Opinion
No. 13-02-020-CR
Opinion delivered and filed June 24, 2004. Concurring Memorandum Opinion delivered and filed August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 103rd District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices, HINOJOSA and RODRIGUEZ.
MEMORANDUM OPINION
Appellant, Natividad Valencia a/k/a Tivie Valencia, was tried before a jury and convicted on two counts of bribery. See TEX. PEN. CODE ANN. § 36.02(a)(1) (Vernon 2003). The trial court assessed a sentence of five years imprisonment, probated, and a $1,500.00 fine. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2(a)(2). By two issues, appellant contends the evidence is legally and factually insufficient to support his conviction for bribery, and the trial court erred in admitting hearsay evidence. We affirm.
Appellant also appears to contend that the trial court erred in denying his motion to quash the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(h). Because this contention is inadequately briefed, we will not address it on appeal.
I. Background
Valencia was one of five county commissioners in Cameron County, Texas, when he was indicted for bribery. At the time of the offense, the commissioner's court was accepting applications to fill Cameron County Constable positions for precinct four and precinct six. Josaphat "Hoss" Lozano and Juan Rodriguez applied for the constable position in their respective precinct. During the time leading up to the appointment of the constable positions, Commissioner Valencia communicated to both Lozano and Rodriguez that he would vote for their appointment to constable, but they in turn needed to hire Ofelio Muniz and Rolando Mancilla. The condition put on Commissioner Valencia's vote caused Rodriguez to withdraw his application and ultimately resulted in Lozano contacting the district attorney's office.II. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends the evidence is both legally and factually insufficient to sustain a conviction for bribery.A. Standard of Review
In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. On appeal, we measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). In evaluating the factual sufficiency of the evidence, this Court must complete a neutral review of all the evidence. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We must then determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We are also required to accord due deference to the fact-finder's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003).B. The Law
Under section 36.02(a)(1) of the Texas Penal Code, a person commits the offense of bribery if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another any benefit as consideration for the recipient's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter. TEX. PEN. CODE ANN. § 36.02(a)(1) (Vernon 2003). It is no defense to prosecution that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason. Id. § 36.02(b). Thus, to convict appellant on both counts of bribery under a hypothetically correct jury charge, the State must prove that: (1) Natividad Valencia intentionally or knowingly offered, conferred or agreed to confer a benefit as consideration for Josaphat "Hoss" Lozano's exercise of discretion or decision as a public servant to hire or employ Rolando Mancilla; and (2) Natividad Valencia intentionally or knowingly offered, conferred or agreed to confer a benefit as consideration for Juan Rodriguez's exercise of discretion or decision as a public servant to hire or employ Ofelio Muniz.C. Analysis
Appellant contends the evidence is legally and factually insufficient to support his conviction for bribery. Specifically, appellant challenges only the sufficiency of the evidence regarding proof of (1) a bilateral agreement, and (2) a benefit.1. Bilateral Agreement
Before addressing this evidentiary issue, we must first determine whether proof of a bilateral agreement was required. Appellant cites McCallum v. State, 686 S.W.2d 132, 136 (Tex.Crim. App. 1985), for the proposition that a bribery conviction requires a bilateral agreement. McCallum involved a defendant in a civil suit who was convicted of bribing a juror. The indictment in McCallum alleged that the defendant conferred a benefit as consideration for the juror's decision and vote. Id. The court of criminal appeals in analyzing the "consideration" element of bribery, concluded that when the indictment alleges the accused intentionally or knowingly "conferred" a benefit as consideration, the State is required to prove "a bilateral arrangement — in effect an illegal contract to exchange a benefit as consideration for the performance of an official function." Id. After reviewing the evidence presented at trial, the court concluded there was no evidence of a bilateral agreement and reversed the conviction. Id. at 139. In response the State argues that McCallum is distinguishable under the facts of this case, and that this Court should follow Martinez v. State, 696 S.W.2d 930 (Tex. App.-Austin 1985, pet ref'd). In Martinez, a police officer was found guilty of the offense of bribery. Id. at 934. The indictment alleged in part that the officer intentionally and knowingly solicited a benefit as consideration for the police officer's decision as a public servant. Id. at 930. The Austin court affirmed the conviction holding that where it is alleged in the indictment that the accused "offered" or "solicited" a benefit as consideration for an official act, it is not necessary to prove a bilateral arrangement or unlawful contract. Id. at 933. The offense of bribery is complete when the offer or solicitation is made. Id. The Martinez court distinguished McCallum, finding that proof of a bilateral arrangement was necessary only where, as in that case, the State was required by the allegations of the charging instrument to prove that the benefit was in fact conferred or accepted. Id. In this case the indictment on each count of bribery stated that appellant "intentionally or knowingly offered, conferred or agreed to confer a benefit. . . ." Because the indictment in this case alleges, in the disjunctive, that appellant offered or conferred a benefit, the State was not required to prove, as in McCallum, that the benefit was conferred. We therefore distinguish McCallum from the facts of this case, and, following Martinez, conclude that the State was not required to prove the existence of a bilateral agreement. See id. Thus, we need not reach appellant's sufficiency issue regarding a bilateral agreement.2. Benefit
Appellant also argues that the State failed to prove the "benefit" element of bribery. Appellant specifically complains that there is insufficient evidence to establish a pecuniary gain. Section 36.01 of the Texas Penal Code defines a "benefit" as "anything reasonably regarded as pecuniary gain or pecuniary advantage. . . ." TEX. PEN. CODE ANN. § 36.01(3) (Vernon 2003). In determining what may be included in the definition of "benefit," section 1.05(a) of the penal code instructs us not to apply a strict construction to the law in question. Id. § 1.05(a). Rather, the provisions of the code are to be construed "according to the fair import of their terms, to promote justice and effect the objectives of the code." Id. It is clear from the language of section 36.01, that the Legislature intended not only to include "pecuniary gain" or "advantage" in the definition of "benefit," but also "anything reasonably regarded" as pecuniary gain or advantage. Id. § 36.01(3). The inclusion of "anything reasonably regarded" broadens the definition and allows latitude in its interpretation. A review of the record reveals appellant, as county commissioner, offered one of three votes necessary for appointment to the position of county constable. Lozano testified at trial that the county constable position was paid an annual salary of approximately $34,800.00. Additionally, Lozano testified that he believed appellant was offering him a job through his vote, and acknowledged that he was receiving a substantial benefit and pecuniary gain. See Kaisner v. State, 772 S.W.2d 528, 529 (Tex. App.-Beaumont 1989, pet. ref'd) (stating that under the penal code, the offer of a job was the offer of a benefit). Reviewing this evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found beyond a reasonable doubt that appellant's vote for a salaried county constable position, could be reasonably regarded as a pecuniary gain or advantage and thus constituted a "benefit." See Jackson, 443 U.S. at 319. Therefore, the evidence is legally sufficient to sustain the conviction for the offense of bribery. Moreover, as there is no contrary evidence, we cannot conclude that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See King, 29 S.W.3d at 563. Therefore, the evidence is factually sufficient to support appellant's conviction. Accordingly, we overrule appellant's first issue.3. Discretion to Hire or Employ
Although uncontested by appellant, the dissent addresses the sufficiency of the evidence regarding the "exercise of discretion or decision as a public servant to hire or employ" portion of the indictment, and concludes that there was no evidence regarding this element. As a basis for this conclusion the dissent states that Lozano and Rodriguez, as county constables, would not have the authority to hire or employ deputy constables. However, the dissent ignores the plain language of section 36.02(b) which states that it is no defense that the person whom the actor sought to influence was not qualified to act in the desired way. See TEX. PEN. CODE ANN. § 36.02 (Vernon 2003). Under the penal code, whether Lozano or Rodriguez would have the power to hire or employ deputy constables is not an issue. Furthermore, the dissent relies on section 86.011(a) of the local government code, which states the commissioners court shall approve and confirm the appointment of the deputy only if the commissioners court determines that the constable needs a deputy to handle the business of the constable's office originating in the precinct. TEX. LOC. GOV'T CODE ANN. § 86.011(a) (Vernon 1999). Although the dissent is correct that the employment of a deputy constable requires confirmation of the commissioners court, section 86.011(a) does not give the commissioners court any discretion to select the deputy constable or even to reject a particular candidate. See id. The only inquiry the commissioners court is allowed and required to make under this section is whether a deputy constable is necessary to handle the precinct's business. The discretion to select the potential deputy constable lies within the constable's discretion. Accordingly, the hiring of Mancilla or Muniz would have been a decision involving the exercise of Lozano's and Rodriguez's discretion.III. INADMISSIBLE HEARSAY
In his second issue, appellant contends the trial court erred in admitting prejudicial hearsay into evidence. Appellant complains of a letter offered by the State that was admitted over appellant's objection. This Court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably. Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex.Crim. App. 1990). We will not reverse a trial court if its ruling is within the "zone of reasonable disagreement." Id. at 391. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). When the State attempted at trial to introduce a letter allegedly written by appellant, defense counsel promptly objected. In response to defense counsel's objection the trial court admitted the letter into evidence accompanied by a limiting instruction that the letter was being admitted not to show that it came from the defendant, but only to show that it was received by the witness. Since the letter was not admitted to prove the truth of the matter asserted, but merely to show that the witness received the letter, the hearsay rule does not bar this evidence. See City of Austin v. Houston Lighting Power Co., 844 S.W.2d 773, 791 (Tex. App.-Dallas 1992, writ denied). Therefore, there was no abuse of discretion. Appellant's second issue is overruled.IV. CONCLUSION
Accordingly, the judgment of the trial court is affirmed.CONCURRING MEMORANDUM OPINION
This case is now before the Court on motion for rehearing en banc. A majority of the panel denied appellant Natividad Valencia's motion for rehearing. Valencia asks us to consider en banc the majority's opinion and address: (1) a "bilateral" requirement in the bribery statute as discussed in the dissenting opinion; and (2) "relevance versus prejudice" in connection with his assertion of erroneously admitted hearsay evidence. I agree with the majority's decision to deny rehearing en banc. I write separately to clarify the criteria applicable to en banc reconsideration. Appellate court panels are essentially three-judge courts. Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd.) (Jennings, J., concurring). En banc review at intermediate appellate courts was instituted to maintain uniformity of a court's decisions as a single, unitary body, even though the court may sit in panels. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a motion for rehearing by an en banc court:
En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration.TEX. R. APP. P. 41.2(c); see also TEX. R. APP. P. 49.7. The rule is clear. Univ. of Tex. Med. Branch v. Barrett, 112 S.W.3d 815, 820 (Tex. App.-Houston [14th Dist.] 2003, rule 53.7(F) mot. for extension of time filed) (en banc) (Anderson, J., dissenting). When there is no conflict among panel decisions, the existence of "extraordinary circumstances" is required before en banc consideration may be ordered. Thompson, 89 S.W.3d at 856 (Jennings, J., concurring). The standard for en banc consideration is not whether a majority of the en banc court disagrees with all or a part of a panel opinion. Id. Neither is an assertion that an issue is "important" sufficient. Id. Thus, there are only two bases on which to grant en banc review: conflict among panel decisions or "extraordinary circumstances." See Barrett, 112 S.W.3d at 820 (Anderson, J., dissenting). In his motion for rehearing en banc, Valencia has neither identified a conflict in our jurisprudence nor articulated extraordinary circumstances requiring full court review. En banc consideration of this case is not necessary to secure or maintain uniformity of this Court's decisions. The divided panel decision does not amount to a conflict in our jurisprudence or an extraordinary circumstance. The decision was the panel's to make. The issues in this case are important, but Valencia has not met the criteria imposed by rule 41.2. TEX. R. APP. P. 41.2(c). Therefore, respectfully, I concur with the decision to deny rehearing en banc.
DISSENTING OPINION
The majority concludes that the evidence in this case is legally sufficient to support appellant's conviction for bribery. Specifically, the majority holds that the evidence of appellant's offer to vote for or recommend the appointment of two applicants for vacant constable positions is commensurate with an offer of a "benefit" under the bribery statute. Because I conclude the evidence is legally insufficient, I respectfully dissent.