In The

Court of Apprals

6tft1 District of cxas at Dallas

No. 05.12.01179-CR

DERICK DEWAYNE EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd judicial District Court

Dallas County, Texas

Trial Court Cause No. F1001193W

OPINION

Before Justices Bridges, Fillmore, and Lewis

Opinion by Justice Lewis

On the Court’s own motion, we withdraw our opinion issued January 31, 2014 and vacate

our judgment of that date. The following is now the opinion of the Court.

A jury found appellant Derick Dewayne Evans guilty of engaging in organized criminal

activity, based on an underlying offense of gambling promotion, and assessed appellant’s

punishment at confinement for two years. Subsequently, that sentence was suspended; appellantwas placed on community supervision for two years and ordered to pay a fine of $10,000.Appellant raises nine issues on appeal. We affirm the trial court’s judgment.

Background

Appellant was charged by indictment with the offense of engaging in organized criminal

activity based on a raffle drawing he organized to benefit his political campaign. Appellant
this Court regarding his suspension from office which we denied.’ Now appellant appeals the

trial court’s judgment.

Sufficiency ofthe Evidence

In his first issue, appellant argues the evidence was legally insufficient to support his

conviction for engaging in organized criminal activity. He argues the State failed to prove

beyond a reasonable doubt that appellant, knowingly for gain, committed the offense ofgambling promotion or that there was a group that intended to work together in a continuingcourse of criminal activities. Appellant contends the State failed to prove he (1) “distributed

prizes by chance to persons who paid consideration for a chance to win anything of value” and(2) “was a part of a combination of three or more people whose purpose was to promote an

illegal lottery.” We have reviewed the evidence and conclude that it is sufficient to support

appellant’s conviction.

The State charged appellant with engaging in organized criminal activity, based on the

underlying offense of gambling promotion. In pertinent part, the indictment charged as follows:

EVANS, DERICK DEWAYNE

* *

did then and there commit the offense of gambling promotion in violation of

section 47.03 of the Texas Penal Code, to-wit: the Defendant did then and there,

for gain, knowingly set-up and promote a lottery, to wit: a raffle drawing held on

or about December 20, 2008;

See hi re Deriek Dewayne finns. 401 5. W.3d 92! (Tex. App—Dallas 2013. orig. proceeding).

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903 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the jury’s

verdict and determine whether any rational trier of fact could have found the elements of the

offense beyond a reasonable doubt. Jackson, 43 U.s. at 319; Wise, 364 S.W.3d at 903. The trier

of fact is responsible for resolving conflicts in the testimony, weighing the evidence, anddrawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319.

A person commits the offense of gambling promotion “if he intentionally or knowingly..

for gain, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for

transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence

of participation in any lottery.” TEx. PENAL CODE ANN. § 47.03(a)(5) (West 2011). A person

commits the offense of engaging in organized criminal activity “if, with the intent to establish,

maintain, or participate in a combination or in the profits of a combination or as a member of a

criminal street gang, the person commits or conspires to commit . . . any gambling offense

punishable as a Class A misdemeanor.” Id. § 71.02(a)(2) (West Supp. 2013). “Combination”

means three or more persons who collaborate in carrying on criminal activities. Id. § 7 1.01(a)

(West 2011). “Conspires to commit” means that a person agrees with one or more persons that

they or one or more of them engage in conduct that would constitute the offense and that person

and one or more of them perform an overt act in pursuance of the agreement. Id. § 7 1.01(b)(West 2011). An agreement constituting conspiring to commit may be inferred from the acts of

the parties. Id.

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through December 31, 2007 lists political contributions from the sale of “raffle tickets” and

political expenditures for “raffle prizes.” Multiple witnesses testified that while employed under

appellant in 2008, they were called out of a morning briefing meeting in groups; each was given

50 raffle tickets and told to sell them. Lieutenant Tracey Gulley and Sergeant Kelvin Holder

were distributing tickets in the precinct parking lot, one reading aloud the ticket numbers anddistributing tickets while the other wrote down each officer’s name along with the ticket numbersthey were given. The tickets contained the following language:

“Keep Caring & Committed Law Enforcement Leadership Working for Our

Community”

Support Constable Derick Evans

1st Prize An XBOX 360(60G) Pro System

2nd Prize A Sony PSP

3rd Prize A (2G) MP3 Player

Drawing to be held Saturday, December 20, 2008 (Need not be present to win)

Paid for by Derick Evans Campaign Fund, Joe E. Bagby Treasurer

S5.0O Donation. Thank You for Your Support.

Witnesses testified that during detail one morning, appellant referenced the selling of the raffle

tickets and exclaimed, “as much as he had done for them, they should he able to do somethingfor him in return.” Several officers testified they sold all the tickets they could and then bought

the remainder themselves. The officers reported they turned in their ticket proceeds to Gulley inher precinct office and she checked off their names from the distribution list. Consistent with theofficers’ testimony, appellant’s Campaign Finance Report for the period July I, 2007 through

December 31, 2007 lists several officers’ names as contributors showing they contributed $250toward appellant’s campaign. On December 20, 2008, the precinct held a Christmas party at

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purely by chance and the only ticket stubs in the bag at the time of the drawings were stubs from

the raffle tickets sold.

Nevertheless, appellant argues his purpose of selling the tickets was to raise funds for his

campaign, not to promote a gambling business. The Stare responds that appellant, in essence, is

requiring proof of motive, which though it may be “always relevant, it is never essential.” See

Loudres i’. State, 614 S.W.2d 407,411 (Tex. Crim. App. 1980). We question whether the State

had to prove appellant’s purpose or motive behind selling the tickets was anything other than

“for gain” as required by the statute. See TEX. PENAL CoDE ANN. § 47.03(a)(5). But even if the

State was required to show purpose or motive, there was sufficient evidence. First, the tickets

themselves prominently identified prizes to be awarded by drawing as an incentive for

purchasing a ticket. Further, Norvis Harmon testified that appellant justified the high price of theticket based on the value of the prizes to be won. Moreover, several officers testified that peoplewho purchased the tickets were purchasing the chance to win a prize. Appellant reported the

proceeds from the sale of the tickets on his Campaign Finance Report and deposited the proceeds

into his campaign checking account which satisfies the “for gain” requirement in the statute. See

Id. From these facts, a jury could reasonably infer the main purpose of selling the raffle tickets

was to induce people to pay for a chance to win a prize.

Appellant also argues the public’s motive when purchasing the tickets was to support

appellant’s campaign and not a chance to win a prize. Appellant complains the State failed toproduce testimony From a single person that the reason for purchasing a donation ticket was for

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circumstantial evidence is as probative as direct evidence and can alone be sufficient to establish

guilt. Merritt i’. State, 368 S.W.3d 516. 525 (Te. Crim. App. 2012). From these facts, a jurycould reasonably infer the main purpose of purchasing the raffle tickets was to pay money for achance to win a prize.

Appellant’s contention that the evidence is insufficient to support his conviction is

without merit. The sufficiency of the evidence must be reviewed in the light most favorable to

the determination made by the finder of fact. ia*son, 443 U.S. at 319; Wise, 364 S.W.3d at 903:

see also Smith v. State, 658 S.W.2d 172, 173 (Tex. Crim. App. 1983). The evidence in this casewas legally sufficient for the jury to infer that appellant intentionally or knowingly for gain, set

up or promoted a lottery; that the purpose and function of the lottery was to induce people to

exchange money for a chance to enter the raffle and win one of three prizes listed on the raffle

tickets: and that the purpose of exchanging money for the ticket was to enter the raffle. See TEx.

PENAL CODE ANN. § 47.03(a)(5).Onani:ed Cmunmal Actiiitv

We next address whether the State failed to prove appellant was a part of a combination

of three or more people whose purpose was to promote an illegal lottery. The record also

supports the jury’s finding that appellant possessed the intent to establish, maintain, orparticipate in a combination or in the profits of a combination in connection with the gambling

offense for which he was convicted. See TEx. PENAL CODE ANN. § 71.02. Specifically, appellant

testified he has sold raffle tickets to fund his election campaigns since 200!. He admitted he

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Officer Cooley testified he later saw appellant take the same list out of his desk drawer to verifyCooley had sold his appropriated tickets when approving a request for working an off-duty job.Gulley gathered the ticket proceeds and stubs from the officers. Appellant admitted he was given

the ticket sales proceeds by Gulley and appellant deposited those proceeds into his bank accountto benefit his campaign. Appellant admits, and the officers testified, various people distributedand/or sold raffle tickets with the purpose of raising funds for appellant’s political campaign.

And finally, after receiving the proceeds and ticket stubs, appellant conducted a raffle, drew theticket stubs from a bag, and awarded prizes to the drawn ticket holders.

We have reviewed the evidence in the light most favorable to the determination made by

the finder of fact. See Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at 903; see also Smith, 658S.W.2d at 173. The evidence in this case was legally sufficient for the jury to infer appellantpossessed the intent to establish, maintain, or participate in a combination or in the profits of acombination; appellant purchased the raffle tickets and prizes with the intent that other officers

would distribute and sell the raffle tickets; the officers’ purpose in distributing and selling thetickets was to facilitate a raffle generating proceeds to benefit appellant’s political campaign; andappellant received and deposited the proceeds from the officers ticket sales as reported on hisCampaign Finance Report for the period July I, 2007 through December 31, 2007. This evidencesupports the jury’s finding appellant possessed the intent to establish, maintain, or participatewith other officers in the furtherance of the gambling offense for which he was convicted. See

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In his second through fifth issues, appellant argues the trial court erred by excluding

evidence. He specifically complains the trial court erred by excluding evidence: relevant to

whether appellant knowingly participated in the promotion of an illegal lottery, relevant to the

defense of mistake of fact, relevant to the defense of mistake of law, and of bias or motive of

several of the State’s witnesses.

We review a trial court’s decision to admit evidence under an abuse of discretion

standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). The trial court abuses its

discretion only when the decision lies “outside the zone of reasonable disagreement.” Id.

A. Evidence of knowing participation in the proniotion of au illegal lotte,,’

Appellant’s second issue contends the trial court erred by excluding relevant evidence of

other constables using the same fundraising techniques as appellant. He complains his raffle, like

raffles held by other constables, was an “entirely legitimate activity.” Appellant argues it wasrelevant for the jury to know that he learned this fundraising technique when he was a deputyconsLable and other constables used this same technique to raise campaign funds. We have

already established the evidence was sufficient to support the jury’s verdict that appellant wasguilty of engaging in organized criminal activity based on an underlying offense of gamblingpromotion. Whether or not other constables’ actions satisfied the elements of promotion of an

illegal lottery is irrelevant to whether or not appellant’s actions satisfied those elements. See

Hk*n,an v. State 141 S.W. 973, 974 (Tex. Crim. App. 1911). Therefore, we conclude it was not

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Appellant’s third and fourth issues contend the trial court erred by excluding evidence

that other constables used the same lundraising techniques as appellant because it was relevant

to the defenses of mistake of fact and mistake of law; and by excluding evidence of a TexasEthics Commission order, he was deprived of the opportunity to raise the mistake of law

defense. Specifically, appellant wanted to introduce a Texas Ethics Commission order in which

the Commission recognized appellant’s opponent violated the law by not reporting all

contributions from a fundraising raffle. Appellant contends the raffle was sanctioned by the

Commission because the order failed to state the raffle was illegal.

It is a defense to prosecution that the actor through mistake formed a reasonable belief

about a matter of fact if his mistaken belief negated the kind of culpability required for

commission of the offense. TEX. PENAL CODE ANN. § 8.02 (West 2011). It is also an affirmative

defense to prosecution that the actor reasonably believed the conduct charged did not constitute

a crime and he acted in reasonable reliance upon an official statement of the law contained in awritten order or grant of permission by an administrative agency charged by law withresponsibility for interpreting the law in question. Id. at § 8.03 (West 2011).

Appellant argues the excluded evidence would allow the jury to decide whether appellant

possessed the required mental state for the offense, “i.e., whether Constable Evans knowingly,

for gain, promoted an illegal lottery.” However, appellant was charged by an indictmentfollowing the language of the statute and the State was required to prove appellant, for gain,

knowingly set-up and promoted the raffle; there was no requirement to prove appellant knew his

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entitled to a prize. The excluded facts about which appellant complains are facts about what

other constables allegedly have done, not facts about appellant’s actions. “That others had also

violated the law would be no excuse or justification.” Hk*nzan, 141 SW. at 974. Appellant

only claims he did not know the acts he was committing were an offense; he committed the very

acts he intended to commit. “No mistake of law excuses any one.” Id.

Appellant urges this Court to find the Texas Ethics Commission has responsibility for

interpreting the penal code—the law under which appellant was charged. Appellant provided this

Court with the statute enabling the Texas Ethics Commission to administer and enforce

campaign finance laws. See TEx. Gov’T CODE ANN. § 571.061 (West 2012). However,

appellant railed to provide this Court with any case law or statute enabling the Texas Ethics

Commission to interpret the Texas Penal Code, and we find no such grant of authority.

Appellant’s third and fourth issues are overruled.

C. Ei’ide,zce of bias OF mon e of witnesses

AppellanCs fifth issue contends the trial court erred by excluding evidence attacking the

credibility of the State’s witnesses, Ronald Linchicurn, Norvis Harmon, and Andrew Harris.

Specifically, appellant claims each of these three witnesses believed he had been treated unfairly

by appellant and were, therefore, biased and had motive to put appellant in the worst possible

light with the jury.

A trial court’s decision to exclude evidence will be upheld if it is within the zone of

reasonable disagreement. Davis, 329 S.W.3d at 803. Error may not be predicated upon a ruling

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(Tex. App—Corpus Christi 1990, pet. ref’d). However, the scope of appropriate crossexamination is not unlimited. Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996).Cross-examination may he limited to prevent harassment, prejudice, confusion of the issues,

harm to the witness, and repetitive or marginally relevant interrogation. Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.

Here, appellant complains the trial court excluded historical evidence of job-related

problems for Ronald Linthicum, Norvis Harmon, and Andrew Harris. Appellant was trying to

show their bias and motive for testifying against him. The jury heard Linthicum testify he hadworked for the Constable’s office for nineteen years and was terminated while working forappellant. Linthicum was in the process of being terminated when he filed a complaint against

appellant that reported feeling coerced to sell the raffle tickets. Linthicum testified he hadreceived an administrative warning and he knew his job was in jeopardy when he made thecomplaint of coercion against appellant. Linthicum’s report also complained he was treated

unfairly when he was denied the opportunity to work part-time jobs while other constables wereallowed the same opportunities he was denied.

The jury heard Andrew Harris testify he had been disciplined by appellant and was not

allowed to work off-duty jobs as a result. Harris testified he had a meeting with appellant and

requested his discipline be rescinded; appellant refused to rescind the discipline and Harris wasupset. Harris further testified he was involved with a group of others that filed a civil suit againstappellant which was pending at the time of trial. The civil suit alleged Harris had been forced to — Ii—
appellant contends the complaint was faxed to the district attorney’s office the day after Harris

was terminated.

The jury also heard Norvis Harmon testify he worked in the Constable’s office until he

was terminated in 2011. Harmon testified he was asked by appellant to sell raffle tickets. On

cross examination, Harmon admitted his affidavit reporting the selling of raffle tickets did not

include a report of his meeting with appellant directly asking Harmon to sell the tickets. Harmon

testitied appellant denied Harmons request to work off-duty jobs which made him unhappy. TheState introduced several off-duty requests made by Harmon which appellant had approved.

Harmon testified he was also involved with the civil suit against appellant and considered

himself a whistleblower for reporting appellant to the authorities.

The jury was aware that Linthicum. Harmon, and Harris all had possible motives to make

false accusations against appellant. The jury had ample opportunity to judge the credibility and

weigh the testimony of each witness. The record also contains documentary evidence showingpossible bases for negative feelings of these three witnesses toward the appellant. Further, the

State brought forth four other officers who all testified to the same facts as the three officersabout whom appellant complains; they were all given, and felt coerced to sell, raffle tickets in

support of appellant’s campaign. We do not conclude it was an abuse of discretion for the trial

court to exclude evidence tending to be needless cumulative evidence, risking confusion of the

issues, or misleading the jury. See TEx. R. EvID. 403.

Appellant’s fifth issue is overruled.

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Something else that I think is very interesting about his character. Everything he

did, almost with exception of a few checks that they put into evidence, everything

is in cash. And then we have all these expenses. They don’t add up. Why do they

do it in cash? There’s got to be a reason, and the reason is, so they can siphon

some of it off.

Appellant’s counsel objected that the State’s argument was a misstatement of the evidence andnot a reasonable deduction from the evidence. The trial court overruled the objection. Appellantclaims this argument was not a reasonable deduction from the evidence and was so extreme and

manifestly improper as to justify reversal of appellant’s conviction.

The State responds the argument was permissible because it was a reasonable deduction

and inference from the evidence. “It is well settled that the prosecutor may argue his opinionsconcerning issues in the case so long as the opinions are based on the evidence in the record anddo not constitute unsworn testimony.” Al/ridge, 762 S.W.2d at 156 (citing Ngoe Van Le v. State,

733 S.W.2d 280, 286—87 (Tex. App.—Houston (14th Dist.) 1987)). See a/so McKay i. State, 707

S.W.2d 23,37 (Tex. Crim. App. 1986), cert. deizied, 479 U.S. 871 (1986).

We review a trial court’s ruling on an objection to a jury argument for an abuse of

discretion See Montgonzezy v. State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet.rerd). Permissible jury argument generally falls into one of four areas: (I) summation of theevidence, (2) reasonable deductions drawn from the evidence, (3) responses to argument ofopposing counsel, and (4) pleas for law enforcement. Brown i’. State 270 S.W.3d 564, 570 (Tex.

Crim. App. 2008). The State may draw reasonable inferences from the evidence and is affordedwide latitude in its jury argument so long as the argument is supported by the evidence,

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(Tex. Crim. App. 1988).

Here, the State introduced testimony by several witnesses supporting the proposition that

all raffle ticket proceeds were expected to be returned in cash. During his own testimony,

appellant reported that he kept some cash to use when he needed to purchase something, or for

paying a “DJ.” or the caterer for a Christmas party. The only documentation of the Fundscollected from the raffle ticket sales was the list provided to appellant by Gulley and appeliant’s

Campaign Finance Report.2 Further, appellant testified he was given the campaign money by

Gulley. Gulley had received the money from the other officers who had sold rame tickets. Finntestified he was told “not to bring back any of the tickets, . . . just cash.” Officers testified they

received and turned-in cash raffle ticket proceeds. Appellant testified he took the money to the

bank and deposited it into his bank account. The record contains appellant’s Campaign Finance

Report for the period July I. 2007 through December 31. 2007 which shows contributions

received as well as expenditures made for a raffle. Appellant testified he paid some campaign

expenses with cash. We cannot conclude the trial court erred in overruling appellant’s objection

to the State’s closing argument because the State may argue all reasonable inferences from the

facts in evidence, and any error from arguing [‘acts outside of the record is not reversible unless.

in light of the record as a whole, the argument is extreme or manifestly improper. See Brown,

2 Appel a ni esi i tied he ci tployed about seventy people. His Ca nipi gn Fi mince Reporl Ii sic.) Cont n hul ions rn in Si Sly.sis en’ iii es. in d I hree

those en’ Cs were na med on I he finn as’ Raffle Tickel.’’ The e in Id ho lions I sled were fro in $5 to $250. eoespond ing In he lesi i phony I hat

this Honey Caine rout lie sale of (lie raffle tickets. Althouuh it appears that IltosI ol Ihe eontnhutors were his eniployees. no oeeupalttifl or

niployers ,ç re I sic.), hi ii her, here was no designation I hat I hese apittiun Is Ii ad been Ii und let) logelher to include eon I rib ut tins antI sales hy Ii

eiiipluyees,

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within a permissible category, our inquiry would not end there. In evaluating the severity of the

misconduct, we must assess “whether [thej jury argument is extreme or manifestly improper [byjlook[ingj at the entire record of final arguments to determine if there was a willful and calculated

effort on the part of the State to deprive appellant of a fair and impartial trial.” Brow,,, 270

S.W.3d at 573 & n.3. See also Cantic v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (jury

argument must be extreme or manifestly improper, or inject new and harmful facts into evidenceto constitute reversible error). Here, the complained-of comment was brief and was not repeated.

After the trial court overruled the objection, the prosecutor moved on to discuss the definition ofa lottery. This record does not establish a willful and calculated effort on the part of the State todeprive appellant of a fair and impartial trial. Further, considering the evidence and the nature of

the offense, we are unable to attribute the jury’s verdict to the prosecutor’s remark. As discussedregarding the sufficiency of the evidence, the record is replete with evidence of each element of

the offense, and the complained-of jury argument was with regard to what happened to the

proceeds after they were received by appellant. Whether or not the proceeds of the rallie were in

cash, as well as what happened to the proceeds after they were received by appellant, are notelements of the offense with which appellant was charged. In light of the record as a whole, we

cannot conclude the complained-of argument was extreme or manifestly improper. nor that it

alTected appellant’s substantial rights. See TEx. R. App. P. 44.2(h). Thus, we conclude that error,

if any, is not reversible.

Appellant’s sixth issue is overruled. — IS—
placing the required culpable mental state of “knowingly” after “for gain” rather than befiire “forgain.” The State responds that any error in the indictment is waived and even if it were

preserved, the indictment properly stated the culpable mental state.

The State first responds appellant has waived this complaint because he failed to argue it

at the pre-trial hearing devoted to the motion to quash. The reporter’s record reveals that

appellant’s counsel did not specifically argue about the placement of the word knowingly in the

indictment at the hearing of the motion to quash. However, appellant’s counsel did state, “Your

Honor, for the record, we would like to re-urge our Motion to Quash that was heard before, as it

relates to the indictment.” And the clerk’s record reveals the Amended Motion to Quash and

Exception to Substance of the Indictment contains the exact argument appellant brings before us

on appeal. Consequently, we conclude appellant has preserved his argument for this appeal. See

TEx. R. App. P. 33.l(a)(l): Miller i’. State. 333 S.W.3d 352. 355—56 (Tex. App—Fort Worth,

2010, pet. rerd).

We review de novo a trial court’s denial of a motion to quash an indictment. Lawrence v.

State, 240 S.W.3d 912, 915 (Te. Crim. App. 2007). Indictments may suffer from a defect of

substance or a defect of Form .A defect of substance occurs when the indictment does not appearto charge an offense, when it appears on the race of the indictment that it is “barred by a lapse of

time or that the oflènse was committed after the finding of the indictment,” when “it contains

matter which is a legal defense or bar to the prosecution,” or if the indictment shows on its face

that the trial court lacks jurisdiction. TEX. CODE CRIM. PROC. ANN. art. 27.08 (West 2006). To

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notice of a charged offense. State r. Ednwnd, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). An

indictment should contain everything which is necessary to be proved. TEX. CODE CRIM. PROC.ANN. art. 21.03 (West 2009). A motion to quash should only be granted when the language

describing the accused’s conduct is so vague or indefinite that it fails to give the accused

adequate notice of the acts he allegedly committed. Dc Vaughn t’. State. 749 S.W.2d 62, 67 (Tex.

Crim. App. 1988). When a motion to quash a charging instrument is overruled, a defendant

suffers no harm unless he did not, in fact, receive notice of the State’s theory against which liewould have to defend. State i’. Moff 154 S.W.3d 599. 601, 603 (Tex. Crim. App. 2004); see a/sc)

TEX. CODE CRIM. PROC. ANN. afl. 21.19 (West 2009).

Appellant complains the trial court erred by failing to grant his motion to quash because

the indictment failed to charge that appellant did “knowingly. for gain, promote a lottery” by

placing the required culpable mental state of “knowingly” after “for gain” rather than before “forgain.” We disagree. The indictment was sufficiently specific by stating the conduct for which he

was being charged as “the Defendant did then and there, for gain, knowingly set-up and promote

a lottery, to wit: a raffle drawing held on or about December 20, 2008.” It is clear from the

indictment that the “knowingly” mental state required by the applicable statute, that was anecessary element, was included in the charge. See 0/her v. State, 692 S.W.2d 712, 714 (Tex.

Crim. App. 1985) (“[W]here there is not a material difference between the language of the

statute and the language of the indictment, an indictment which alleges all of the requisiteelements of the particular offense in question will not be found to be deficient simply because it

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to defend. Sin ith i’. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); see (1130 TEx. CODECRIM. PRoc. ANN. art. 21.19 (An indictment shall not be held insufficient, nor shall the trial,

judgment or other proceedings thereon be affected, by reason of any defect of form which does

not prejudice the substantial rights of the defendant.). Appellant’s substantial rights were notharmed because the record in this case clearly shows appellant had actual notice of the charge onwhich the State was basing its allegations: engaging in organized criminal activity, based on an

underlying offense of gambling promotion. The indictment gave appellant adequate notice of theacts he allegedly committed so that he could prepare his defense. See Smith, 297 S.W.3d at 267.

Appellant’s seventh issue is overruled.

Jury Charge Error

In his eighth issue, appellant argues the trial court erred by submitting an egregiously

harmful jury charge because the application paragraph of the charge did not require the jury to

find a necessary culpable mental state. The State responds that the jury charge properly stated the

culpable mental state.

When reviewing the jury charge, we must first determine whether error exists. Almanza v.

State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984). If we find error, we must then determine

whether the error caused sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 171(Tex. Crim. App. 1996); Ahuanza, 686 S.W.2d at 171. When a timely objection is made at trial,

reversal is required if the accused can claim “some harm.” Ahnanza, 686 S.W.2d at 171. If noproper objection was made at trial, the accused must claim the error was fundamental, and he — I 8—
defensive theory. See Warner v. State, 245 S.W.3d 458, 46 1-62 (Tex. Crim. App. 2008).

A person is to be tried only on the crimes alleged in the indictment. Castillo v. State, 7

S.W.3d 253, 258 (Tex. App.—Austin 1999, pet. reEd). The charge of which appellant complains

begins by tracking the language of the statute and instructed:

A person commits a Class A misdemeanor offense of gambling promotion if he

knowingly, for gain, sets up or promotes any lottery. (emphasis added).

The application paragraph of the charge also instructed:

Now, if you find from the evidence beyond a reasonable doubt that on or about

the 1st day of December, A.D., 2008, in Dallas County, Texas, the defendant,

Derick Dewayne Evans, did unlawfully then and there commit the offense of

gambling promotion in violation of section 47.03 of the Texas Penal Code, to-wit:the Defendant did then and there, jar gain, knowingly set up or promote a lottery,to-wit: a raffle drawing held on or about December 20, 2008, and said Defendantdid then and there commit said offense with the intent to establish, maintain, or

participate in a combination, and in the profits of a combination who collaborated

in carrying on said criminal activity, then you will find the defendant guilty ofEngaging in Organized Criminal Activity, as charged in the indictment. (emphasis

added).

Appellant complains the jury was erroneously told appellant “was guilty if he knowingly

organized the raffle” and should have been told appellant “was guilty if he knowingly, for gain,organized the raffle.” Appellant argues the jury was not required to find all the necessaryelements of the offense of gambling promotion because the words “for gain” were placed before

“knowingly” in the indictment and in the application paragraph of the jury charge. We disagree.We do not view the challenged language in isolation, but rather in context of the entirety of thecourt’s charge. The language “for gain” was not omitted from either the indictment or the jurycharge. See Oliver i’. State, 692 S.W.2d 712, 714 (Tex. Crim. App. 1985) (“Thus where there is

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employed should be taken into consideration.”) We conclude there is no material differencebetween the statute and the indictment; the application paragraph in the jury charge tracked the

language in the indictment. See Id. Further, we find nothing in the record revealing any contestregarding whether appellant held the raffle drawing “for gain.” Appellant even testified the

“profits” went to the Derick Evans campaign. Also, the definitions section of the jury charge

tracked the language of the statute. Consequently, we conclude appellant did not suffer egregious

harm from the language used in the jury charge.

Appellant’s eighth issue is overruled.

Suspension from Office

Appellant’s ninth issue contends the trial court erred by suspending appellant from office.

The State responds the trial court properly exercised its discretion pursuant to the local

government code. The constitution provides, “Laws shall be made to exclude from office persons

who have been convicted of bribery, perjury. forgery, or other high crimes.’ Thx. CONST. art.XVI, § 2. Local Government Code Chapter 87 governs the removal or suspension of certain

government officials from office. See TEX. Lou. Gov’T CODE ANN. § 87.001—043 (West 2008

& Supp. 2013).

Following the jury’s guilty verdict, the trial court removed appellant from public office

pursuant to sections 87.031 and 87.032. Section 87.031 provides:

(a) The conviction of a county officer by a petit jury for any felony or for a

misdemeanor involving official misconduct operates as an immediate removalfrom office of that officer.

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appellant from office pursuant to section 87.032 which provides:

If the officer appeals the judgment, the appeal supersedes the order of removal

unless the court that renders the judgment finds that it is in the public interest to

suspend the officer pending the appeal. If the court finds that the public inlerest

requires suspension, the court shall suspend the officer as provided by this

chapter.

TEx. Loc. Govt CODE ANN. § 87.032 (West Supp. 2013).

Appellant argues the procedures of Chapter 87. under which he was removed from office,

are broader than the constitutional provision on which the procedures are based because all

felonies are not “high crimes” as described in article XVI of the Texas Constitution. See TEX.

CONST. art. XVI, § 2; TEx. Loc. GOV’T CODE ANN. § 87.03 1—32. The Texas Supreme Court hasaddressed a related issue regarding section 87.031 in light of article XVI. section 2. See generallyhi re Bazcuz, 251 S.W.3d 39, 43—45 (Tex. 2008) (discussing the legislative history of chapter 87).

In Bazan, the court stated:

This constitutional provision states that: “Laws shall be made to exclude from

office ...[persons] who have been or shall hereafter he convicted of bribery,

perjury, forgery, or other high crimes.” TEX. CONST. art. XVI, § 2. An individualconvicted of a felony is thus ineligible to hold public office whether theconviction comes before or after the individual’s election to office. See Id.; TEx.

ELEC. CODE § 141.001(4) (individual convicted of a felony ineligible to hold

public office); TEx. LOCAL Gov’T CODE § 87.031 (felony conviction operates as

an immediate removal from office); Op. Tex. Att’y Gen. No. H—20 (1973) (“Theterm ‘other high crimes’ includes any offense of the same degree or grade as those

specifically enumerated, namely felonies.”).

Bazcni, 251 S.W.3d at 41—42.

Appellant contends because his conviction of the felony offense of engaging in organized

criminal activity is based on the underlying misdemeanor offense of gambling promotion, a

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persons who have been convicted of bribery, perjury, forgery, or other high crimes.” TEX.

CONST. art. XVI, § 2. We do not interpret this constitutional provision as a limitation on moreexpansive regulation by the Legislature. The constitutional commentan’ provides:

This section is a verbatim copy of Art. 7. § 4 of the Constitution of 1845.

The constitutional convention of 1845 recognized that Texas was a large area, and

many sections thereof were relatively lawless. Furthermore, temptations were

enormous, and the persons tempted often had no social position to forfeit, hence

the conditions were not the most favorable to virtue.

It was admitted that although it was impossible to make men moral by

statute, yet it was possible to arm good citizens with weapons which would

improve their chances in the unceasing conflict with the various forms in which

political dishonesty appeared. Therefore this section was placed in the first state

constitution and carried over in all successive state constitutions.

TEX. CONST. art. XVI, § 2 interp. commentary (West 1993). The commentary provides the

purpose of this constitutional provision as a directive to the Legislature to enact specific laws; it

says nothing about limiting the power of the Legislature. Again, as the supreme court has stated,

“The term ‘other high crimes’ includes any offense of the same degree or grade as those

specifically enumerated, namely felonies.” Bazan. 251 S.W.3d at 41—42. After reviewing the

Texas Constitution, local government code, and supreme court’s analysis, we conclude section

87.032 is not unconstitutional as applied to appellant’s suspension from office after his felony

conviction for engaging in organized criminal activity. See TEX. CONST. art. XVI. § 2; TEx.

LOCAL GOVT CODE ANN. § 87.031; see (([vu Bacan, 251 S.W.3d at 44l5; Lipstvmb v. Randall.

985 S.W.2d 601, 610, n.l0 (Tex. App.—Fort Worth, 1999, pet. disrn’d) (“In analogous Texas

cases involving county officers convicted of crimes, automatic forfeiture under statute pending

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Appellant’s ninth issue is overruled.

Conclusion

Having resolved appellant’s nine issues against him, we affirm the trial court’s judgment.

/David Lewis!

DAVID LEWIS

JUSTICE

Do Not Publish

TEX. R. App. P. 47

121 179F.U05

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(Court of AppeaLs

JFiftl! District of tEexas at Dallas

JUDGMENT

DERICK DEWAYNE EVANS. Appellant On Appeal from the 363rd Judicial District

Court, Dallas County, Texas

No. 05-12-01 179-CR V. Trial Court Cause No. FlOOl 193W.

Opinion delivered by Justice Lewis

THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

Judgment entered this 28th day of March, 2014.

/David Lewis!

DAVID LEWIS

JUSTICE

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