line noting “for attorney fees.”
We hold the evidence was legally sufficient to support appellant’s
conviction. We overrule appellant’s second issue.
II. JURY VOIR DIRE
In his third issue, appellant contends that voir dire examination was
improper because the State misstated the law in a hypothetical used when
questioning venirepersons and that the error was compounded by the State in
closing argument.
As a general rule, parties are allowed to use hypotheticals during voir dire.
See Pineda v. State, 2 S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 1999, pet.
5
ref’d). We review for abuse of discretion the trial court’s ruling on an objection to
a hypothetical. See Thompson v. State, 95 S.W.3d 537, 541 (Tex. App.—Houston
[1st Dist.] 2002, no pet.) (citing Parker v. State, 792 S.W.2d 795, 798 (Tex.
App.—Houston [14th Dist.] 1990, pet. ref’d)).
During voir dire, appellant contended that the State was misstating the law.
Relevant portions of the examination are as follows:
Prosecutor: Okay. At the point where I’m sure glad that I
found an attorney, is there a duty for that person to
correct that assumption?
Prospective Juror: Oh, yes.
Prosecutor: Anybody think no? Anybody think you can sort of
just let it sit there?
Prospective Juror: Well, like the electrician, I do my own work at
home. I don’t hire anybody else. Does that mean
I’m doing it wrong? I mean, if you don’t ask me if
I’m a lawyer and I’m just telling you I can legally
help you, does that mean I’m in the wrong?
Prosecutor: If you’re practicing law, it does. If you’re doing
something that a lawyer is required to do, then,
yes. . . . . What we’re here about is somebody
representing himself, allowing themselves to be
perceived as a lawyer, allowing that to happen.
But to answer your question, or to sort of get to it,
do you believe that somebody then must say, I am
a lawyer in order to be found guilty of this
offense?
Prospective Juror: I would love to hear those words.
Prosecutor: I would love to hear those words, too . . . The
question is, though . . . . The State doesn’t have to
prove that the Defendant used specific words. In
that indictment nowhere does it say defendant
handed out a business card that said lawyer; that a
defendant said I am a lawyer. There are no magic
words. Certainly if somebody used words, what
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words they used, that’s very important . . . . Are
your feelings such that you would require that I
prove to you that somebody said, I am a lawyer
before you could convict someone?
[Several venirepersons respond in the affirmative].
Prosecutor: I have to prove those [elements in the indictment]
to you beyond a reasonable doubt. One of the
things that I don’t have to prove is that specific
words were used to create that impression. I don’t
have to prove that the Defendant said, I’m a
lawyer. Though, I can understand people saying,
you know what, I need to hear that. Would you
require that I prove that to you?
[Several venirepersons respond in the affirmative].
...
Prospective Juror: I just have a question. . . . Yes, wouldn’t that be a
lie by omission, I mean.
Prosecutor: If you let it sit there, falsely holding out as a
lawyer is whatever you as the juror, as you’re
hearing it, what makes sense to you. If you left
that impression, if you had the opportunity to
correct it, you know, obviously somebody would
have to have a reason to think, oh, wait, you mean,
right? Who’s been to the store and been asked a
question like you’re a salesperson, right? So, you
stand there, you’re looking through the shirts and
somebody says, excuse me - -
Defense counsel: Judge, I’m going to object. Judge, may we approach?
The Court: No.
Defense counsel: Well, it’s a mistake of the law. There’s no
definition of this lying by omission and going by
that road.
The Court: All right. Overruled.
Prosecutor: Okay. And so the point is you’re standing there,
you’re just a patron of the store. You’re not
necessarily trying to do anything, but at the point
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where somebody clearly believes your work there,
what do you say?
Prospective Juror: I don’t work here.
Prosecutor: So, the point is you have to have that opportunity
you have to have that open door. But if you don’t
walk through that open door, if you say, well, here
absolutely let me show you the way, right? Have
you contributed to creating that impression?
Prospective Juror: Yes.
Appellant argues that in this voir dire questioning, the State created the
impression that one could violate Section 38.122 by failing to act; that is, by
suggesting a person should correct a mistaken impression, the State permitted the
jury to convict appellant on an invalid theory. We disagree.
The trial court began voir dire by reading the indictment. The prosecutor
then explained the charge in the indictment and read again from the indictment.
The prosecutor confirmed that the State was not required to prove that appellant
use specific words to create the impression that he is an attorney. As voir dire
proceeded, the State inquired of the venirepersons:
Prosecutor: Are your feelings such that you would require that
I prove to you that somebody said, I am a lawyer
before you could convict someone?
Prospective Juror: If they do have to prove that you are a lawyer, yeah, I
want proof.
The prosecutor responded that the State had to prove the elements of the
offense beyond a reasonable doubt and that the State did not have to prove that
“specific words” were used to create the impression that someone was holding
themselves out as a lawyer, as set forth above. As the voir dire examination
proceeded, the prosecutor then used a hypothetical involving a person who
appeared to a patron shopping in a store to be a salesperson. In that context, the
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prosecutor focused on what the patron clearly believed by observing the person’s
actions which created an impression; that is, creating the impression that the person
was a lawyer.
When faced with those facts, the prosecutor remarked to the veniremen that
“at the point someone clearly believes you work there,” the person created the
impression he is a salesperson if he “walks through that open door” and says “here
absolutely let me show you the way.”
We conclude from a review of the entire voir dire examination, trial and
closing argument, that the jurors understood what was required of the offense. By
taking affirmative action—in this case, responding to an email inquiry regarding
the name of Romanda’s counsel, attending closing, stating he understood
“privaledge” communication, and negotiating a check referencing “attorney’s
fees”—appellant held himself out as a lawyer. Unless appellant corrected the
incorrect impression, he continued to hold himself out as a lawyer to Romanda.
This was the thrust of the voir dire examination. We hold the trial court did not
abuse its discretion in overruling appellant’s objection.
Further, a misstatement of law made during voir dire examination requires
that a conviction be reversed only if the appellant demonstrates harm. Thompson,
95 S.W.3d at 542 (citing Kelley v. State, 845 S.W.2d 474, 479 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d)). Rule 44.2(b) requires a conviction may be
reversed only if the appellant’s substantial rights are affected for non-constitutional
errors. See Tex. R. App. P. 44.2(b); Easley v. State, 424 S.W.3d 535, 539 (Tex.
Crim. App. 2014). Substantial rights are affected when the error has the effect of
substantially influencing the jury in reaching its verdict. Johnson v State, 43
S.W.3d 1, 3 (Tex. Crim. App. 2001) (citing King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997)).
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In voir dire, the State clarified that by taking certain actions and by not
correcting Romanda’s mistaken belief, appellant was holding himself out to be a
lawyer as an element of Section 38.122. The State carried this reasoning into its
closing argument. Appellant also argues that the State affected his substantial
rights when the State argued during closing argument: “Defendant had
opportunities to correct that [creating a mistaken impression] and didn’t.” Also in
closing argument, the State argued that appellant “let it [not correcting Romanda’s
belief] happen. With every single word, every single action, [appellant] acted
consistently with that.” The State focused on the manner in which appellant acted,
including sending email messages, threatening to sue the real estate agent, and
accepting a check for “attorney’s fees.” Further, appellant asserted during closing
argument that a violation of Section 38.122 does not occur in the absence of
appellant taking “affirmative steps” to allow Romanda to know appellant was a
lawyer. Thus, appellant directed the jury’s attention to the concept of action, as did
the State.
We conclude the voir dire exchange and closing argument did not involve a
misstatement of the law and appellant has not demonstrated harm from the line of
questioning or argument. We overrule appellant’s third issue.
III. DENIAL OF REQUEST FOR 6.01(c) INSTRUCTION
In his fourth issue, appellant asserts the trial court erred by refusing to
include in the jury charge a Section 6.01(c) instruction. The purpose of a jury
charge is to inform the jury of the applicable law and guide it in applying the law
to the facts. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).
Section 6.01(c) of the Texas Penal Code provides that a person who fails to
perform an act “does not commit an offense unless a law as defined by Section
1.07 provides that the omission is an offense or provides that he has a duty to
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perform the act.” Tex. Penal Code Ann. § 6.01(c) (West, Westlaw through 2013
3d C.S.).
As set forth above, appellant was charged with holding himself out to be a
lawyer when he was not. Because he was not charged with a crime of omission, he
is not entitled to the 6.01(c) instruction. See Meyers v. State, No. 05-03-01716-CR,
2005 WL 2362589, at *4 (Tex. App.—Dallas 2005, no pet.) (citing Oler v. State,
998 S.W.2d 363, 368 (Tex. App.—Dallas 1999, pet. ref’d, untimely filed))
(concluding Section 6.01(c) instruction not required because State did not charge
defendant with conduct by failure to act). We overrule appellant’s fourth issue.
IV. DENIAL OF MOTION TO QUASH INDICTMENT
In his fifth issue, appellant contends the trial court erred by denying his
motion to quash the indictment. We review a trial court’s denial of a motion to
quash an indictment de novo because the sufficiency of an indictment is a question
of law. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert.
denied, 553 U.S. 1007, 128 S.Ct. 2056, 170 L.Ed 2d 798 (2008); State v. Moff, 154
S.W.3d 599, 601 (Tex. Crim. App. 2004). Decisions involving questions of law do
not involve the credibility or demeanor of witnesses; therefore the trial court is in
no better position to resolve them. Id. Thus, we utilize de novo review.
An indictment must be specific enough to inform the defendant of the nature
of the accusations against him in order that he may prepare a defense. See Moff,
154 S.W.3d at 601. In general, a charging instrument is sufficient where it tracks
the statutory language and it provides notice of the offense. Lawrence, 240 S.W.3d
at 916. “[A]n indictment must ‘allege on its face the facts necessary (1) to show
that the offense was committed, (2) to bar a subsequent prosecution for the same
offense, and (3) to give the defendant notice of precisely what he is charged with.’”
State v. Edmond, 933 S.W.2d 120, 131 (Tex. Crim. App. 1996); Kfouri v. State,
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312 S.W.3d 89, 91 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Everything
required to be proved should be stated in the indictment. See Tex. Crim. Proc.
Code Ann. § 21.03 (West, Westlaw through 2013 C.S.). A defendant must receive
notice of the “nature and cause” of the accusations against him. See U.S. CONST.
amend. VI; TEX. CONST. art I, § 19. The specific language in the indictment is not
the sole means by which the State fulfills the due process requirement. See Kellar
v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). When a motion to quash is
overruled, a defendant is not harmed unless he did not receive notice of the State’s
theory against which he must defend. Id.
Appellant filed a motion to quash the indictment asserting he was unable to
prepare a defense because “Although each indictment tracks the language of §
38.122 Tex. Penal Code, the statute does not define ‘economic benefit’ or ‘holds
himself out as a lawyer’ . . . [and] the Defendant has not been given sufficient
notice of the alleged acts or omissions (the manner and means) by which he
violated § 38.122 Tex. Penal Code.” Appellant also argued that the indictment did
not explain which communication between appellant and Romanda the State
alleged was actionable.
The instrument alleged:
[Appellant] . . . on or about August 10, 2011, did then and there
unlawfully, with the intent to obtain an economic benefit for himself
from [Romanda], held himself out as a lawyer to [Romanda] . . . .
The record shows that appellant had notice of the specific instances in which
the State claimed he held himself out as a lawyer to Romanda. At a pretrial
hearing, the prosecutor advised the trial court that she had communicated with
appellant’s lawyer and advised him of the evidence the State anticipated
presenting. Further, the State complied with a trial court order to provide a written
summary of Romanda’s testimony, which referred to the email communications
12
admitted at trial. Counsel for appellant was also provided with a copy of the email
communications. Finally, the trial court granted appellant’s motion for
continuance, allowing appellant a week to review the documents which the State
provided shortly before trial that it claimed supported a conviction for a violation
of Section 38.122.
Finally, appellant contends the trial court erred by refusing to quash the
indictment because the State did not provide adequate notice of the “manner and
means” by which the State alleged appellant had committed an offense. “Subject
to rare exceptions, an indictment tracking the language of the statute will satisfy
constitutional and statutory requirements; the State need not allege facts that are
merely evidentiary in nature.” Flores v. State, 33 S.W.3d 907, 918 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) (citing State v. Mays, 967 S.W.2d 404, 406
(Tex. Crim. App. 1998)). An exception to this rule arises when the statute defines
the manner or means through which one can commit an offense using different
methods. Id. Where the statute defines manner and means, the indictment must
provide notice of the statutory manner or means on which the State will seek to
convict the defendant. Id. (citing Edmond, 933 S.W.2d at 128) (holding when a
statute defines manner or means of committing an offense, indictment need not
allege matters beyond the language of the statute).
Section 38.122 does not include the manner and means by which one could
hold himself out as a lawyer. It follows that, because the statute does not include
manner and means, it is not considered material, the State is not required to prove
it, and it need not be included in the indictment. See Edmond, 933 S.W.2d at 128;
see also Mays, 967 S.W.2d at 406 (concluding indictment which tracked manner
and means in statute was sufficient). In sum, when the statute defines the manner
and means of an offense, an indictment which tracks the statutory language is
13
sufficient. Id. Here, manner and means was not included in the statute; therefore,
it was not required to be included in the indictment. The indictment alleged the
elements of the offense and was sufficient. See Flores, 33 S.W.3d at 919
(concluding an information was defective because while the statute set forth
manner and means, the information did not).
Appellant appears to argue here that the State did not sufficiently identify
how he “held himself out as a lawyer,” rendering the indictment defective. We
hold that the words of the statute itself are not of “indeterminate or variable
meaning” and, thus, tracking the statute was sufficient. See Nix v. State, 401
S.W.3d 656, 663 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding
indictment sufficient where the crux of the offense was “not being a physician
licensed to practice medicine in [the] state” because defendant could reasonably
prepare his case without further description of how he handled the affairs of his
medical clinic); Cf. State v. Barbernell, 257 S.W.3d 248, 254, 256 (Tex. Crim.
App. 2008) (concluding that, for purposes of the offense of driving while
intoxicated, the definition of “intoxicated” on which the State intended to rely need
not be alleged to provide adequate notice because definitions are “purely
evidentiary matters.”). Definitions “set forth alternative means by which the State
may prove intoxication, rather than alternate means of committing the offense”
and, therefore, are evidentiary and need not be alleged in the indictment.
Barbernell, 257 S.W.3d at 256 (citing Bagheri v. State, 119 S.W.3d 755, 762 (Tex.
Crim. App. 2003) (Emphasis in original).
Further, even if the charging instrument failed to provide notice, we must
not reverse the conviction unless the error “affects the defendant’s ability to
prepare a defense.” Flores, 33 S.W.3d at 919. We must review the entire record to
determine whether a defendant was unable to prepare a defense. Id. A review of
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the record fails to show harm. The record reflects that appellant had notice of the
email messages between appellant and Romanda, which the State contended
evidenced appellant’s “holding himself out as a lawyer,” as well as Romanda’s
check written to appellant for “attorneys’ fees.” Appellant acknowledged he
received a copy of these documents, and the trial court granted appellant’s motion
for continuance to allow an additional one week to prepare to defend on these
facts. Counsel for appellant also admitted in pretrial hearings that the State had
disclosed the information it intended to offer at trial. We are unable to glean from
this record how appellant was prejudiced or how his defense was detrimentally
impacted by the language of the indictment.
We hold that the trial court did not abuse its discretion by denying
appellant’s motion to quash the indictment. We overrule appellant’s fifth issue.
V. EXTRANEOUS OFFENSES
In his sixth issue, appellant contends he was not provided sufficient notice of
extraneous instances of “falsely holding oneself out as a lawyer.” We review the
trial court’s admission of evidence under an abuse-of-discretion standard. Oprean
v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). We uphold the trial court’s
ruling if it was within the zone of reasonable disagreement. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007); Kacz v. State, 287 S.W.3d 497, 501–02
(Tex. App.—Houston [14th Dist.] 2009, no pet.).
Appellant asserts the trial court erred by failing to require the State to
produce notice of twenty-eight extraneous offenses and by admitting evidence of
certain of these extraneous offenses. Appellant’s complaints appear to be directed
at the fact that the State provided only the names of twenty-eight people who were
the alleged victims of a crime, the county in which an alleged crime or bad act
occurred, and the date.
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Appellant requested notice of extraneous offenses under Texas Rules of
Evidence 404(b) and 609(f) and Texas Code of Criminal Procedure, Article 37.07,
Section 3. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (West, Westlaw
through 2013 3d C.S.); Tex. R. Evid. 404(b) and 609(f). Rule 404(b) provides that
evidence of other crimes, wrongs or acts may be admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identify, absence of mistake, or
lack of accident” when the prosecutor provides “reasonable notice before trial that
it intends to introduce such evidence—other than that arising in the same
transaction—in its case-in-chief.” See Tex. R. Evid. 404(b). Rule 609(f) states
generally that evidence of a conviction is not admissible if not provided to the
proponent of the evidence upon timely written request. See Tex. R. Evid. 609(f).
Finally, Article 37.07, Section 3(g) requires that, upon written request, if the State
intends to introduce an extraneous crime or bad act that has not resulted in a final
conviction, “notice of that intent is reasonable only if the notice includes the date
on which and the county in which the alleged crime or bad act occurred and the
name of the alleged victim of the crime or bad act.” See Tex. Code Crim. Proc.
Ann. art. 37.07 § 3(g).
The record reflects that the State provided notice to appellant of its intention
to use evidence of prior convictions and extraneous offenses, and it supplemented
its notice. The notices included the information required by Article 37.07, Section
3(g). Additionally, appellant’s counsel reviewed the information on which the
State intended to rely at trial.
We hold the State did not violate the trial court’s discovery order and did not
thwart appellant’s preparation for, or presentation of, its defense. See Oprean, 201
S.W.3d at 728. We overrule appellant’s sixth issue.
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VI. CONSTITUTIONAL CHALLENGES
In his first issue, appellant complains that Section 38.122 is unconstitutional
as facially vague and overbroad and “as applied.” However, appellant did not urge
“as applied” challenges until he filed his motion for new trial.1 Appellant did not
present the motion for new trial to the trial court and did not obtain a ruling on the
motion. Presentment requires more than the mere filing of the motion. See
Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (holding “as
applied” challenges preserved because motion for new trial was filed and the trial
court ruled); Carranza v. State, 960 S.W.2d 76, 79–80 (Tex. Crim. App. 1998)
(analyzing former appellate rule and holding review not preserved unless
defendant brings matters to trial court’s attention in a motion for new trial and trial
court rules on the motion); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.—
Houston [14th Dist. 2004, pet. ref’d) (holding where record fails to establish
whether and how appellant presented motion for new trial to the trial court, it was
not timely presented). Thus, appellant has waived his contention that the statute
was overbroad and vague “as applied.”
A. Standard of Review
We must presume the validity of a statute and further presume that the
legislative body has acted reasonably and not in an arbitrary manner in enacting the
statute. See City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982)
cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982); Ex parte
Benavides, 801 S.W.2d 535, 537 (Tex. App.—Houston [1st Dist.] 1990, writ
dism’d); Memet v. State, 642 S.W.2d 518, 522 (Tex. App.—Houston [14th Dist.]
1982, pet. ref’d) (quoting Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir.
1
Texas Rule of Appellate Procedure 21.6 provides: “The defendant must present the
motion for new trial to the trial court within 10 days of filing it . . . .” See Tex. R. App. P. 21.6.
17
1980), cert. denied 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980), “[a]ny
statute or ordinance which proscribes certain conduct must be sufficiently definite
to ‘give a person of ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute,’ and to avoid the possibility of arbitrary and erratic
arrests and convictions.”). We will interpret the language of the statute considering
its plain meaning, “unless the language is ambiguous or the plain meaning leads to
an absurd result.” Duncantell v. State, 230 S.W.3d 835, (Tex. App.—Houston
[14th Dist.] 2007, pet. ref’d) (citing Sanchez v. State, 995 S.W.2d 677, 683 (Tex.
Crim. App. 1999)). When there are differing ways in which the statute can be
construed, we apply the interpretation which sustains the validity of the statute.
See State v. Carmaco, 203 S.W.3d 596, 599 (Tex. App.—Houston [14th Dist.]
2006, no pet.).
We review de novo a facial attack upon a penal statute because it involves
entirely a legal question. Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App.
2009) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997))
(concluding legal questions subject to de novo review). The party challenging the
statute bears the burden of establishing its unconstitutionality. See DeWillis v.
State, 951 S.W.2d 212, 214 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d)
(citing Cotton v. State, 686 S.W.2d 140, 145 (Tex. Crim. App. 1985)). “When an
appellant challenges a statute as both unconstitutionally overbroad and vague, we
address the overbreadth challenge first.” See Duncantell, 230 S.W.3d at 843.
B. Facial Challenge to the Overbreadth of Section 38.122
We will construe liberally appellant’s complaints in his motion to quash and
dismiss the indictment as urging a facial overbreadth challenge. “An overbreadth
attack on a statute is recognized only in the context of a First Amendment
challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth
18
2008, no pet.) (citing U.S. v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d
697 (1987)).
A statute or ordinance may be overbroad if in its reach it reaches a
substantial amount of protected conduct. See Duncantell, 230 S.W.3d at 843
(citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), and Bynum v. State, 762
S.W.2d 685, 687 (Tex. App.—Houston [14th Dist.] 1988, no pet.)). “A statute will
not be invalidated for overbreadth merely because it is possible to imagine some
unconstitutional applications; therefore, we will not strike down a statute for
overbreadth unless there is a “realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not
before the Court.” See Duncantell, 230 S.W.3d at 843; State v. Holcombe, 145
S.W.3d 246, 250 (Tex. App.—Fort Worth 2004), aff’d, 187 S.W.3d 496 (Tex.
Crim. App.), cert. denied, 549 U.S. 824, 127 S.Ct. 176, 166 L.Ed.2d 41 (2006).
We must determine whether the statute reaches “a substantial amount of
constitutionally protected conduct.” See United States v. Williams, 553 U.S. 285,
292 (2008); Celis, 354 S.W.3d at 31 (citing State v. Garcia, 823 S.W.2d 793, 797
(Tex. App.—San Antonio 1992, pet. ref’d). However, where the regulation of the
speech—in this case, commercial speech in its relation to the practice of law—is a
subject of substantial and legitimate government interest, the statute is not invalid
if it has an “incidental impact” on speech. Celis, 354 S.W.3d at 32 (citing Ex parte
Manrique, 40 S.W.3d 552, 553 (Tex. App.—San Antonio 2001, no pet.))
“Commercial speech is generally afforded less constitutional protection than
other forms of constitutionally guaranteed expression.” Pruett v. Harris County
Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008). “For commercial speech to
come within the provision of the First Amendment, ‘it at least must concern lawful
19
activity and not be misleading.’” Celis, 354 S.W.3d at 35 (citing Cent. Hudson
Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566, 100 S.Ct. 2343, 65
L.Ed.2d 341 (1980)).
Appellant asserts that, because the statute does not define “lawyer” or what
it means to “hold oneself out as a lawyer,” it reaches protected speech. Appellant
argues the statute touches on the speech of non-lawyer professionals, non-
practicing lawyers, or people with last names like “Barrister” who may be deprived
of creative naming opportunities for businesses.
We reject these arguments. Section 38.122 includes several elements, each
of which is capable of being readily understood: (1) a person must intend to obtain
an economic benefit for himself by (2) holding himself out as a lawyer and (3)
without holding a current license to practice law in Texas (or in another state or
foreign country) and being in good standing. Appellant has failed to show how the
statute touches on the speech of non-lawyer professionals because the statute is
focused narrowly on those individuals who meet the elements of the statute. “The
statute [38.122] affects only commercial speech in the context of employment as a
lawyer,” and it is not facially overbroad. Manrique, 40 S.W.3d at 554 (concluding
holding oneself out as a lawyer by providing legal advice was commercial speech
and did not render the statute invalid). Further, that the statute has no definition of
the term and phrase about which appellant complains does not render it overbroad.
See Manrique, 40 S.W.3d at 555 (holding in the context of a vagueness challenge,
it is simple to conclude how a person holds himself out as a member of the legal
profession).
Here, the statute seeks to regulate the practice of law—a commercial
enterprise—therefore, it is not facially overboard. See Celis, 354 S.W.3d at 32
(citing Manrique, 40 S.W.3d at 554). The State of Texas has a compelling interest
20
in this regulatory framework; the benefit is to the citizens as a whole. See id. at 33
(citing Sperry v. Florida, 372 U.S. 379, 383, 83 S.Ct. 1322, 10 L.Ed.2d 428
(1963)) (recognizing that a state has a “substantial interest in regulating the
practice of law within the State”) (other citations omitted).
Appellant also urges that neither Celis nor Manrique had the benefit of Ex
parte Lo, 424 S.W.3d 10, 24 (Tex. Crim. App. 2013) (holding the online
solicitation statute was not narrowly drawn to “effectuate a compelling state
interest” and there were more narrow means of achieving the State’s interest in
protecting minors). Appellant also argues the burden is on the State to justify
“content-based regulation of speech.” However, under Lo, the burden shifts only
where the challenged statute restricts or punishes speech based on its content. See
424 S.W.3d at 15. Lo involved the regulation of pure speech—communications
which, when applied, could restrict a person’s thoughts, which the Lo court
concluded were the beginnings of a person’s speech, and thus, could not be
restricted. See 424 S.W.3d at 25 (citing Ashcroft v. Free Speech Coalition, 535
U.S. 234, 252–53, 122 S.Ct. 1389, 1403–04, 152 L.Ed.2d 403 (2002)). The focus
in Lo was on speech based on conduct, not on commercial speech—holding
oneself out as a lawyer—conduct to which section 38.122 applies.
We are unpersuaded that Section 38.122 restricts speech based on content.
Rather, Section 38.122 regulates the commercial speech of individuals who hold
themselves out as lawyers in Texas. Celis, 354 S.W.3d at 33. We conclude that
Section 38.122 involves the regulation of commercial speech, in which an
overbreadth challenge applies weakly, if at all. See id. at 32 (citing Garcia, 823
S.W.2d at 797); Manrique, 40 S.W.3d at 554. We reject appellant’s overbreadth
claim. Id.
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C. Facial Challenge to Vagueness of Section 38.122
Appellant next argues that Section 38.122 is unconstitutionally vague on its
face. A statute is vague if persons of common intelligence are incapable of
deciphering what conduct is prohibited. See Watson v. State, 369 S.W.3d 865, 870
(Tex. Crim. App. 2012). We consider whether the statute defines “with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not permit arbitrary and discriminatory enforcement.”
Lawrence, 240 S.W.3d at 915.
Where the First Amendment is implicated, as appellant argues, a criminal
law must (1) be sufficiently clear to afford a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, (2) establish determinate
guidelines for law enforcement, and (3) be sufficiently definite to avoid chilling
protected expression. Ex parte Ellis, 309 S.W.3d 71, 86 (Tex. Crim. App. 2010).
If the vagueness challenge implicates First Amendment issues, the statute may be
held facially invalid even though it may not be unconstitutional as applied. See
Celis, 354 S.W.3d at 35 (citing Long v. State, 931 S.W.2d 285, 288 (Tex. Crim.
App. 1996)).
If the First Amendment is not implicated, a facial vagueness challenge is
sustained only if the statute is shown to be unconstitutionally vague in all of its
applications. See id.; see also Ex parte Ellis, 309 S.W.3d at 80; Lawrence, 240
S.W.3d at 915. Thus, where the First Amendment is not involved, a facial
challenge is difficult to sustain because the individual advancing the challenge
must establish that no set of circumstances exists under which the statute is valid.
See Shaffer v. State, 184 S.W.3d 353, 364 (Tex. App.—Fort Worth 2006, pet.
ref’d).
22
Appellant asserts that Section 38.122 imposes “content-based restriction” on
speech because it bans certain communication that “indicates a person is a lawyer,
as opposed to communication that indicates that a person is a florist or a nuclear
physicist.” Appellant also urges that Section 38.122 “forbids even truthful
speech.” As we noted above, commercial speech is afforded less protection that
other forms of expression which are guaranteed constitutional protection. See
Celis, 354 S.W.3d at 35 (citing Scott v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim.
App. 2010)).
Prohibited activity under Section 38.122 includes (1) holding oneself out as
a lawyer, (2) with the intent to obtain an economic benefit, (3) unless the person
meets the requirements for being a lawyer set forth in the statute. Appellant
stipulated he did not meet the requirements for being a lawyer.2 Tex. Penal Code §
38.122. This activity takes place “in the commercial context and necessarily
involves expressions of a false and misleading nature which are not protected by
the First Amendment.” Celis, 354 S.W.3d at 35 (citing Knight v. State, 91 S.W.3d
418, 425 (Tex. App.—Waco 2002, no pet.)) (concluding “speech is not protected
by the First Amendment when it is the very vehicle of the crime itself.”).
To establish that the statute is unconstitutionally vague, appellant must
demonstrate that Section 38.122 is unconstitutionally vague in all of its
applications. See Ex parte Ellis, 309 S.W.3d at 80. Yet, the examples given by
appellant would not fall within the conduct prohibited by the statute. Appellant
suggests Section 38.122 restricts communications where an individual identifies as
a lawyer or a florist. Appellant also contends the statute touches on statements
2
Appellant’s stipulation admitted he was not “currently licensed to practice law in this
state, another state or a foreign country” and not “in good standing with the State Bar of Texas
and the state bar or licensing authority of any and all other states and foreign countries where
licensed.”
23
made by a lawyer who “worked as a lawyer for 20 years” and is now applying for a
non-legal job. However, none of those communications violate Section 38.122
unless the individuals seek to obtain an economic benefit by holding himself or
herself out as a lawyer when he or she is not licensed to practice law in Texas (or
another jurisdiction) and is not in good standing.
We conclude that the State of Texas has a compelling state interest in the
regulation of lawyers. See Celis, 354 S.W.3d at 33 (citing Sperry, 372 U.S. 379,
383) (holding a state has a “substantial interest in regulating the practice of law
within the state). We agree with Celis and hold that Section 38.122 does not
“broadly prohibit” First Amendment speech. Id. Appellant has not met his burden
to demonstrate how Section 38.122 is unconstitutionally vague in all of its
applications. See Ex parte Ellis, 309 S.W.3d at 80. We overrule appellant’s sixth
issue.
Having overruled all of appellant’s issues, we affirm the judgment of the
trial court.
/s/ John Donovan
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Publish—Tex. R. App. P. 47.2(b).
24