## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00407-CR

THE STATE OF TEXAS STATE
V.
FRANK EMPEY APPELLEE

---------- FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CR17613

---------- 

### DISSENTING OPINION

---------- John Locke discussed the purp ose of government in his Two Treatises of Government

. 1 Many of his ideas are reflecte d in Thomas Jefferson’s writings,

1 See generally John Locke, Two Treatises of Government (Peter Laslett ed., Cambridge Univ. Press, 2d ed. 1967) (1690).2 including our Constitution. 2 People join together to create a society and empower their leaders to go vern because they seek pr otection of their lives, liberty, and property. A government is created and rightfully exists only by the consent of the governed “and is but t he expression of their aggregate will, designed to secure and protect them in the enjo yment of life, liberty, and property . . . .” 3 But, inevitably, tension arises between the enjoyment of life and liberty and the enjoyment of property when claims to property are in conf lict. As Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals has explained, The Supreme Court has interprete d the Due Process Clause as having both substantive and procedural components. The substantive component protects t he individual against government action that either lacks a rational basis or unduly infringes on a fundamental right or liber ty interest. A statute that infringes upon a fundamental right or liberty inte rest violates the substantive component of the Due Process Clause unless the infringement is narrowly tailored to serve a compelli ng state interest. A substantivedue-process analysis that is ba sed upon the infringement of a fundamental right or liberty in terest must provide a careful description of the asserted fu ndamental liberty interest. A fundamental right or liberty interest is one that is deeply rooted in this Nation’s history and tradition and implic it in the concept of

2 See generally David L. Wardle, Reason to Ratify: Th e Influence of John Locke’s Religious Beliefs on the Creati on and Adoption of the United States Constitution , 26 Seattle U. L. Rev. 291 (2002).

3 Galveston, H. & S.A. Ry. Co. v. De Groff , 110 S.W. 1006, 1010 (Tex. Civ. App.—Fort Worth 1908), rev’d on other grounds , 102 Tex. 433, 118 S.W. 134 (Tex. 1909).3 ordered liberty, such that neither liber ty nor justice would exist if (it) were sacrificed. 4
And as our sister court has pointed out, “Substanti ve due process protects against the arbitrary and oppressive exercise of go vernment power over a person’s life, liberty, or property, regardle ss of the fairness of the procedures used to implement the government action.” 5 My differences with the majority opinio n are founded in su ch constitutional guarantees of due process. Unfortunately, in expressi ng my concerns with the statute in question and with the majority opinion, I am not sufficiently skillful to make these concerns clear to the thoughtful and articulate majority. The legislature alone, within t he boundaries described by ou r constitutions, delineates those acts that violat e our criminal laws. 6 This obligation may not be delegated to other branches of the government. 7 When statutes are so vague or contain

4 Fleming v. State , 455 S.W.3d 577, 589–90 (Tex . Crim. App. 2014) (Keller, P.J., dissenting) (footnotes and in ternal quotation marks omitted), cert. denied , 135 S. Ct. 1159 (2015).

5 Garcia v. Kubosh , 377 S.W.3d 89, 97 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

6 See Tex. Const. art. III, § 1; Miller v. French , 530 U.S. 327, 341, 120 S. Ct. 2246, 2255 (2000); Ex parte Hayward , 711 S.W.2d 652, 655 (Tex. Crim. App. 1986); Grant v. State , 505 S.W.2d 279, 28 2 (Tex. Crim. App.), cert. denied , 417 U.S. 968 (1974); David v. State , 453 S.W.2d 172, 179 (Tex. Crim. App. 1970), vacated in part on other grounds , 408 U.S. 937, 937, 92 S. Ct. 2862, 2862 (1972); Sasser v. State , 131 Tex. Crim. 347, 349, 98 S.W.2d 211, 212 (1936).

7 See Ex parte Granviel , 561 S.W.2d 503, 514 (Tex. Crim. App. 1978) (relying on Margolin v. State , 151 Tex. Crim. 132, 138, 205 S.W.2d 775, 778–79 (1947), and Williams v. State , 146 Tex. Crim. 430, 438–3 9, 176 S.W.2d 177, 1834 terms that overlap and conf lict so that an ordinary person cannot tell which statute he or she has violated or whet her he or she has violated a criminal statute, the legislature, an d no other branch of govern ment, has the authority to establish certainty in the law. 8 Other branches of government may not determine the elements of an offe nse on an ad hoc basis. 9 To hold ot herwise is to disregard the clear mandat e of the due process guar antees of our state and federal constitutions. 10 Not only must a statute be sufficiently specific to place the ordinary citizen on notice of the forbidden co nduct; it must also provid e sufficient notice to law enforcement personnel to prevent arbitrary or discriminatory enforcement. 11 A
(1943)); see also In re Johnson , 554 S.W.2d 775, 781–82 (Tex. Civ. App.— Corpus Christi 1977), writ ref’d n.r.e. , 569 S.W.2d 882, 883 (Tex. 1978).

8 Papachristou v. Ci ty of Jacksonville , 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972).

9 See Kolender v. Lawson , 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); Village of Hoffman Estates v. Fl ipside, Hoffman Estates, Inc. , 455 U.S. 489, 498–504, 102 S. C t. 1186, 1193–96 (1982); Smith v. Goguen , 415 U.S. 566, 575–82, 94 S. Ct. 1242, 1248–52 (1974); Grayned v. Rockford , 408 U.S. 104, 108, 92 S. Ct. 2294, 2298–99 (1972); Kramer v. Price , 712 F.2d 174, 176–78 (5th Cir. 1983), reh’g en banc granted , 716 F.2d 284 (5th Cir. 1983), grant of relief aff’d , 723 F.2d 1164 (5th Cir. 1984).

10 See Grayned , 408 U.S. at 108, 92 S. Ct. at 2298–99; Kramer , 712 F.2d at 178.

11 Chicago v. Morales , 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999) (holding loitering ordinance unconstitution ally vague because it “afford[ed] too much discretion to the polic e and too little notice to ci tizens who wish[ed] to use the public streets”); Bynum v. State , 767 S.W.2d 769, 773 (Tex. Crim. App. 1989).5 statute must be sufficiently definite to av oid the possibility of arbitrary and erratic arrests and convictions. 12 Lack of notice and the lack of guidelines for law enforcement each provide an independen t ground for finding a statute void for
vagueness. 13 A penal statute encourages arbitrary enforcement when it fails to provide clear guidelines, thereby giving law enforc ement officials unbound ed discretion to apply the law selectively. 14 The pertinent portion of the theft statut e in the penal code provides that no matter how minimal the value, a person commits a state jail felony if “the value of the property stolen is less than $20,00 0 and the property stolen is” aluminum, bronze, copper, or brass. 15 At the same time, the oc cupations code provides a different offense level and therefore a different punishment. Under the occupations code, theft by purchase, and thereb y possession, of stolen regulated metals is a misdemeano r that may be enhanced by evidence of prior

12 Kolender , 461 U.S. at 357, 103 S. Ct. at 1858; Papachristou , 405 U.S. at 162, 92 S. Ct. at 843.

13 Adley v. State , 718 S.W.2d 682, 685 (T ex. Crim. App. 1985), cert. denied , 479 U.S. 815 (1986); State v. Wofford , 34 S.W.3d 671, 679 (Tex. App.— Austin 2000, no pet.).

14 May v. State , 765 S.W.2d 438, 440 (Tex. Crim . App. 1989) (op. on reh’g); Goocher v. State , 633 S.W.2d 860, 865 (Tex. Cr im. App. [Panel Op.] 1982); Wofford , 34 S.W.3d at 680.

15 See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).6 convictions. 16 Section 1956.001 of the oc cupations code defines different “materials,” “regulated materials,” and “regulated metals”: (1) “Aluminum material ” means a product made from aluminum, an aluminum alloy, or an alum inum by-product. The term includes aluminum wiring and an aluminum beer keg but does not include another type of al uminum can used to contain a food or beverage. (2) “Bronze material” means: (A) a cemetery vase, receptac le, or memorial made from bronze; (B) bronze statuary; or (C) material readily identifiabl e as bronze, including bronze wiring.

. . . . (4) “Copper or brass material” means: (A) a power inverter or insula ted or noninsulated copper wire or cable that contains copper or an alloy of copper or zinc and is of the type used by: (i) a public utility or common carrier; (ii) a telecommuni cations provider as defined by Section 51.002, Utilities Code; (iii) a cable service provid er as defined by Section 66.002, Utilities Code; or (iv) a video service provid er as defined by Section 66.002, Utilities Code; (B) a copper or brass item of a type commonly used in

16 Tex. Occ. Code Ann. § 1956.040( b)–(b-1) (West Supp. 2015).7 construction or by: (i) a public utility; (ii) a telecommuni cations provider as defined by Section 51.002, Utilities Code; (iii) a cable service provid er as defined by Section 66.002, Utilities Code; or (iv) a video service provid er as defined by Section 66.002, Utilities Code; or (C) copper pipe or copper tubing.

. . . . (6-a) “Lead material” means: (A) a commercial grade lead ba ttery, lead-acid battery, or spiral cell battery; or (B) a material or an item readi ly identifiable as being made of or containing lead.

. . . . (9) “Regulated material” means: (A) aluminum material; (B) bronze material; (C) copper or brass material; (D) lead material; or (E) regulated metal. (10) “Regulated metal” means: (A) manhole covers; (B) guardrails;8 (C) metal cylinders designed to contain compressed air, oxygen, gases, or liquids; (D) beer kegs made from metal other than aluminum; (E) historical markers or cemetery vases, receptacles, or memorials made from metal other than aluminum; (F) unused rebar; (G) street signs; (H) drain gates; (I) safes; (J) communication, transmission , and service wire or cable; (K) condensing or ev aporator coils for ce ntral heating or air conditioning units; (L) utility structures, includin g the fixtures and hardware; (M) aluminum or stainless steel containers designed to hold propane for fueling forklifts; (N) metal railroad equipment, in cluding tie plates, signal houses, control boxes, signs, signals, traffic devices, traffic control devices, traffic control signals, switch plates, e-clips, and rail tie functions; (O) catalytic converters no t attached to a vehicle; (P) fire hydrants; (Q) metal bleachers or othe r seating facilities used in recreational areas or sporting arenas; (R) any metal item clearly an d conspicuously marked with any form of the name, initials , or logo of a governmental entity, utility, cemetery, or railroad; (S) insulated utility, communicatio ns, or electrical wire that has been burned in whole or in part to remove the insulation;9 (T) backflow valves; (U) metal in the form of comm only recognized products of the industrial metals recyclin g process, including bales, briquettes, billets, sows, ingo ts, pucks, and chopped or shredded metals; and (V) commercial grade lead batte ries or lead-acid batteries. 17 So if the person purchases and thereby possesses certai n stolen metals included in the penal code section 31.03(e)(4)( F) list—aluminum, copper, bronze, and brass 18 —knowing the metal is stolen, and rega rdless of the amount or value, it appears that the o ffense is a Class A misdemea nor under the occupations code. 19 Thus, if I knowingly go to my local fence and purchase stolen “aluminum material,” I have committe d a Class A misdemeanor, 20 unless, of course, either the arresting officer or the prosecutor decides to prosecute the “aluminum material” as plain aluminum. Then, I ma y be charged with a state jail felony unless I buy more th an $20,000 worth. 21 If I steal a $1,400 silver coin, I have committed a Class A misdemeanor, 22 but if I pick an al uminum can up off the

17 Id. § 1956.001.

18 See Tex. Penal Code Ann. § 31.03(e)(4)(F).

19 See Tex. Occ. Code Ann. §§ 1956.001(9), .040(b)–(b-1).

20 See id. §§ 1956.001(9), .040(b)–(b-1).

21 See Tex. Penal Code Ann. § 31.03(b)(2), (e)(4)(F).

22 See id. § 31.03(e)(3).10 street and someone else clai ms it belongs to him, I am facing a state jail felony charge, 23 unless either the arresting office r or the prosecutor decides to prosecute me based on the value of t he can under section 31.03(e)(1) of the penal code, in which case theft of that same can becomes a Class C misdemeanor carrying no jail time. 24 And what about the sandwich I take out of the office refrigerator because I’m really hungry? If the sandwich is wrapped in aluminum foil, the theft is a state jail felony. 25 If that same sandwich is in a plastic baggie, the theft is only a Class C misdemeanor. 26 My confusion has many sources. What constitutes aluminum, bronze, copper, or brass for purposes of penal code section 31 .03(e)(4)(F)? Does each term mean something made of the respecti ve metal, alloyed with the respective metal, containing the respecti ve metal, or decorated with the respective metal? If I steal an automobile and some of its parts are made of alumin um, have I stolen a car, aluminum, or both? That is, ha ve I committed two offenses? When a person, such as Appellee, is accused of stealing alumin um bats, is he accused of committing one offense or two? What ab out copper coins? Does the theft of

23 See id. § 31.03(e)(4)(F).

24 See id. § 31.03(e)(1).

25 See id. § 31.03(e)(4)(F).

26 See id. § 31.03(e)(1).11 each coin constitute a separate offense? 27 Most baking powders fo r the home and antipersp irant deodorants contain aluminum. 28 If I grab a biscuit off the buffet with out paying for it, am I going to be charged with a state jail felony? How much of the object must be of the forbidden metal? More than 50%? An y amount? From the wording of the statute, 29 logic suggests that the object must be primarily made of the forbidden metal. Otherwise, why wo uld the statute specifica lly enumerate aluminum, copper, brass, and bronze, 30 since brass and bronze are alloys containing copper and sometimes aluminum. 31 Indeed, bronze is an a lloy consisting primarily of
copper. 32 Are courts to conclude that any amount of the forbidden metal dooms the object in which it may hide? Are courts to hold that an object must contain sufficient forbidden metal that a person knows that he possesses it, as courts

27 See Johnson v. State , 364 S.W.3d 292, 297 (T ex. Crim. App.) (“Theft has two gravamina: the prop erty and ownership.”), cert. denied , 133 S. Ct. 536 (2012).

28 Baking Powder , Wikipedia, The Free Encyclop edia, https://en.wikipedia. org/wiki/Baking_powder#Usage_of_aluminu m_compounds (last visited July 27, 2016) (permalink at https ://en.wikipedia.org/ w/index.php?title= Baking_powder& oldid=707002615); Antiperspirant Safety: Should You Sweat It? , WebMD, http://www.webmd.com/skin-pr oblems-and-treatments/feat ures/antiperspirant-fac ts-safety (last visited July 27, 2016).

29 See Tex. Penal Code Ann. § 31.03(e)(4)(F).

30 See id.

31 Brass vs. Bronze , Diffen, http://www.diffen. com/difference/Brass_vs_ Bronze (last visited July 27, 2016).

32 Id.12 have held regarding controlled substances? 33 Or is it sufficient that someone knows it? And returning to coins, d oes copper plating transfor m a penny from zinc to copper? Or is it a state jail felony to steal a 1981 penny but a Class C misdemeanor to steal a 19 43 penny because it was made with no copper? 34 The legislature does not inform us. Does th is mean that the po lice officer or the prosecutor decides this issue on an ad hoc basis? As section 31.03 of the penal code and section 1956.040 (b)–(b-1) of the occupations code currently exist, the sa me act may be punish ed as a Class C misdemeanor, a Class A misd emeanor, or a state jail felony, depending on the whim or sound judgment of the arrest ing officer or the prosecutor, not the legislature. If the officer decides the offense is a Class C misdemeanor, there will likely be no arrest because the penalty carries no jail time and custodial arrest requires promptly taking the defendant before a magistrate. 35 If the officer decides the offense is a Class A misdemeanor, the bail amount will likely be

33 See Shults v. State , 575 S.W.2d 29, 29 (Tex. Cr im. App. [Panel Op.] 1979).

34 Which U.S. Coin Has Abso lutely No Copper in It? , About.com, http://coins.about.com/od/us coins/f/coin_nocopper.htm (last visited July 27, 2016).

35 See Tex. Code Crim. Proc. Ann. art. 14.06(b) (West Supp. 2015) (allowing peace officer to issue citation to person charged with Class C offense instead of taking the person before a magistrate); Tex. Penal Code Ann. § 12.23 (West 2011) (providing Cl ass C punishment is a fine up to $500); Berrett v. State , 152 S.W.3d 600, 606 (Tex. App.—Hou ston [1st Dist.] 2004, pet. ref’d).13 lower than if the officer deci des the offense is a felony. 36 Similarly, the ultimate punishment ranges from a ti ny fine to two years’ imprisonment and a large fine, dependent on the officer’s choice. 37 And after the officer makes this determination, the prosecutor weighs in and may make differe nt determinations, both the officer and the prosecutor acti ng within the discretion improperly delegated them by the legisl ature. This is the very definition of unbounded discretion. As the Texas Court of Criminal Ap peals has repeatedly reminded us, The federal constitution affords the states broad authority to narrowly construe a statute to avoid a constitutional violation. . . . Texas courts have a duty to employ a reasonable narrowing construction for that purpose. Bu t . . . a narrowing construction should be employed only if the statute is readily susceptible to one. We may not rewrite a statute that is not readily subject to a narrowing construction because su ch a rewriting constitutes a serious invasion of the legislative domain and would sharply diminish the legislature’s incentive to draft a narrowly tailored statute in the first place. . . . [A] law “is not susceptibl e to a narrowing construction when its meaning is unam biguous.” This statem ent accords with our

36 See Ex parte Castellanos , 420 S.W.3d 878, 882 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“The defendant’s potential sentence and the nature of the crime are significant factors for us to consider when assessing the reasonableness of a bail amount.”) (citing Montalvo v. State , 315 S.W.3d 588, 593 (Tex. App.—Houston [1st Dist.] 2010, no pet.), and Ex parte Hunt , 138 S.W.3d 503, 506 (Tex. App.—For t Worth 2004, pets. ref’d)).

37 Compare Tex. Penal Code Ann. § 12.23 (p roviding that person convicted of “Class C misdemea nor shall be punished by a fine not to exceed $500”), with Tex. Penal Code Ann. § 12.35(a)–(b) (W est Supp. 2015) (providing that person convicted of state jail felony faces up to two years’ confinement in state jail and a fine of up to $10,000).14 longstanding practice of giving e ffect to the plain meaning of a statute unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. It also acco rds with our more rece nt statements that a statute is ambiguous if the statutory language “is reasonably susceptible to more than one understanding.” 38 Penal code section 31.03(e)(4)(F) is ano ther example of special-interest legislation intended to benefit real esta te developers who we re tired of repeated burglaries and thefts of wiri ng and air conditioner parts. 39 With the increased value of copper and aluminum, other owners of houses, apartments, and buildings were also the victims of these thefts and burglaries. 40 In 2011, the governor signed Senate Bill 694, which removed the requirement that at least 50% of the stolen item be made of s pecific metals, such as copper or aluminum. 41 The removal of this scope limitation generated many questions.

38 Ex parte Thompson , 442 S.W.3d 325, 339–40 (Tex. Crim. App. 2014) (citations omitted).

39 See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling Roundup—April 2011 , http://www.dallassierraclub. org/index.htm?c=con&s=24& sc=212311 (last visited July 27, 2016); Pr ess Release, The Office of Tex. State Senator Royce West, Senator West Anno unces New State Law to Fight Metals Theft (Apr. 4, 2008), available at http://www.senate.sta te.tx.us/75r/Senate/ Members/Dist23/pr08/p0 40408a.htm (last visited July 27, 2016).

40 See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling Roundup—April 2011 ; Press Release, The Office of Tex. State Senator Royce West, Senator West Announ ces New State Law to Fight Metals Theft (Apr. 4, 2008).

41 See Act eff. Sept. 1, 2011, 82nd Leg ., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3309, 3310 (West) (c odified at Tex. Penal Code Ann. § 31.03(e)(4)(F)).15 That is, now that the legislature specifica lly removed this quan titative restriction from section 31.03(e)(4)(F), t he statute is clearly ambiguous. The indictment that tracks that se ction also creates an additional constitutional issue. The Texas Court of Criminal Ap peals has repeatedly held that generally, “an indictme nt tracking the language of the statut e will satisfy constitutional and st atutory requirements; the State need not a llege facts that are merely evidentia ry in nature.” 42 In contrast, the Texas Legislature has established a baseline for indi ctments requiring that “[i]f known, personal property alleged in an indictment shall be id entified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.” 43 Clearly, besides ownership, the gr avamen of the theft offense under section 31.03(e)(4)(F) is theft of any amount of the forbidden metals. The indictment that tracks the statute gives no notice of the item containing or made of the forbidden metal. The prosecution is only for the theft of the forbidden metal, not the rest of the item. Nor does the indictme nt that tracks this statute give any notice of the identity of the item. But both the code of criminal procedure and the Texas Court of Crim inal Appeals have provided that

42 State v. Mays , 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

43 Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009).16 [t]he purpose of an indictment is “t o give the defendant notice of the particular offense with wh ich he is charged, an d enable the court, on conviction, to pronounce the proper judgment”; an indictment must also be specific enough to “e nable the accuse d to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” 44
How does an indict ment that tracks this vague statute give Appellee notice of the particular offense with which he is charged or en able the court to pronounce the proper judgm ent on conviction? How can a court conclude that the indictment here, which does not me ntion the baseball bats, is sufficiently specific to “enable the accused to plead the judgment that ma y be given upon it in bar of any prosecution” for stealing those same baseball bats? Because I believe that due process de mands both that we uphold the trial court’s decision in this specific case and that the legislat ure revise section 31.03(e)(4)(F) so that it provides ad equate notice to citizens and law enforcement, I must respectfully dissent.
/s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE PUBLISH DELIVERED: August 4, 2016

44 Lehman v. State , 792 S.W.2d 82, 84 (Tex. Cr im. App. 1990) (citing Tex. Code Crim. Proc. Ann. arts. 21.04, 21.11 (West 2009)).