Townsend v. State

RANDALL TODD TOWNSEND, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00049-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

November 21, 2019

On appeal from the 220th District Court of Hamilton County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Tijerina

Memorandum Opinion by Chief Justice Contreras

Appellant Randall Todd Townsend appeals his convictions for retaliation, a third-degree felony, and fraudulent filing of a financing statement, a state jail felony. See TEX. PENAL CODE ANN. §§ 36.06(a)(1), 37.101. By five issues, appellant argues that: (1) the conviction for fraudulent filing of a financing statement must be vacated because of double jeopardy; (2) the trial court erred when it failed to read its answer to the jury's question in open court; (3) the trial court assessed unconstitutional court costs; (4) court costs were incorrectly assessed twice because appellant was convicted of the two offenses in a single trial; and (5) the bill of costs incorrectly included a fine. Because we agree the two convictions violated the double jeopardy clause, we reverse the judgment of conviction for the fraudulent filing of a financing statement charge and render judgment of acquittal on that count. We affirm the retaliation judgment as modified.¹

I. BACKGROUND

In January 2017, appellant was indicted for two offenses: (1) filing a fraudulent financing statement in retaliation against a public servant and (2) filing of a fraudulent financing statement he knew was groundless or contained a materially false statement. See id. §§ 36.06(a)(1), 37.101. Appellant pleaded not guilty and elected to represent himself at trial.

At trial, the evidence showed that appellant attempted to donate toys to a day care center. Charlie Hall, the owner of the daycare center, told appellant she was not interested in any of the toys and asked him to leave. Appellant left the day care center, and Hall contacted the police. Justin Slone, a lieutenant with the Hamilton County Police Department, met with Hall, and Hall explained to him she did not want appellant to return to the daycare. Shortly thereafter, Slone found appellant in the parking lot of a church and approached him. Slone informed appellant that Hall did not want him to come back to her property and issued appellant a criminal trespass warning. Slone informed appellant that it was simply a warning not to go back to the property or otherwise criminalcharges could be filed. Appellant did not understand the reason for the criminal trespass warning and refused to sign the warning citation. Subsequently, appellant protested the criminal trespass warning with the Chief of Police and later the City Council, but they declined to take any action.

On May 28, 2015, appellant filed a lawsuit pro se against the State of Texas, Hamilton County, the City of Hamilton, and multiple individuals, including Hall, the Chief of Police, and Slone. The defendants filed a motion to dismiss and a plea to the jurisdiction. In response, appellant filed various papers with the trial court clerk in which he falsely claimed that he himself is "The Court," including "orders" purportedly denying the defendants' motions. After appellant failed to appear at a hearing on the defendants' motions, the trial court dismissed the lawsuit and issued a final judgment on September 2, 2015. Subsequently, again referring to himself as "The Court," appellant filed a "Writ of Error" purporting to set aside the actual trial court's judgment and to instead award a judgment in his favor.

On April 19, 2017, appellant filed in the Hamilton County public records a lien against Slone for $21,936.20, stating that "this Common Law Lien Claim is being filed in good faith as a legal At-Law-Claim . . . upon and collectible out of an action filed against Justin Slone in the Hamilton County District Court . . . ."

The jury found appellant guilty of both counts and assessed punishment at seven years' imprisonment and a $5,000 fine for the retaliation count and two years' imprisonment and a $5,000 fine for the filing of a fraudulent financing statement count, with the sentences to run concurrently. The bill of costs provided that appellant owedseveral fees, including: $40 for a district clerk fee, $4 for a jury reimbursement fee, $2 for a criminal indigent defense fee, and $25 for a time payment fee. This appeal followed.

II. DOUBLE JEOPARDY

By his first issue, appellant argues that retaliation and fraudulent filing of a financing statement are the same offense for double jeopardy purposes. The State agrees with appellant that the double jeopardy clause was violated and that one of the convictions should be vacated.

A. Applicable Law

The constitutional guarantee against double jeopardy protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see U.S. CONST. amend. V; TEX. CONST. art. I, § 14. Where there are no underlying questions of fact, double jeopardy is a question of law we review de novo. See Palacios v. State, 511 S.W.3d 549, 585 (Tex. App.—Corpus Christi-Edinburg 2014, no pet.); Vasquez v. State, 22 S.W.3d 28, 31-32 (Tex. App.—Amarillo 2000, no pet.).

A multiple punishments claim can arise in two contexts:

(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for the same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X); and

(2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).

Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). Courts begin a multiple-punishments analysis by determining whether the two offenses are the same under the Blockburger test. Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). When the same conduct violates more than one penal statute, the test to be applied todetermine whether there are two offenses or only one is whether each statute requires proof of a fact that the other does not. Blockburger, 284 U.S. at 304.

Because of the fundamental nature of double-jeopardy protections, a double-jeopardy claim may be raised for the first time on appeal if: (1) the undisputed facts show that the double-jeopardy violation is clearly apparent on the face of the record and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. Langs, 183 S.W.3d at 687. To determine whether a lesser offense is included within the proof necessary to establish the greater offense, we compare the statutory elements of the greater offense as they were alleged in the indictment with the elements of the lesser offense. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007).

B. Analysis

Here, the State alleged in its indictment that appellant (1) retaliated against Slone by unlawfully filing a fraudulent financing statement and (2) filed a fraudulent financing statement that he knew was materially false or groundless. See TEX. PENAL CODE ANN. §§ 36.06(a)(1), 37.101. In order to prove the allegation that appellant retaliated against Slone, consistent with the indictment, the State had to prove that appellant intentionally or knowingly harmed or threatened to harm Slone by filing a fraudulent lien against Slone "in retaliation for or on account of" Slone's service or status as a public servant. See id. § 36.06(a)(1)(A) ("A person commits an offense if the person intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant . . . ."). The fraudulent filing of a financing statement did not require proof of any additional element that the retaliation offense, as charged, did not also require. See id. § 37.101(a) ("A person commits anoffense if the person knowingly presents for filing or causes to be presented for filing a financing statement that the person knows . . . contains a false material statement; or . . . is groundless."). Accordingly, the two offenses were the same for double jeopardy purposes. See Blockburger, 284 U.S. at 304; Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008); Langs, 183 S.W.3d at 685; see also Halay v. State, No. 03-07-00327-CR, 2008 WL 5424095, at *13 (Tex. App.—Austin, Dec. 31, 2008, no pet.) (mem. op., not designated for publication) (concluding that appellant's convictions for filing of a fraudulent financing statement and retaliation violated double jeopardy); Mortlan v. State, No. 03-08-00029-CR, 2008 WL 5423167, at *1 (Tex. App.—Austin Dec. 30, 2008, pet. denied) (mem. op., not designated for publication) (same). Because retaliation is the more serious offense, we will vacate the conviction for fraudulent filing of a financing statement. See Ex parte Cavazos, 203 S.W.3d at 338; see also Halay, 2008 WL 5424095, at *13; Mortlan, 2008 WL 5423167, at *1.

As the State recognizes, the double jeopardy violation is "clearly apparent on the face of the record." See Langs, 183 S.W.3d at 687. And, under these circumstances, we conclude that enforcement of the usual rules of procedural default would serve no legitimate state interest. See id. Accordingly, appellant's failure to raise the double jeopardy issue at trial does not preclude our review.

We sustain appellant's first issue.²

III. COURT'S ANSWER TO JURY'S QUESTION

By his second issue, appellant argues that the "trial court reversibly erred in failing to read in open court its answer, regarding concurrent versus consecutive sentencing, to the jury's note . . . ." See TEX. CODE CRIM. PROC. ANN. art. 36.27.

A. Applicable Law

Article 36.27 of the Texas Code of Criminal Procedure governs how a jury may communicate with ...