Summary
holding that misstatements of law made during voir dire examination requires reversal only if the appellant demonstrates harm under a non-constitutional error harm analysis
Summary of this case from Barrera v. StateOpinion
NO. 14–13–00839–CR
2015-11-18
Patrick Marcel Brown, Appellant v. The State of Texas, Appellee
Nicolas R. Hughes, Houston, TX, for the Appellant. Heather Hudson, Houston, TX, for State.
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1382169
Nicolas R. Hughes, Houston, TX, for the Appellant. Heather Hudson, Houston, TX, for State.
Panel consists of Justices Boyce, Jamison, and Donovan.
OPINION
John Donovan, Justice
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. SeeTex. Penal Code Ann. § 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) Appellant 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:
[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.
SeeTex. 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'd416 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 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.
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. SeePineda v. State, 2 S.W.3d 1, 10 (Tex.App.–Houston [1st Dist.] 1999, pet. ref'd). We review for abuse of discretion the trial court's ruling on an objection to a hypothetical. SeeThompson 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 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 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 himself 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 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. SeeTex.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)).
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. SeeDelgado 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 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. SeeMeyers v. State, No. 05–03–01716–CR, 2005 WL 2362589, at *4 (Tex.App.–Dallas Sept. 27, 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. SeeMoff, 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, 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. Code Crim. Ann. § 21.03 (West, Westlaw through 2013 C.S.). A defendant must receive notice of the “nature and cause” of the accusations against him. SeeU.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. SeeKellar 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 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. SeeEdmond, 933 S.W.2d at 128; see alsoMays, 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 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. SeeFlores, 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. SeeNix 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 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.
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. SeeTex.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.” SeeTex.R. Evid. 404(b). Rule 609(f) states generally that evidence of a conviction is not admissible if notice of intent to use the conviction is not provided to by the proponent of the evidence upon timely written request by the adverse party. SeeTex.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.” SeeTex. 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. SeeOprean, 201 S.W.3d at 728. We overrule appellant's sixth issue.
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. 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. SeeGillenwaters 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.”
.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 ...” SeeTex.R.App. P. 21.6.
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. SeeCity 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.1980), cert. denied449 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, 842–843 (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. SeeState 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. SeeDeWillis 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.” SeeDuncantell, 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 overbreadthattack 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 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. SeeDuncantell, 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 Byrum 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.” SeeDuncantell, 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.” SeeUnited States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (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 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, nonpracticing 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.SeeManrique, 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. SeeCelis, 354 S.W.3d at 32 (citing Manrique, 40 S.W.3d at 554). The State of Texas has a compelling interest in this regulatory framework; the benefit is to the citizens as a whole. Seeid. at 33 (citing Sperry v. Florida, 373 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 Id. 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. Seeid. at 32 (citing Garcia, 823 S.W.2d at 797); Manrique, 40 S.W.3d at 554. We reject appellant's overbreadth claim. Id.
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. SeeWatson 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. SeeCelis, 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. Seeid.; see alsoEx 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. SeeShaffer v. State, 184 S.W.3d 353, 364 (Tex.App.–Fort Worth 2006, pet. ref'd).
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. SeeCelis, 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. SeeTex. Penal Code Ann. § 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.”).
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.”
To establish that the statute is unconstitutionally vague, appellant must demonstrate that Section 38.122 is unconstitutionally vague in all of its applications. SeeEx 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 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. SeeCelis, 354 S.W.3d at 33 (citing Sperry, 373 U.S. 379, 383, 83 S.Ct. 1322) (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. SeeEx 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.