holding there was sufficient evidence to establish that defendant misappropriated fiduciary property when he cashed checks given to him as contributions for the benefit of funding citizens’ political-action committee
How later courts described this case
- holding there was sufficient evidence to establish that defendant misappropriated fiduciary property when he cashed checks given to him as contributions for the benefit of funding citizens’ political-action committee
- explaining that when First Amendment rights are not implicated, a court must first consider whether- the statute is impermissibly vague as applied to the challenging party’s specific conduct
- holding that where no First Amendment rights are involved, the court need only determine whether the statute is unconstitutionally vague as applied to the challenging party’s conduct
Written by the judges who cited it.
Distinguished
Distinguished by State v. CARAMACO, 203 S.W.3d 596 (2006)
However, Bynum is distinguishable because it involved a challenge to the constitutionality of a misapplication of fiduciary property offense which did not discuss any law enforcement guidelines, or guidelines necessary for a court to find that a statute inadequately details prohibited conduct and must be relegated to subjective interpretation, which might be applicable in
The opinion
MILLER, Judge,
dissenting.
I dissent to the majority’s disposition of appellant’s last ground for review. The issue, as the majority correctly points out, is whether an accused has shown a particularized need for a transcript of a witness’s grand jury testimony, if that witness has used that testimony to refresh his recollection prior to trial. The majority concludes, by implication, that appellant did not show a particularized need when it wrote “the trial court’s refusal to give the appellant access to Cunningham’s grand jury testimony did not constitute an abuse of discretion.” At p. 783.
Historically, we have held that it is within the sound discretion of the trial court when the defendant may be permitted to inspect grand jury testimony. See McManus v. State, 591 S.W.2d 505, 523 (Tx.Cr.App.1979) and cases cited therein. The criteria that has been repeatedly, albeit left unexplained, articulated are whether the defendant has shown “some special reason” or “particularized need.” The majority finds:
The existence of a particularized need is dependent upon the totality of circumstances. While Cunningham was the appellant’s primary accuser and the State’s chief witness, this alone is insufficient to show a particularized need. What is troubling, however, is the practice of al *784 lowing a testifying witness to review his grand jury testimony prior to trial, without also allowing the defendant to review the testimony. This factor certainly militates in favor of a showing of particularized need, [citation omitted] However, the appellant has otherwise made no showing of a particularized need or special reason for such testimony. Inconsistencies alone do not establish the existence of a particularized need or a special reason, [citation omitted]
I disagree that this does not establish a particularized need. 1
Over two decades ago the United States Supreme Court addressed what constitutes a showing of particularized need when a defendant attempts to obtain transcripts of grand jury testimony. The Supreme Court in United States v. Procter & Gamble Company, 356 U.S. 677, 683 , 78 S.Ct. 983, 987 , 2 L.Ed.2d 1077 (1958) stated:
We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like. Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly. (emphasis added)
The intent of the appellant in this case was to see the information that the chief prosecution witness utilized to refresh his recollection. It is apparent that the United States Supreme Court views this one factor alone as a sufficient demonstration of a particularized need. I would also find that where the grand jury testimony is from the States’s key witness appellant has shown a particularized need.
To preclude the limited access to relevant or potentially relevant grand jury testimony flies in the face of every notion óf justice. As the United States Supreme Court stated:
[I]t is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations.
Dennis v. United States, 384 U.S. 855, 873 , 86 S.Ct. 1840, 1851 , 16 L.Ed.2d 973 (1966).
For these reasons, I respectfully dissent.
CLINTON, J., joins.
. It strikes me as the height of illogic to expect a defendant to ascertain inconsistencies in grand jury testimony when theoretically it is secret and unattainable by the defendant. Requiring the accused first to show inconsistencies between the grand jury testimony and the witness’s testimony at trial in actuality denies the accused evidence that is material and relevant to his defense. Therefore, I would not require appellant to show any inconsistencies between the witness’s grand jury and trial testimony to show particularized need.