Jurisdictional Statement — Taylor v. Texas

wo. Sad- 5430 Supreme Court, US,

FILED

OCT 15 1982

IN THE SUPREME COURT OF

Alexander L. Steves, Clerk

THE UNITED STATES nibs

OCTOBER TERM, 1983

RICHARD DWAYNE TAYLOR, APPELLANT

Vv.

THE STATE OF TEXAS, RESPONDENT

S. PRICE SMITH, JR.

Attorney for Appellant

State Bar No. 18753500

210 Executive Building

Wichita Palls, Texas 76301

(817) 766-1700

QUESTIONS PRESENTED

Did the Court of Appeals err in holding Art. 30.02(d) (3),

Tex. Penal Code Ann., constitutional by finding that the words

“injures” or attempts to injure" were not so vague and

ambiguous as to violate the Due Process Clause of the

Fourteenth Amendment of the Constitution of the United States

of America?

TABLE OF CONTENTS

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AM Servic of Dallas v. State

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All Texas Racing Association v. State,

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Baylor v. State, 208 S.W.2d 558 (Tex.

Crim. App. MOE hoes ek oe kc a,

In Re Lebonson, 274 S.W.2d 76 (Tex.

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Sparks v. State, 174 S.W.351 (Tex.

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United States v. Cardiff, 344 U.S. 174 (1952) ..cccccece

United States v. Reese, 92 U.S. 214 (1876) ..ccusseccecs

Wilson v. State, 59 S.W.2d 399 (Tex.

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IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1983

RICHARD DWAYNE TAYLOR, APPELLANT

Vv.

THE STATE OF TEXAS, RESPONDENT

JURISDICTIONAL STATEMENT - STATE CRIMINAL CASE

CITATION TO OPINION BELOW

The majority of the opinions of the Court of Appeals

is not officially reported but is annexed as Appendix A. The

order of the Texas Court of Criminal Appeals is not reported.

The order overruling the Petition for Discretionary Review

is annexed as Appendix B. Appellant's Notice of Appeal

is annexed as Appendix C.

STATEMENT OF JURISDICTION

In affirming Appellant's conviction, the Texas Court

of Appeals sustained the constitutionality of Art. 30.02 (d) (3),

Tex. Penal Code Ann., which provides as follows:

"A person commits an offense, if, without

the effective consent of the owner, he:

enters a building not then open to the

public with intent to commit a felony or

i theft. (d) An offense under this section

is a felony of the first degree if: (3)

any party to the offense injures or attempts

to injure anyone effecting entry or while

in the building or in immediate flight from

the building.

The jurisdiction of this Court is conferred by Title 28,

U. S. Code §1257(2).

ron ee MI

United States Constitution, Fourteenth Amendment,

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Due Process Clause.

STATUTORY PROVISIONS INVOLVED

Art. 30.02(d) (3), Tex. Penal Code Ann.

A person commits an offense if, without the effective

consent of the owner, he: enters a habitation, or a building

(or any portion of a building) not then open to the public,

with intent to commit a felony or theft. (d) An offense

under this secticn is a felony of the first degree if: (3)

any party to the offense injures or attempts to injure anyone

in effecting entry or while in the building or in immediate

flight from the building.

STATEMENT OF THE CASE

This is an appeal from the 78th Judicial District Court,

Wichita County, Texas, Honorable Stanley C. Kirk presiding.

Richard Dwayne Taylor went to trial on the charge of burglary

and while in the building, the said Richard Dwayne Taylor did

injure the said Ronnie Hale by stabbing him with a sharp

instrument, to-wit: one blade of a pair of scissors, alleged

to have been committed on the 10th day of December, 1977.

Richard Dwayne Taylor was convicted of an offense on October 18,

1978, and was sentenced on December 13, 1978, to life imprisonment

in the Texas Department of Corrections and thereupon gave his

notice of appeal to the Court of Criminal Appeals of the State of

Texas. The case was subsequently transferred to the Court of

Appeals, Second Supreme Judicial District. The Court of

Appeals, Second Supreme Judicial District, by an opinion rendered

on April 28, 1982, affirmed Appellant's conviction. The

Petition for Discretionary Review was filed with the Texas

Court of Criminal Appeals and was overruled on July 21, 1982.

The Appellant in this cause was charged by a grand jury

indictment, which reads in pertinent part as follows:

"That Richard Dwayne Taylor, on or about the

10th day of December, A.D., 1977, and anterior

to the presentment of this indictment, in the

County of Wichita and State of Texas, did then

and there, with intent to commit theft, enter

a building which was not then open to the public,

without the effective consent of Ronnie Hale,

the owner, and while in the building the said

Richard Dwayne Taylor did injure the said Ronnie

Hale by stabbing him with a sharp instrument,

to-wit: one blade of a pair of scissors."

The term “injure” is not defined anywhere in the Penal

Code. However, Art. 1.0l(a)(7) does define “bodily injury"

and Art. 1.07(a) (34) defines “serious bodily injury." These

two definitions are quite different. It is not clear whether

the injury spoken of in Art. 30.02(d)(3), Tex. Penal Code Ann.,

is bodily injury or serious bodily injury or some other form

of injury or a combination.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

I.

This case presents the important question of whether

a person can be charged with an offense of burglary of a building

and then have their punishment enhanced to a first degree

felony, which exposes a person to life imprisonment, under a

provision of the Texas Penal Code which is vague and indefinite,

in violation of the Constitution of the United States of America,

Fourteenth Amendment, Due Process Clause.

The issue presented to the Texas Court of Appeals

was whether or not Art. 30.02(d)(3), Tex. Penal Code Ann. (1979),

is void for vagueness. The offense of burglary under the Texas

Penal Code is yenerally punishable as a second degree felony.

Fowever, subsection (d) of Art. 30.02 provides three sets of

exceptional circumstances which, if proven, elevate the offense

to one punishable as a first degree felony. The third of the

three exceptions provides that the offense is punishable as a

first degree felony if: “any party to the offense injures

or attempts to injure anyone in effecting entry or while in the

.)

building or in immediate flight from the building." The term

“injure” is not defined anywhere in the Penal Code.

The Court of Appeals addressed this point of error

at page three of their opinion. What the Court of Appeals was

doing with this opinion is rewriting the statute to change the

word “injure” as it appears in the statute to “physical injury."

Thus, by a construction, the Court of Appeals is seeking to

change the terms of the statute and, in effect, amend it. In

addition, it must be recognized that even the term “physical

injury" is not defined in the Penal Code, either. Does this

mean bodily injury or serious bodily injury. The opinion of the

Court of Appeals does not resolve the dilemma. The opinion of

the Court of Appeals still leaves the statute unconstitutionally

vague even with their interpretation.

It is well settled that appellate courts may not, under

the guise of construction, amend the statute by adding provisions

thereto, no matter how desirable those additions might seem to

the judge. AM Servicing Corp. of Dallas v. State, 380 S.W.2d

74 (Tex.Civ.App.-Dallas 1964). It is for the legislature,

not the courts, to remedy defects or supply deficiencies in the

law. Sparks v. State, 174 S.W. 351 (Tex.Crim.App. 1915). In

United States v. Reese, 92 U.S. 214 (1876), the Supreme Court

of the United States held:

"The question, then, to be determined is,

whether we can introduce words of limitation

into a penal statute so as to make it

specific, when, as expressed, it is general

only. It would certainly be dangerous if the

legislature could set a net large enough to

catch all possible offenders and leave it

to the courts to step inside and say who could

be rightfully detained and who would be set

at large.*

It has also been repeatedly held in Texas that the

courts cannot supply words, interpolate words, add or eliminate

provisions, or enlarge, extend, or restrict the scope of a law.

53 Tex.Jur. 2d, Statutes §124 at p. 179. Baylor v. State,

208 S.W.2d 558 (Tex.Crim.App. 1948); In Re Lebonson, 274 S.W.24

76 (Tex.Crim.App. 1955); All Texas Racing Association v. State,

82 S.W.2d 151 (Tex.Crim.App. 1935).

It is your Appellant's position that the statute under

which he was prosecuted is void for vagueness. As stated by the

United States Supreme Court: "The vice of vagueness in criminal

statutes is the treachery they conceal in determining what persons

are included or what acts are prohibited.” U.S. v. Cardiff,

344 U.S. 174 (1952). Art. 30.02(d) (3), Tex. Penal Code Ann.,

should be held by this Honorable United States Supreme Court

unconstitutional in that it is void for vagueness because the

term “injure” as used in the statute under examination is a term

of at least double meaning, and perhaps no meaning at all. This

Honorable Court, nor the Court of Appeals, nor the trial court

can provide a definition for this term inasmuch as our

legislature has not itself seen fit to define it. A statute cannot

be enforced where its meaning cannot be determined by any known

rules of construction, and the Appellant's conviction under

Art. 30.02(d) (3), Tex. Penal Code Ann., should be reversed and the

above-described statute held void for vagueness and the

prosecution dismicaed. Wilson v. State, 59 S.W.2d 399 (Tex.

Crim.App. 1933).

CONCLUSION

The questions presented by this appeal are substantial

and require plenary consideration by the court for their

resolution.

Respectfully submitted,

. Price

State Bar No. 18753500

210 Executive Building

Wichita Falls, Texas 76301

. (817) 766-1700

Attorney for Appellant