NO CR NO CR IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

Transcription

1 NO CR NO CR IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS THE STATE OF TEXAS, APPELLANT VS. THOMAS DALE DELAY, APPELLEE APPEAL FROM THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS 331ST JUDICIAL DISTRICT, CRIMINAL ACTION NO. D1-DC CRIMINAL ACTION NO. D1-DC HONORABLE WAYNE PATRICK PRIEST, JUDGE PRESIDING STATE S BRIEF RONALD D. EARLE & RICHARD D. REED DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS STATE BAR NO STATE BAR NO AUSTIN, TEXAS AUSTIN, TEXAS FAX: FAX: ATTORNEYS FOR THE STATE OF TEXAS

2 IDENTITY OF PARTIES & COUNSEL THE STATE OF TEXAS, APPELLANT Ronald D. Earle & Richard D. Reed District Attorney Assistant District Attorney Travis County, Texas Travis County, Texas P.O. Box 1748 P.O. Box 1748 Austin, Texas Austin, Texas ATTORNEYS FOR THE STATE OF TEXAS THOMAS DALE DELAY, APPELLEE Dick DeGuerin, Esq. & Richard P. Keeton, Esq. DeGuerin Dickson & Hennessy Nickens Keeton Lawless Farrell Flack LLP 1018 Preston Street 600 Travis Street 7th Floor, The Republic Building Suite 7500 Houston, Texas Houston, Texas ATTORNEYS FOR THOMAS DALE DELAY - ii -

3 TABLE OF CONTENTS PAGE STATEMENT OF THE CASE 1 ISSUE PRESENTED 3 STATEMENT OF FACTS 4 SUMMARY OF ARGUMENT 6 ARGUMENT 10 PRAYER 46 CERTIFICATE OF SERVICE 47 - iii -

4 INDEX OF AUTHORITIES CASES PAGE Baker v. State, 547 S.W.2d 627 (Tex. Crim. App. 1977) , 14, 15, 26, 28 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) , 13, 17, 33 Brown v. State, 568 S.W.2d 137 (Tex. Crim. App. 1978) , 28 Buckhannan v. State, 252 S.W. 509 (Tex. Crim. App. 1923) Coit v. State, 808 S.W.2d 473 (Tex. Crim. App. 1991) Dubry v. State, 582 S.W.2d 841 (Tex. Crim. App. 1979) , 28, 33 Ex parte Barnes, 547 S.W.2d 631 (Tex. Crim. App. 1977) , 27, 28 Ex parte Davis, 412 S.W.2d 46 (Tex. Crim. App. 1967) Ex parte Lopez, 549 S.W.2d 401 (Tex. Crim. App. 1977) , 28 Ex parte Russell, 561 S.W.2d 844 (Tex. Crim. App. 1978) , 27, 28 Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App. 1997) Ex parte Trahan, 591 S.W.2d 837 (Tex. Crim. App. 1979) Gonzalez v. State, 915 S.W.2d 170 (Tex. App. Amarillo 1996, no pet.) Griffith v. State, 166 S.W.3d 261 (Tex. Crim. App. 2005) McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976) , 14, 15, 16, 17, 22, 23, 27, 28, 33 Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000) Smith v. State, 789 S.W.2d 590 (Tex. Crim. App. 1990) Snyder v. Compton, 28 S.W (Tex. 1894) Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000) iv -

5 STATUTES PAGE TEX. ELEC. CODE ANN (d) (Vernon 2003) , 12 TEX. ELEC. CODE ANN (e) (Vernon 2003) , 13 TEX. ELEC. CODE ANN (c) (Vernon 2003) , 13 TEX. ELEC. CODE ANN (c) (Vernon 2003) , 13 TEX. PEN. CODE ANN. 1.03(a) (Vernon 2003) , 18 TEX. PEN. CODE ANN. 1.07(a)(23) (Vernon 2003) , 18 TEX. PEN. CODE ANN. 1.07(a)(30) (Vernon 2003) , 10, 12, 14, 18 TEX. PEN. CODE ANN (Vernon 2003) , 6, 7, 8, 10, 12, 14, 15, 17, 18, 22, 26, 27, 31, 34, 39, 41, 42, 43, 44, 45 TEX. PEN. CODE ANN (b) (Vernon 2003) v -

6 CONSTITUTIONAL PROVISIONS PAGE TEX. CONST. art. II, TEX. CONST. art. V, vi -

7 STATEMENT OF THE CASE This case involves two felony indictments, both of which jointly charge John Dominick Colyandro, Thomas Dale DeLay, and James Walter Ellis with the offense of criminal conspiracy. 1 After having been served with a copy of each of the indictments, the Appellee in the instant case, Thomas Dale DeLay, filed motions to quash and dismiss the indictments on the ground that they failed to allege an offense cognizable under the penal laws of the State of Texas. 2 After notice and hearing thereon, the Honorable Wayne Patrick Priest, Senior District Judge, presiding by assignment for the Honorable Robert Anton Perkins, Judge of the 331st Judicial District Court of Travis County, Texas, granted the Appellee s motions in part and entered an order dismissing the first indictment in its entirety and dismissing a portion of the second indictment. 3 The State subsequently perfected the instant appeal by filing a notice of appeal with the 1 (Clerk s Record, Criminal Action No. D1-DC , hereinafter cited as C.R , at 3; Clerk s Record, Criminal Action No. D1-DC , hereinafter cited as C.R , at 3.) The first indictment, which was presented in Criminal Action No. D1-DC , contains a single count jointly charging John Dominick Colyandro, James Walter Ellis, and Thomas Dale DeLay with the offense of criminal conspiracy. The second indictment, which was presented in Criminal Action No. D1- DC , contains two counts: the first count jointly charges Colyandro, Ellis, and DeLay with the offense of criminal conspiracy; the second count jointly charges Colyandro, Ellis, and DeLay with the offense of money laundering. 2 (C.R at 8, 71.) 3 (C.R at 577; C.R at 362.) - 1 -

8 trial court. 4 4 (C.R at 589; C.R at 380.) - 2 -

9 ISSUES PRESENTED During the time frame alleged in the indictment, 5 did the offense of criminal conspiracy, as defined by Section of the Texas Penal Code, encompass a conspiracy to commit a felony offense defined by the Texas Election Code? 5 The indictment presented in Criminal Action No. D1-DC alleges that the offense was committed on or about the thirteenth day of September, A.D., (C.R at 3.) The indictment presented in Criminal Action No. D1-DC alleges that the offense was committed on or about and between the sixth day of September, A.D., 2002, and the fourth day of October, A.D., (C.R at 3.) - 3 -

10 STATEMENT OF FACTS On September 28, 2005, a Travis County grand jury presented to the 147th Judicial District Court of Travis County, Texas an indictment jointly charging John Dominick Colyandro, Thomas Dale DeLay, and James Walter Ellis with the offense of criminal conspiracy, a violation of TEX. PENAL CODE On October 3, 2005, another Travis County grand jury presented to the 403rd Judicial District Court of Travis County, Texas an indictment jointly charging John Dominick Colyandro, Thomas Dale DeLay, and James Walter Ellis with, inter alia, the offense of criminal conspiracy. 7 Both of the indictments allege that the offense occurred during 2002, in the County of Travis and State of Texas. 8 Both of the indictments further allege that the object of the conspiracy was to commit the felony offense of making a political contribution in violation of Subchapter D of Chapter 253 of the Texas Election Code. 9 On October 3, 2005, the Appellee filed a motion entitled Defendant Tom DeLay s Motion to Quash and Dismiss Indictment for Failure to State an Offense Under Texas Law, alleging therein that the first indictment failed to allege an 6 (C.R at 3.) 7 (C.R at 3.) 8 See fn. 5 supra. 9 The indictment presented in Criminal Action No. D1-DC further alleges that the object offense was a violation of Sections , , and of the Texas Election Code

11 offense cognizable under the laws of the State of Texas. 10 On October 17, 2005, the Appellee filed a motion entitled Tom DeLay s Motion to Quash and Dismiss Count I of Indictment Returned October 3, 2005, alleging therein that Count I of the second indictment failed to allege an offense cognizable under the laws of the State of Texas. 11 On November 22, 2005, the trial court heard the aforesaid motions and the arguments of counsel thereon. 12 At the conclusion of the hearing, the trial court took the Appellee s motions under advisement and granted both parties an additional week to submit written responses to briefs and other documents filed by opposing counsel. 13 On December 5, 2005, after reviewing all of the materials filed by counsel for both parties, the trial court entered an order granting the Appellee s motions in part and dismissing the first indictment and a portion of the second indictment. 14 On December 12, 2005, the State perfected the instant appeal by filing a notice of appeal with the trial court (C.R at 8.) 11 (C.R at 71.) 12 (C.R at 577; C.R at 362.) 13 (Ibid.) 14 (Ibid.) 15 (C.R at 589; C.R at 380.) - 5 -

12 SUMMARY OF THE ARGUMENT Each of the indictments in question allege that during 2002 Colyandro, DeLay, and Ellis committed the offense of criminal conspiracy, the object of which was the commission of a felony defined by the Texas Election Code. The Appellee contends that none of the indictments alleges the offense of criminal conspiracy, as defined by Section of the Texas Penal Code, because Section did not apply to violations of the Texas Election Code in The Appellee proffers several arguments in support of this contention. First, the Appellee argues that because the offense of criminal conspiracy, codified in Section of the Penal Code, is contained in Title 4 of the Penal Code, and because Section 1.03(b) of the Penal Code provides that The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise but Section 1.03(b) does not provide that the provisions of Title 4 apply to offenses defined by other laws, the offense of criminal conspiracy did not apply to violations of the Election Code during Second, the Appellee argues that the analysis and rationale in Baker v. State, 547 S.W.2d 627 (Tex. Crim. App. 1977), and Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976), support the proposition that Section did not apply to violations of the Texas Election Code in

13 Third, the Appellee points out that, in 2002, the Election Code contained no provision that expressly provides that the provisions of Title 4 of the Penal Code applied to offenses defined by the Election Code. Otherwise, the Appellee argues, the Legislature would not have amended the Election Code, as it did in 2003, to provide as follows: In addition to Section 1.03, Penal Code, and to other titles of the Penal Code that may apply to this code, Title 4, Penal Code, applies to offenses prescribed by this code. The trial court erred in granting the Appellee s motion and dismissing the indictment. The plain language of Sections and 1.07(a)(23) of the Penal Code (which respectively define the offense of criminal conspiracy and the word felony ) and Sections , , and of the Election Code (which define each of the object offenses as a felony) is clear and unambiguous: a person commits the offense of criminal conspiracy if, with intent that a felony be committed, he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense, and he or one or more of them performs an overt act in pursuance of the agreement. 16 The word felony means an offense so designated by law or punishable by death or confinement in a penitentiary. 17 A person commits an offense if he violates Section of the Election Code. 18 Such an offense is a felony of the third degree if the contribution 16 TEX. PEN. CODE ANN (Vernon 2003). 17 TEX. PEN. CODE ANN. 1.07(a)(23) (Vernon 2003). 18 TEX. ELEC. CODE ANN (d) (Vernon 2003)

14 is made in violation of Subchapter D of Chapter 253 of the Election Code. 19 A person commits an offense if he violates Section of the Election Code. 20 Such an offense is a felony of the third degree. 21 A corporation commits an offense if it knowingly makes a contribution in violation of Section of the Election Code. 22 Such an offense is a felony of the third degree. 23 The plain meaning of the aforementioned statutes is that a felony defined by the Election Code, like a felony defined by the Penal Code, can be the object of a criminal conspiracy. Because the plain meaning of the said statutes would not lead to absurd results, courts must give effect to it. In addition to the conclusion mandated by the plain language of the aforementioned statutes, a thorough analysis of the caselaw construing the offense of criminal conspiracy, a thorough examination of the legislative history underlying Section of the Penal Code and Section of the Election Code, and a reasoned application of accepted principles of statutory interpretation to those statutes demonstrates that the Legislature intended that the offense of criminal conspiracy, now codified in Section of the Penal Code, would encompass conspiracies to commit felony offenses defined by the Election Code, as well as felony offenses defined by the Penal Code. For the foregoing reasons, the State contends that the district court erred when it entered an order granting the 19 TEX. ELEC. CODE ANN (e) (Vernon 2003). 20 TEX. ELEC. CODE ANN (c) (Vernon 2003). 21 TEX. ELEC. CODE ANN (c) (Vernon 2003). 22 TEX. ELEC. CODE ANN (c) (Vernon 2003). 23 TEX. ELEC. CODE ANN (c) (Vernon 2003)

15 Appellee s motion to quash and dismiss the indictment for failure to allege an offense cognizable under the laws of the State of Texas

16 ARGUMENT I. The plain language of Sections and 1.07(a)(23) of the Penal Code is clear and unambiguous: the offense of criminal conspiracy encompasses a conspiracy to commit a felony offense defined by the Election Code just as it encompasses a conspiracy to commit a felony offense defined by the Penal Code. According to the leading case on the construction of criminal statutes, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), when a court interprets a statute, it seeks to effectuate the collective intent or purpose of the legislators who enacted it. 24 Courts do so because the Texas Constitution assigns the lawmaking function to the Legislature and the law interpreting function to the Judiciary. 25 When attempting to discern the collective legislative intent or purpose of a statute, a court must necessarily focus its attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. 26 The Court of Criminal Appeals has offered three reasons for focusing on the text of the statute in question: (1) the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor for her signature ; (2) the text is the only definitive evidence of what the legislators (and perhaps the Governor) had in 24 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 25 Boykin v. State, 818 S.W.2d at 785, citing TEX. CONST. art. II, Ibid

17 mind when the statute was enacted into law; and (3) the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted. 27 If 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, courts ordinarily give effect to that plain meaning. 28 Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute. 29 If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history. 30 This method of statutory interpretation is of ancient origin and is, in fact, the only method that does not unnecessarily invade the lawmaking province of the Legislature. The courts of this and other jurisdictions, as well as many commentators, have long recognized and accepted this method as constitutionally and logically compelled. 31 Indeed, the rule has become so deeply ingrained in the Court s jurisprudence that it has come 27 Ibid. 28 Ibid. (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). 29 Ibid. (citing Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) and quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967)). 30 Id. at (emphasis added). 31 Id. at

18 to refer to it as our cardinal rule of statutory construction. 32 The plain language of Sections and 1.07(a)(23) of the Penal Code (which define the offense of criminal conspiracy and the word felony respectively) and Sections , , and of the Election Code (which define each of the object offenses alleged in the indictments as a felony of the third degree ) is clear and unambiguous: a person commits the offense of criminal conspiracy if, with intent that a felony be committed including a felony defined by the Election Code he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense, and he or one or more of them performs an overt act in pursuance of the agreement. A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement. 33 The word felony means an offense so designated by law or punishable by death or confinement in a penitentiary. 34 A person commits an offense if he violates Section of the Election Code. 35 Such an offense is a felony of the third degree if the contribution is made in violation of Subchapter D of Chapter 32 See Griffith v. State, 166 S.W.3d 261, 262 (Tex. Crim. App. 2005); Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000); Rocha v. State, 16 S.W.3d 1, 13 (Tex. Crim. App. 2000); McCain v. State, 22 S.W.3d 497, 501 (Tex. Crim. App. 2000). 33 TEX. PEN. CODE ANN (Vernon 2003). 34 TEX. PEN. CODE ANN. 1.07(a)(23) (Vernon 2003). 35 TEX. ELEC. CODE ANN (d) (Vernon 2003)

19 253 of the Election Code. 36 A person commits an offense if he violates Section of the Election Code. 37 Such an offense is a felony of the third degree. 38 A corporation commits an offense if it knowingly makes a contribution in violation of Section of the Election Code. 39 Such an offense is a felony of the third degree. 40 The plain meaning of the aforementioned statutes is clear and unambiguous: the offense of criminal conspiracy encompasses a conspiracy to commit a felony offense defined by the Election Code just as it encompasses a conspiracy to commit a felony offense defined by the Penal Code. Moreover, the plain language of the statutes would not lead to absurd results. Rather, it leads to the quite logical result that a person who conspires with one or more other persons to commit a felony defined by the Election Code can be prosecuted for the offense of criminal conspiracy. 41 Because the plain meaning of the aforementioned statutes is clear and unambiguous and because such a construction would not lead to absurd results, this Court must give effect to it. To do otherwise would violate our State Constitution. 42 The district court erred in failing to adhere to this 36 TEX. ELEC. CODE ANN (e) (Vernon 2003). 37 TEX. ELEC. CODE ANN (c) (Vernon 2003). 38 Ibid. 39 TEX. ELEC. CODE ANN (c) (Vernon 2003). 40 Ibid. 41 As this brief will subsequently illustrate, Texas law has provided that a person who conspires with one or more other persons to commit a felony defined by the Election Code could be prosecuted for the offense of criminal conspiracy since 1907, when the Terrell Election Law of 1907 became effective. 42 Boykin v. State, 818 S.W.2d 785; Gonzalez v. State, 915 S.W.2d 170, 171 (Tex. App. Amarillo 1996, no pet.)

20 cardinal rule of statutory construction. II. Assuming, arguendo, that the Court rejects the foregoing argument that the plain language of Sections and 1.07(a)(23) of the Penal Code is clear and unambiguous, the authorities cited by the Appellee nonetheless do not support the proposition that the offense of criminal conspiracy does not encompass a conspiracy to commit a felony offense defined by the Election Code. Overlooking the fact that the plain meaning of the aforementioned statutes is clear and unambiguous, the Appellee contends that Section of the Penal Code did not apply to violations of the Texas Election Code in (C.R at 72.) As authority for this proposition, the Appellee cites Section 1.03(b) of the Penal Code and a series of opinions construing the applicability of Sections (which defines the offense of criminal attempt) and of the Penal Code to the Controlled Substances Act. 43 The Appellee observes that Section 1.03(b) of the Penal Code provides that the provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise. (C.R at 9-10, 359.) The Appellee further observes that the offense of criminal conspiracy is contained in Title 4 of the Penal Code and that Section 1.03(b) fails to mention Title 4. (C.R at 10.) Based upon these observations, the Appellee concludes that 43 Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976); Baker v. State, 547 S.W.2d 627 (Tex. Crim. App. 1977); Ex parte Barnes, 547 S.W.2d 631 (Tex. Crim. App. 1977); Ex parte Lopez, 549 S.W.2d 401 (Tex. Crim. App. 1977); Ex parte Russell, 561 S.W.2d 844 (Tex. Crim. App. 1978); Brown v. State, 568 S.W.2d 137 (Tex. Crim. App. 1978); Dubry v. State, 582 S.W.2d 841 (Tex. Crim. App. 1979)

21 the offense of criminal conspiracy did not apply to violations of the Election Code during (C.R at 9-10, 359.) Without citation of any legal authority for such a proposition, the Appellee contends that Section 1.03(b), specifying the applicability of certain Penal Code Titles to offenses defined by other laws, clearly establishes that, absent specific statutory authority, other Titles of the Penal Code will not apply to criminal acts created by other Codes. (C.R at 359.) The Appellee then proceeds to argue that the analysis and rationale of a series of opinions, beginning with Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976), support the proposition that Section did not apply to violations of the Texas Election Code in However, none of the authorities cited by the Appellee neither the statute, nor the cases support the proposition that the offense of criminal conspiracy, codified in Section of the Penal Code, does not encompass a conspiracy to commit a felony offense defined by the Election Code. A. The Appellee s argument that the offense of criminal conspiracy does not encompass a conspiracy to commit a felony offense defined by the Election Code because Section 1.03(b) of the Penal Code does not mention Title 4, wherein the offense of criminal conspiracy is defined, is based upon a misunderstanding of Section 1.03(b). The Appellee s argument regarding the meaning and significance of Section 1.03(b) of the Penal Code is based upon the majority opinions rendered in Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976) and Baker v. State, 547 S.W.2d 627 (Tex. Crim. App. 1977). The majority s conclusion in Moore that the

22 attempt provisions set forth in Section of the Penal Code did not apply to the Controlled Substances Act was based upon the following reasoning. First, the court observed that Section 1.03(b) of the Penal Code provided that the provisions of Titles 1, 2, and 3 of the code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise. 44 After noting that Section 15.01, which defined the offense of criminal attempt, was contained in Title 4 of the Penal Code, the court concluded that Section 1.03(b) of the Penal Code did not apply to Section of the Code. From this conclusion, the court reasoned that Section of the Penal Code did not pertain to offenses defined by the Controlled Substances Act because offenses defined by the Controlled Substances Act were offenses defined by other laws. The first problem with the Court s analysis was that it was based upon an unstated and unjustified premise, namely, that Section could not pertain to offenses defined outside the Penal Code unless Section 1.03(b) expressly stated that the provisions of Title 4, in which Section was found, applied to offenses defined by other laws. The majority in Moore never examined Section to determine whether the statute itself might, ex proprio vigore, i.e., without depending upon Section 1.03(b), apply to offenses defined by other laws. Justice Douglas pointed this out in the following passage from his dissent: The wording of V.T.C.A., Penal Code, Sections 15.01(a) and 1.03(a), sheds further light on the Legislature s intent. Section 15.01(a) is not limited to offenses defined in the code. It states that 44 Moore v. State, 545 S.W.2d at 142 (emphasis in original)

23 one must intend to commit an offense to come within the ambit of the attempt provisions. Section 1.03(a) provides that: Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute. Thus, it was the intent of the Legislature to make all attempts to commit all offenses a violation of the provisions of Title 4 on Preparatory Offenses. 45 Had the majority in Moore begun with an examination of the plain language of Section itself, as the Court s holding in Boykin subsequently mandated, it would have been obliged to reach a different result. 46 Although Moore dealt with Section of the Penal Code rather than Section 15.02, the majority opinion in the Baker case, which involved Section 15.02, was based entirely upon the majority s assessment of the function and purpose of Section 1.03(b) in Moore. Moreover, as it did in the Moore case, the majority opinion in the Baker case failed to consider whether the language of the statute under which the prosecution was brought was sufficient, ex proprio vigore, to make it applicable to offenses defined outside the Penal Code. Indeed, the argument regarding Section is even stronger than the argument regarding Section Section provides that a person commits the offense of criminal conspiracy only if, with intent to commit a felony, he agrees with one or more 45 Moore v. State, 545 S.W.2d at It is worth noting here that each of the cases relied upon by the Appellee predate the opinion rendered in Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)

24 persons that they or one or more of them engage in conduct that would constitute the offense. 47 Section 1.07(a)(23) provides that felony means an offense so designated by law or punishable by death or confinement in a penitentiary. 48 Section 1.03(a) provides that conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute. 49 Moreover, Section 1.07(a)(30) provides that law means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. 50 It is clear from the definition of the offense of criminal conspiracy set forth in Section and the definitions of the words felony, offense, and law set forth in Sections 1.07(a)(23) and 1.03(a) 1.07(a)(30), respectively, that a person commits the offense of criminal conspiracy if he conspires to commit any felony defined by Texas law, regardless of where the statute defining the offense is found. Consequently, it is evident from the plain language of the aforementioned statutes that Section does not depend upon the inclusion of a reference to 47 TEX. PEN. CODE ANN (Vernon 2003). 48 TEX. PEN. CODE ANN. 1.07(a)(23) (Vernon 2003). This definition of felony actually dates back to Texas first penal code, the Penal Code of 1856, Article 56 of which provided as follows: Every offence (sic) which is punishable by death or by imprisonment in the penitentiary either absolutely or as an alternative, is a felony; every other offence (sic) is a misdemeanor. See Act of August 28, 1856, 6th Leg., R.S., 1856 Tex. Gen. Laws TEX. PEN. CODE ANN. 1.03(a) (Vernon 2003). 50 TEX. PEN. CODE ANN. 1.07(a)(30) (Vernon 2003)

25 Title 4 in Section 1.03(b) in order for it to pertain to felony offenses defined outside the Penal Code. The second problem with the Moore (and, therefore, Baker) analysis is that it fails to account for the basic structure of the Penal Code and the Legislature s concomitant reason for providing in Section 1.03(b) that the provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise. Neither opinion considered the function or purpose of Section 1.03(b) i.e., why the Legislature bothered to include the provision in the Penal Code. Had it done so, the Court likely would have reached a different conclusion. The current version of the Penal Code, known as the Penal Code of 1974, was adopted by the 63rd Legislature during its regular session in As originally adopted, the code was divided into ten basic parts, denominated titles. 52 Each title was divided into one or more chapters, and each chapter was divided into sections. 53 Titles 1, 2, and 3 share one significant feature in common: they each deal with matters that can arise in any criminal prosecution, regardless of the nature of the offense charged or where the offense is defined. Title 1, entitled Introductory Provisions, contains chapters dealing with general matters (such as territorial jurisdiction and definitions of terms), burden of proof, and multiple prosecutions. Title 2, entitled General Principles of Criminal 51 Act of June 14, 1973, 63d Leg., R.S., ch. 399, 5, 1973 Tex. Gen. Laws 883, Id. at Act of June 14, 1973, 63d Leg., R.S., ch. 399, 5, 1973 Tex. Gen. Laws

26 Responsibility, contains chapters dealing with criminal responsibility in general, criminal responsibility for the conduct of another, general defenses to criminal responsibility, and justification excluding criminal responsibility. Title 3, entitled Punishments, contains provisions classifying offenses and defining the punishment that applies to each classification. The remaining titles, Titles 4 through 11, each deal with specific offenses. 54 Title 4, as its title indicates, deals with offenses traditionally known as inchoate offenses. Title 5 deals with offenses against persons; Title 6, with offenses against the family; Title 7, with offenses against property; Title 8, with offenses against public administration; Title 9, with offenses against public order and decency; Title 10, with offenses against public health, safety, and morals; and Title 11, with organized crime. Like Titles 1 through 3, Titles 4 through 11 share one significant feature in common: they each deal with specific types of offenses, defining the elements of those offenses, defining certain terms that are used to define the elements of those offenses, describing defenses that apply to particular offenses, clarifying matters that do not constitute defenses, etc. When one understands how the Legislature organized the Penal Code, it becomes obvious why the Legislature included the language in Section 1.03(b) specifying that the provisions of Titles 1, 2, and 3 apply to offenses defined by 54 The Penal Code of 1974 originally contained only ten titles. Act of June 14, 1973, 63d Leg., R.S., ch. 399, 1, 1973 Tex. Gen. Laws 883. Title 11, entitled Organized Crime, was added by the Legislature in Organized Crime Act, 65th Leg., R.S., ch. 346, 1, 1977 Tex. Gen. Laws

27 other laws, unless the statute defining the offense provides otherwise. Because the provisions set forth in Titles 1, 2, and 3 involve matters that may arise in any criminal prosecution, and because the Legislature wanted those provisions to apply to all offenses, regardless of where they are defined, the Legislature specified that they would apply to offenses defined by other laws, unless the statute defining the offense provides otherwise. Were it not for the Legislature s inclusion of Section 1.03(b), uncertainty among lawyers and judges alike would have undoubtedly arisen as to whether the provisions of Titles 1, 2, and 3 applied to offenses defined outside the Penal Code. The language in Section 1.03(b) serves a significant purpose: it clarifies the Legislature s intent that the provisions of Titles 1, 2, and 3 apply to offenses defined outside the Penal Code, unless the statute defining the offense provides otherwise. When one understands the purpose of Section 1.03(b), it becomes apparent why the Legislature mentioned only Titles 1, 2, and 3 therein, instead of also mentioning other titles such as Title 4. Simply stated, the drafters of the Penal Code of 1974 saw no need to refer to any other title in Section 1.03(b) because each of the remaining titles, including Title 4, dealt with the elements of individual offenses, not general principles applicable to all offenses. As explained previously, the plain meaning of Sections 15.02, 1.07(a)(23), 1.03(a), and 1.07(a)(30) of the Penal Code is clear and unambiguous: a person commits the offense of criminal conspiracy if he conspires to commit any felony defined by Texas law, regardless of where the statute defining the offense is found. Section

28 15.02 is worded in such a way that it was unnecessary for the Legislature to include a reference to Title 4 in Section 1.03(b); the language of Section is sufficient, ex proprio vigore, to make it applicable to felony offenses defined outside the Penal Code. Merely by reading the plain language of the aforementioned statutes, any person of common intelligence would recognize that a person commits the offense of criminal conspiracy if, with intent that any felony defined by Texas law be committed, he engages in the conduct described in Section Consequently, it was as unnecessary to add Title 4 to the list of titles enumerated in Section 1.03(b) as it would have been to add Title 11 to the list when the Legislature later amended the Penal Code to add Chapter 71, which defines the offense of engaging in organized criminal activity, and it clearly was unnecessary for the Legislature to add Title 11. Nichols v. State, 653 S.W.2d 768, 774 (Tex. Crim. App. 1983). B. The cases cited by the Appellee are fundamentally distinguishable from the case at bar. Careful analysis of the majority opinion rendered in Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976) indicates that three factors were critical to the Court s holding: (1) the court s evaluation of the function and purpose of Section 1.03(b) of the Penal Code; (2) the legislative history of the Texas Controlled Substances Act; and (3) the date that the Controlled Substances Act became effective relative to the effective date of the new Penal Code. The indictment under which the appellant was convicted alleged that the defendant attempted to

29 obtain a controlled substance by fraud. Moore v. State, 545 S.W.2d at 141. The appellant urged that the indictment was fundamentally defective because there was no law against attempting to obtain a controlled substance by fraud. Ibid. The court first observed that the Controlled Substances Act contained no provision defining attempt to obtain a controlled substance by fraud as an offense. Ibid. It next observed that no general attempt provision was contained in the Controlled Substances Act. Ibid. The court then considered the State s argument that the Legislature intended for the criminal attempt provision of the new Penal Code, effective January 1, 1974, to apply to the Controlled Substances Act. Ibid. The court then examined the language of Section 1.03(b) of the Penal Code, which provided as follows: The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code. Moore v. State, 545 S.W.2d at 142 (emphasis in original). After observing that the general criminal attempt provisions of Section were contained in Title 4 of the Penal Code, the court concluded that Section 1.03(b) did not apply to Section However, as Judge Douglas pointed out in his dissenting opinion, the majority never examined the plain language of Section to determine whether it might, ex proprio vigore, apply to offenses defined by the Controlled Substances Act. Id. at 143. Instead, the court went on to examine the legislative history of the Controlled Substances Act vis-à-vis the legislative history of the new Penal Code

30 The court observed that the Legislature had previously amended the forerunner of the Controlled Substances Act, the Uniform Narcotic Act, to add an attempt provision. Id. at 142. Ibid. The court then noted that when the Legislature enacted the Controlled Substances Act it repealed the Uniform Narcotics Act but failed to include an attempt provision in the new act. 55 The court paid particular attention to the fact that the Controlled Substances Act became effective on August 27, 1973, four months before the new Penal Code took effect. Ibid. The majority concluded that the Legislature did not omit the attempt provision from the Controlled Substances Act with the knowledge that the new Penal Code (effective four months after the Controlled Substances Act) would make the necessary provisions for making any attempt to violate any provisions of the Controlled Substances Act a criminal offense. Ibid. C. The legislative history of the Election Code varies significantly from the legislative history of the Controlled Substances Act. Aside from the fact that Moore and Baker both involved offenses defined by the Controlled Substances Act, rather than the Election Code, the legislative history of the Election Code varies significantly from that of the Controlled Substances Act. The 52d Legislature adopted Texas first election code in 1951, 55 Although the Moore opinion failed to point it out, before the adoption of the Penal Code of 1974, the Texas Penal Code contained six specific attempt provisions (Art attempt to suborn perjury; Art attempt to rape; Art attempt at abortion; Art attempt at arson; Art attempt at burglary; Art. 1439; and attempt to steal from the person). However, it contained no general attempt provision such as the one now codified in Section

31 consolidating in a single code all statutes, civil and criminal, relating to elections. Act of June 28, 1951, 52d Leg., R.S., ch. 492, 1, 1951 Tex. Gen. Laws When it did so, however, it left intact all of the offenses previously codified in Title 6 of the Penal Code, entitled Offenses Affecting the Right of Suffrage, expressly providing in the caption of House Bill No. 6, the bill that adopted the Election Code, that nothing in this Act shall be construed as repealing or in any way affecting the legality of any penal provision of the existing law. Act of June 28, 1951, 52d Leg., R.S., ch. 492, preamble, 1951 Tex. Gen. Laws As a result, until January 1, 1974, when the new Penal Code of 1974 became effective, Title 6 of the antecedent penal code, the Penal Code of 1925, still contained Article 213, which prohibited any corporation authorized to do business in this State from making any money contribution, or its equivalent for the purpose of aiding or defeating the election of any candidate for federal office from this State, or any candidate for any State, district, county or precinct office in this State, or for the purpose of aiding or defeating any political measure submitted to a vote of the people of this State, and which provided that every officer or director of any corporation who shall consent to any such contribution shall be guilty of a felony offense punishable by a fine of not less than five hundred nor more than one thousand dollars, or imprisonment in the penitentiary for not less than two nor more than five years, or both such fine and imprisonment. 56 See Act of April 6, 56 When the Legislature enacted the Penal Code of 1974, it provided in Section 5 of the act for transfer of articles of the Penal Code of Texas, 1925, which are not repealed by

32 1907, 30th Leg., ch. 84, 1, 1907 Tex. Gen. Laws 169, repealed by Act of June 18, 1981, 67th Leg., ch. 873, 3, 1981 Tex. Gen. Laws Thus, whereas there was a four-month lapse between the enactment of the Texas Controlled Substances Act, which contained no attempt provision, and the enactment of the new Penal Code, which did contain such a provision, there was no lapse in the law that defined the felony offense of making a corporate political contribution. The Legislature simply transferred the provisions of Article 213 of the Penal Code to the Election Code. Moreover, as this brief will later establish, there was no lapse in the law that made it an offense to conspire to commit a felony defined by Article 213. That law existed prior to and at the time of the adoption of the Penal Code of Although the Baker case involved a prosecution brought under Section of the Penal Code, it too involved a predicate offense defined by the Controlled Substances Act, rather than the Election Code. Baker v. State, 547 S.W.2d at 628. Consequently, like the majority in Moore, the majority in Baker this Act to the civil statutes or other appropriate places within the framework of Texas statute law, without reenactment and without altering the meaning or effect of the unrepealed articles, so that when this Act takes effect there will be only one Texas Penal Code without the confusion that would result if remnants of the old Penal Code were allowed to continue to exist in that form in the statute books. Act of June 14, 1973, 63d Leg., R.S., ch. 399, 5, 1973 Tex. Gen. Laws 883, 995. Among numerous other election-related provisions that had been theretofore included in Title 6 of the Penal Code of 1925, article 213, the forerunner of Section of the current Election Code, was transferred to the Election Code of Id. at 996a. 57 In 1973, the Legislature transferred Article 213 of the Penal Code to the Election Code, where it was codified under Section 317. The same provision was codified in Vernon s Texas Election Code as Article See Act of June 14, 1973, 63d Leg., R.S., ch. 399, 5, 1973 Tex. Gen. Laws 995, 996a

33 limited its holding to the specific facts presented: [W]e hold that the criminal conspiracy provisions set forth in Sec , supra, do not apply to the Controlled Substances Act. Id. at 629 (emphasis added). Because of significant differences in the legislative history of the Texas Controlled Substances Act and the Election Code, neither of the cases cited by the defendant constitute direct or controlling legal authority for the proposition that a person does not commit an offense under Section of the Penal Code if he conspires to commit a felony defined by the Election Code. D. None of the cases cited by the Appellee involved a criminal conspiracy to commit a felony defined by the Election Code. All of the cases cited by the Appellee share two significant features in common: each of them involves the prosecution of a Title 4 offense either criminal attempt or criminal conspiracy that was based upon an offense defined by the Texas Controlled Substances Act, and none of them addressed the issue presented in the case at bar, i.e., whether the offense of criminal conspiracy, codified in Section of the Penal Code, encompasses a conspiracy to commit a felony offense defined by the Election Code. In Moore v. State, Ex parte Barnes, and Ex parte Russell, the offense under consideration was criminal attempt to commit an offense defined by the Controlled Substances Act, namely, obtaining a controlled substance by fraud Moore v. State, 545 S.W.2d at 141; Ex parte Barnes, 547 S.W.2d at 632; Ex parte Russell, 561 S.W.2d at

34 In Brown v. State, the offense was criminal attempt to commit an offense defined by the Controlled Substances Act, namely, delivery of morphine. 59 In Moore, the Court articulated its holding as follows: We hold that the attempt provisions set forth in the new Penal Code in Sec , supra, do not apply to the Controlled Substances Act. 60 In Barnes, Russell, and Brown, the Court merely reiterated its holding in the Moore case. 61 In Baker v. State and Ex parte Lopez, the offense under review was conspiracy to commit a felony offense defined by the Controlled Substances Act, namely, delivery of more than one-fourth ounce of marihuana, and delivery of heroin, respectively. 62 In Baker, the Court expressed its holding as follows: The question before us is whether the criminal conspiracy provisions of the new Texas Penal Code apply to the Controlled Substances Act. We hold they do not. 63 In Lopez, the Court merely reiterated its holding in the Baker case. Finally, in Dubry v. State, the offense under consideration was conspiracy or attempt to possess more than four ounces of marihuana. 64 In Dubry, the Court reiterated its holdings in the Baker and Moore cases as follows: the criminal conspiracy and attempt provisions of the Penal Code do not apply to violations of 59 Brown v. State, 568 S.W.2d at Moore v. State, 545 S.W.2d at Ex parte Barnes, 547 S.W.2d at 632; Ex parte Russell, 561 S.W.2d at 844; Brown v. State, 568 S.W.2d at Baker v. State, 547 S.W.2d at 628; Ex parte Lopez, 549 S.W.2d at Ibid. 64 Dubry v. State, 582 S.W.2d at

35 the Controlled Substances Act. 65 Because the Court s holding in each case was limited to the issue of whether the criminal attempt or criminal conspiracy provisions of the Penal Code apply to violations of the Controlled Substances Act, none of the cases constitute direct precedential authority binding upon either a district court or a court of appeals. E. The Moore Baker line of cases cited by the Appellee overlooked direct precedent holding that it was the intention of the Legislature in the enactment of the conspiracy statute to include within its prohibition a conspiracy to commit any felony which might thereafter be made such by the legislature. The Moore Baker line of cases overlooked a previous opinion wherein the Court of Criminal Appeals had already addressed the same issue presented therein. In Buckhannan v. State, 252 S.W. 509 (Tex. Crim. App. 1923), the Court of Criminal Appeals was presented with a bill of exceptions regarding a conviction for conspiracy to commit the felony offense of unlawful manufacture of intoxicating liquor. The appellant raised three points of error, two attacking the sufficiency of the indictment upon which he was convicted, and a third challenging the sufficiency of the evidence. 66 The first point contended that the indictment was insufficient because it failed to allege that the appellant and his coconspirators did not have a legal permit authorizing them to manufacture 65 Ibid. 66 Buckhannan v. State, 252 S.W. at

36 intoxicating liquor. 67 Citing two previous opinions holding that the possession of a permit was immaterial to the issue of guilt or innocence, the court quickly disposed of the appellant s first point. 68 The second point of error presented was almost identical to the one presented in Baker. The second point contended that the indictment charged no offense because at the time of the enactment of the statute making it a conspiracy to commit a felony, punishable by law, there was no such offense in this State as the unlawful manufacture of intoxicating liquor. 69 The court disposed of that point by stating as follows: In our opinion it was the intention of the Legislature in the enactment of the conspiracy statute to include within its prohibition a conspiracy to commit any felony which might thereafter be made such by the legislature. 70 Although one might be tempted to simply dismiss the Buckhannan opinion as both outdated and irrelevant the case was decided in 1923, and the court was interpreting the Penal Code of 1911, rather than the Penal Code of 1974 it would be a mistake to do so, especially without first examining the legislative history of the offense of criminal conspiracy. F. If extended to its logical conclusion, the analysis and rationale of the Moore Baker line of cases would have consequences beyond the case at bar. According to the reasoning employed in the Moore Baker line of cases, the offense of criminal conspiracy encompasses only conspiracies to commit 67 Ibid. 68 Ibid. 69 Ibid. 70 Ibid. (emphasis added)