State v. Hunter

606 S.W.3d 836

The STATE of Texas, Appellant

v.Jason Dean HUNTER, Appellee

NO. 03-18-00424-CR

Court of Appeals of Texas, Austin.

Filed: May 28, 2020

Rehearing and Reconsideration En Banc Denied August 14, 2020

Anthony B. Cantrell, San Antonio, for Appellee.

Stacey M. Soule, Austin, Joshua D. Presley, New Braunfels, for Appellant.

Before Chief Justice Rose, Justices Kelly and Smith

OPINION

Jeff Rose, Chief Justice

This is the State's pretrial appeal of an order quashing one count of an indictment. See Tex. Code Crim. Proc. art. 44.01(a)(1). Jason Dean Hunter stands charged in Count I of an indictment with the first-degree felony offense of solicitation to commit capital murder based on text messages sent to his girlfriend E.E. requesting that she obtain an abortion.¹ See Tex. Penal Code §§ 15.03 (defining offense of criminal solicitation), 19.03(a)(8) (defining offense of capital murder where individual murdered is under age ten). Hunter filed a motion to quash contending that the indictment fails to allege an offense and violates his constitutional rights. The district court signed an order granting the motion and dismissing Count I, which the State challenges in six issues. We will affirm the order quashing Count I of the indictment.

BACKGROUND

Count I of Hunter's indictment charges him with the offense of solicitation to commit capital murder. See id. §§ 15.03(a) ("A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission"), (d) (defining criminal solicitation offense as first-degree felony), 19.03(a)(8) (defining offense of capital murder as person's commission of "murder as defined under section 19.02(b)(1) and ... the person murders an individual under 10 years of age"). Solicitation to commit capital murder is punishable by imprisonment for up to ninety-nine years or life. See id. §§ 12.32(a), 15.03(d) (defining criminal solicitation offense as first-degree felony). The indictment alleges that Hunter committed the charged offense by sending a series of offensive, expletive-filled text messages to E.E., and quotes excerpts of those texts. Count I states:

COUNT I

THE GRAND JURORS, duly selected, organized, sworn and empaneled as such for the County of Comal, State of Texas, at the July term, A.D., 2016, of the 207TH Judicial District Court for said County, upon their oaths present in and to said Court that in the county and state aforesaid, and before the presentment of this indictment, on or about the 20th day of October, 2015, JASON DEAN HUNTER, hereinafter styled Defendant, did then and there, with intent that a capital felony be committed, to-wit: the murder of the unborn child of [E.E.], a child under the age of ten years of age, did request, command or attempt to induce the said [E.E.] to engage in specific conduct to cause the death of said unborn child, to-wit: the said JASON DEAN HUNTER by text messages stated:

"I don't have a kid mother f—r you have a kid try and give birth to it see what happens";

"so I will see you soon mother f—r ... when you turn around one night when its really dark I'm going to be right there ... Well [E.] like I said to you on the phone I'm going to enjoy doing it to you and you have no idea what I am. Anyway I sent your mother news of you and your text talking about the baby so she knows you're pregnant have a nice evening bitch. And you and your family are not raising this kid guaranteed.... if you had any clue does monsters under your f—g bed would look like f—g daisies if you knew what I'm capable of. [E.] you and never give birth I promise you";

"I'll cut that f—g baby i love you I'll put in a f—g blender important your f—g throat if you f—g lied to me again you f—g piece of shit"; or

"Hey I told you not having that kid and I meant it bitch. You are not allowed to have my child it's not going to happen get used to that fact now. I will go to the ends of this f—g earth to make sure you don't";

"I want to make this loud and clear your life is going to be miserable I do not want you raising that kid with his f—g nose turned up the way yours is it's not going to happen in the only way that would be assure if if you didn't have that kid ... Its my baby as well and yes you are going to kill it I promise you you won't make it through a full term";

"quit trying to buy time [E.] ... And time is running out a lot quicker than you think it is ... come one [E.] it's just a little maggot inside of you. I know you are a sloth also but get up. While you're sleeping I'll be busy ... You can go get it done or I will have you do it yourself you pick ... Since you have chosen not to take me seriously the price for that will be paid shortly and this will be just a taste of what is to come";

"It's just a matter of a little pill right now not too much longer it's a matter of putting a shop vac up your c—t and sucking the body parts out ... Time is of the essence love";

"I assure you your family will not be raising our child ... your own hand [E.] your own hand think about it ... There's not going to be a child [E.] ... Cuz I'm going to spend a lot of time in jail for what I'm going to do"; or

"Oh you mother f—s think you going to play me I will put every one of your f—g throats. You're going to get it now bitch you're dead ... affecting what I'm not going to let you have the kid ... It takes one half second to slash a throat didn't f—k with me."

[Spelling, punctuation, and typographical errors and expletives in original.].

Hunter filed a motion to quash challenging Count I contending that "it does not appear from the indictment that an offense against the law was committed" and specifically, that no legislative intent or legal precedent exists for the State to interpret his words as criminal solicitation of capital murder as alleged in Count I. See Tex. Code Crim. Proc. art. 27.08(1) (providing for exception to substance of indictment when "it does not appear therefrom that an offense against the law was committed by the defendant"); see also id. art. 1.14(b) (requiring defendant to object to defect of substance in indictment before date trial on merits commences or defendant "waives and forfeits right to object" to such defect). Hunter's motion to quash also contended that the indictment violates his due-process, equal-protection, and free-speech rights under the United States and Texas Constitutions.

The district court held a hearing on the motion and considered the parties' legal arguments.² After taking the matter under advisement, the district court granted the motion to quash in an order stating, "Having received the arguments of counsel and considered the applicable authorities as to whether Count I of the instant indictment properly alleges that an offense against the laws of the State of Texas was committed by the Defendant, the Court concludes, as a matter of law, it does not." The district court concluded "as a matter of law—not fact," that Hunter did not have adequate notice because the indictment "does not, and cannot—under current Texas law, sufficiently allege specific conduct that would constitute a felony offense that the Defendant solicited Ms. [E.] to commit."³ The order noted that "[t]his specific issue appears to be a matter of first impression in the State of Texas" and specified that the ruling was "based only upon state statutory grounds" and not on the constitutional arguments in the motion to quash.⁴ The district court dismissed Count I and severed it into a separate cause. The court's ruling is the subject of this appeal.

DISCUSSION

The State contends that the district court erred by quashing Count I of Hunter's indictment, among other reasons, because the provisions of the criminal solicitation statute in section 15.03 of the Penal Code do not support the district court's conclusion that Hunter cannot be prosecuted because E.E., the person that Hunter solicited, cannot be prosecuted.⁵

The sufficiency of a charging instrument presents a question of law. State v. Ross , 573 S.W.3d 817, 820 (Tex. Crim. App. 2019) ; State v. Zuniga , 512 S.W.3d 902, 906 (Tex. Crim. App. 2017) ; Smith v. State , 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Accordingly, we review a trial court's ruling on a motion to quash de novo. Ross , 573 S.W.3d at 820 ; Zuniga , 512 S.W.3d at 906 ; Smith , 309 S.W.3d at 13-14. We uphold the trial court's ruling if it is correct under any theory of law applicable to the case. Zuniga , 512 S.W.3d at 906.

We construe the Penal Code statutes addressed in this appeal by looking to their literal text and attempting to discern the fair, objective meaning of that text when it was enacted. Lang v. State , 561 S.W.3d 174, 179-80 (Tex. Crim. App. 2018) ; Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (noting that focus is on literal text because it is "the only definitive evidence of what the legislators (and perhaps the Governor) had in mind when the statute was enacted into law" and because "[t]here really is no other certain method for determining the collective legislative intent or purpose at some point in the past"). " ‘[I]f the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.’ " Lang , 561 S.W.3d at 180 (quoting Boykin , 818 S.W.2d at 785 ). In our interpretation of the literal text of a statute, "we must ‘presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.’ " Id. (quoting State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ). Words and phrases are read in context and construed using the...