stating that, in the absence of special definitions, statutory language under attack as vague can be measured by common understanding and practices or construed in the sense generally understood
How later courts described this case
- stating that, in the absence of special definitions, statutory language under attack as vague can be measured by common understanding and practices or construed in the sense generally understood
- statutes are "vested with a presumption of validity and this Court is duty bound to construe such statutes in such a way as to uphold their constitutionality”
- standard for review for vague statute is the same under both federal and State Constitutions
- and cases cited therein
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
On original submission we affirmed appellant’s “four misdemeanor convictions for deceptive business practices.” Leave to file appellant’s motion for rehearing has been granted to make a determination whether four or one misdemeanor conviction resulted in this case.
The information in this case alleged, in four identified counts, the same deceptive business practice was committed by the appellant on four distinct days against four distinct victims. That portion of the court’s charge which applied the law to the facts of the case reads:
*422 Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, ARN ELY, on any one or more of the dates as alleged in the four counts of the information, in the County of Harris, and State of Texas, did then and there in the course of business intentionally or knowingly or recklessly or with criminal negligence, commit a Deceptive Business Practice by making a materially false or misleading statement in connection with the purchase or sale of property or service, you will find the defendant Guilty of the offense of Deceptive Business Practice and say so by your verdict. But if you do not so believe or if you have a reasonable doubt thereof on any one or more of the dates as alleged in the four counts of the information you will acquit the defendant and say by your verdict “Not Guilty”.
The trial court provided the jury with a verdict form divided into four sections which would permit the jury to find the appellant guilty or not guilty of each count alleged in the information.
On original submission, the State, in the introduction of its brief, submitted that the judgment should be reformed to reflect a conviction for only one count. The authority they cited in support of their request, however, is inapposite, except insofar as it supports the power of this Court to reform judgments. Antwine v. State, Tex.Cr.App., 518 S.W.2d 830 .
A careful reading of the trial court’s charge to the jury in this case supports us in our conclusion that it only authorized the jury to find the appellant guilty of one deceptive business practice offense. The judgment of conviction is therefore reformed to reflect that the defendant is guilty of the offense of “a deceptive business practice as charged in the information, a misdemeanor, as found by the jury, and that he be punished, as found by the jury, by a fine of $2,000.00 and 180 days’ confinement in jail.”
Appellant’s motion is granted in part and as reformed, the judgment is affirmed.