State v. Malone

THE STATE OF TEXAS, APPELLANT/CROSS-APPELLEE, APPELLANT v. EDWARD MALONE, APPELLEE/CROSS-APPELLANT, APPELLEE

NO. 12-17-00074-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

May 31, 2018

APPEAL FROM THE 273RD JUDICIAL DISTRICT COURT SAN AUGUSTINE COUNTY, TEXAS

OPINION

The State of Texas appeals the trial court's grant of Edward Malone's motion to quash his indictment for falsely holding himself out as a lawyer. Malone cross appeals the trial court's denial of his pretrial application for writ of habeas corpus. In four issues, Malone challenges the constitutionality of the statute under which he was indicted. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

Appellant was charged by indictment with falsely holding himself out as a lawyer. He filed a motion to quash the indictment and a pretrial application for writ of habeas corpus. After a hearing, the trial court denied the application for writ of habeas corpus but granted the motion to quash the indictment. This appeal followed.

MOTION TO QUASH INDICTMENT

In its sole issue, the State argues that the trial court erred by granting Malone's motion to quash the indictment because "[t]he prosecutor in this case did not request a dismissal and no other facts giving the trial court authority to dismiss the criminal case were presented." Malone responds that the trial court did not err because the indictment (1) does not provide adequate notice of the charges, (2) alleges a factual impossibility, and (3) is tainted by false information provided to the grand jury.¹

Notice

A person commits the offense of falsely holding himself out as a lawyer if he,

with intent to obtain an economic benefit for himself, holds himself out as a lawyer, unless he 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 bars or licensing authorities of any and all other states and foreign countries where he is licensed.

TEX. PENAL CODE ANN. § 38.122(a) (West 2016).² The indictment in this case alleges that Appellant

did then and there with intent to obtain an economic benefit for himself, hold himself out as a lawyer, to-wit: by stating in the local paper that he was a defense attorney in San Augustine, Texas, and the defendant was not then and there in good standing with the State Bar of Texas and the state bar of Virginia, where the defendant was licensed to practice law[.]

In his motion to quash, Malone contended that the indictment fails to clearly allege (1) a holding out, (2) an economic benefit, (3) the state in which he was not in good standing, and (4) the state in which he was required to be in good standing. A charging instrument must convey sufficient notice to allow the accused to prepare a defense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). In an indictment, the offense must be set forth in plain and intelligible words. TEX. CODE CRIM. PROC. ANN. art. 21.02 (West 2009). The indictment must include everything that is necessary to be proved. Id. art. 21.03 (West 2009). The certainty required in an indictment is such as will enable the accused to plead any resulting judgment in bar of another prosecution for the same offense. Id. art. 21.04 (West 2009). An indictment is sufficient if it

charges the commission of the offense in ordinary and concise language in such a manner as toenable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.]

Id. art. 21.11 (West 2009).

In most cases, an indictment that tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice. Barbernell, 257 S.W.3d at 251. However, the information may be insufficient when the statutory language fails to be completely descriptive. Id. The statutory language is not completely descriptive when it defines a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission by the defendant. Id. If the prohibited conduct is statutorily defined to include more than one manner or means of commission, the state must, upon timely request, allege the particular manner or means it seeks to establish. Id. We review a trial court's decision to quash an indictment for failure to provide adequate notice de novo. See id. at 251-52.

Malone argued that the indictment should be quashed because it fails to allege that he held himself out as a lawyer. Initially, we note that the indictment tracks the statutory text of the offense, which is generally sufficient to provide a defendant with adequate notice. See id. at 251. Additionally, the indictment specifies the act of holding out as "stating in the local paper that he was a defense attorney in San Augustine, Texas."

In analyzing whether an indictment provides adequate notice, we perform a two-step analysis. Id. at 255. First, we identify the elements of the offense, which include (1) the forbidden conduct, (2) the required culpability, if any, (3) any required result, and (4) the negation of any exception to the offense. Id. Second, when the Legislature defines an element of the offense that describes an act or omission, we must determine whether the definition provides alternative manners or means in which the act or omission can occur. Id. If it does, the indictment supplies adequate notice only if it alleges, in addition to the elements of the offense, the specific manner and means of commission the state intends to prove at trial. Id.

Here, the elements of falsely holding oneself out as a lawyer are (1) a person (2) holds himself out as a lawyer (3) with intent to obtain an economic benefit for himself (4) at a time when he is not licensed to practice law in this state, another state, or a foreign country and 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 he is licensed. The forbidden conduct—or the act—isholding oneself out as a lawyer. The Legislature has not defined "holding out." Therefore, we conclude that the notice was adequate even without specification of the act of holding out. See id.

However, Malone contends that the act specified in the indictment does not constitute "holding out." He notes that to prove a couple held themselves out as married in a common law marriage case, proof that they consistently conducted themselves as a married couple is required. See, e.g., Ex parte Threet, 160 Tex. 482, 486, 333 S.W.2d 361, 364 (1960). Malone urges us to read into the false lawyer statute a similar requirement of a pattern of holding out. We decline to do so. When a statute is clear and unambiguous, the Legislature must be understood to mean what it expressed, and it is not for the courts to add to or subtract from the statute. Lomax v. State, 233 S.W.3d 302, 308 (Tex. Crim. App. 2007). Here, the statute is clear and unambiguous. The Legislature did not require proof of a pattern, and we will not create such a requirement. We conclude that by alleging that Malone held himself out as a lawyer "by stating in the local paper that he was a defense attorney in San Augustine, Texas," the indictment sufficiently alleges a holding out.

Malone further argued that the indictment should be quashed because it does not explain what economic benefit he intended to obtain for himself. We disagree. "Economic benefit" is not an act or forbidden conduct. Therefore, the particular economic benefit Malone intended to obtain for himself was not required to be specifically alleged in the indictment. See State v. Jarreau, 512 S.W.3d 352, 355 (Tex. Crim. App. 2017) (indictment for delivery of a dangerous drug was not required to specify particular definition of dangerous drug because definitions did not concern the act, which was "deliver or offer to deliver").

Additionally, Malone argued that the indictment should be quashed because it does not clearly allege which state bar he was not in good standing with. We agree that the indictment does not clearly allege which state bar (or bars) Malone was not in good standing with. Nevertheless, this omission does not result in a lack of adequate notice. Not being in good standing with a state bar is not an act or forbidden conduct. Therefore, the particular state bar (or bars) with which Malone was not in good standing is not required to be specifically alleged in the indictment. See id.

Finally, Malone argued that the indictment should be quashed because it does not clearly allege which state bar he was required to be in good standing with. We observe the plainmeaning of the statutory text to be that a person may violate the statute unless he is in good standing with the State Bar of Texas and the state bars of all other states where he is licensed. The indictment tracks the statutory text and asserts that Malone violated the statute because he was not in good standing with both the State Bar of Texas and the state bar of another state where he was licensed, namely Virginia. We conclude that Malone's argument here is without merit. Accordingly, we conclude that the trial court could not have properly granted the motion to quash on the basis of inadequate notice.

Factual Impossibility

Malone further argued that the trial court should grant his motion to quash because the indictment alleged a factual impossibility, namely, that he was "not then and there in good standing with the State Bar of Texas and the state bar of Virginia, where [he] was licensed to practice law." Malone interprets this text to allege that he was licensed to practice law in Texas, which he contends is false because his Texas law license was canceled. Consequently, he argues that he could not have been in "bad standing" in Texas...