           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. PD-1346-09



                             ALLEN RAY SHIPP, Appellant

                                              v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SIXTH COURT OF APPEALS
                            FANNIN COUNTY

              M EYERS, J., filed a concurring opinion.

                               CONCURRING OPINION

       I agree with the plurality that the evidence is legally sufficient to support the jury’s

verdict that the receipt was a “commercial instrument” under Section 32.21(d) of the

Texas Penal Code. However, I disagree with the path taken to reach that result. A plain

meaning for “commercial instrument” exists, so the plurality should not have looked

beyond the statutory language to consider legislative history.

       Section 32.21(d) provides a list of many types of instruments, all of which are
                                                                         Shipp concurrence - 2

writings that provide for a right, privilege, value, or identification in property. At the end

of this list is the phrase “or other commercial instrument.” T EX. P ENAL C ODE A NN. §

32.21(d). The placement of the phrase and use of the word “other” indicates that the list

is not exclusive and the list extends to other unnamed items in the class of writings

termed “commercial instruments.” The Penal Code does not define the phrase

“commercial instrument,” so its meaning must be determined based on principles of

statutory construction.

       When a statutory term is not defined, we attempt to give effect to its plain meaning

or common understanding. Ramos, 303 S.W.3d at 307; Boykin v. State, 818 S.W.2d 782,

785 (Tex. Crim. App. 1991). The term is generally construed in context as the rules of

grammar and common usage allow and utilizing the rules of statutory construction, unless

it has acquired a technical or specialized meaning. T EX. G OV’T C ODE A NN. § 311.011;

Boykin, 818 S.W.2d at 785 n.3. One canon of statutory construction that aids us in

determining plain meaning is the doctrine of ejusdem generis, which the court of appeals

employed: “in interpreting general words which follow an enumeration of particular or

specific things, the meaning of those general words should be confined to things of the

same kind.” Perez v. State, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (en banc); see

Shipp v. State, 292 S.W.3d 267, 274-75 (Tex. App.—Texarkana 2009). Only when the

term is ambiguous or the plain meaning leads to an absurd result do we look to

extratextual factors, including legislative history, to ascertain the meaning. Boykin, 818
                                                                                Shipp concurrence - 3

S.W.2d at 785-86.

        When construing “commercial instrument,” the court of appeals did not have the

benefit of our decision in Ramos v. State, in which this Court defined the common usage

of the term “instrument” as it is used in a different section of the same felony forgery

statute. Ramos, 303 S.W.3d at 307-08. That case is useful to my present analysis.

        The appellant in Ramos was convicted under Section 32.21(e)(3)1 of felony forgery

of a government instrument after selling a forged Social Security card to an undercover

officer. In determining whether the Social Security card was indeed an “instrument,” we

first rejected the argument that the technical meaning of “instrument” was “negotiable

instrument” as found in the Texas Business and Commerce Code. That code is “by and

large, unrelated” to the Penal Code, and since the other items listed in Section 32.21(e)

are not limited to negotiable documents, we determined “that the Legislature intended to

punish as a third-degree felony the forgery of any ‘instrument’ issued by government,

regardless of whether that ‘instrument’ was negotiable.” Id. at 307. We then concluded

that “instrument” was a term in common usage and, relying on the Oxford English

Dictionary, defined it as “a formal legal document whereby a right is created or

confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed,

charter, or record drawn up and executed in technical form, so as to be of legal validity.”


        1
            “An offense under this section is a felony of the third degree if the writing is or purports
to be . . . (3) other instruments issued by a state or national government or by a subdivision of
either, or part of an issue of stock, bonds, or other instruments representing interests in or claims
against another person.” TEX . PENAL CODE ANN . § 32.21(e).
                                                                            Shipp concurrence - 4

Id. This was broad enough to include a Social Security card.

       The term central to this case is “commercial instrument,” rather than “instrument,”

but I do not believe the adjective “commercial” transforms the meaning of “instrument.” 2

Although “instrument” as construed in Ramos is located in a different subsection than

“commercial instrument,” it is logical to assume that the Legislature would have intended

the term to have the same meaning within the same subchapter of the Penal Code.3 If the

Legislature intended “instrument” to convey one meaning in Section 32.21(d) and another

in Section 32.21(e), it would have used two different words to distinguish meanings.

       Instead of transforming the meaning of “instrument,” “commercial” narrows it to

those instruments used in commerce, and the modifier’s significance is also determined

according to a plain meaning analysis. The Oxford English Dictionary defines

“commerce” as “to carry on trade.” 1 O XFORD E NGLISH D ICTIONARY 678 (compact ed.

1971). Similarly, Black’s Law Dictionary identifies “commerce” as “[t]he exchange of

goods and services,” and several terms modified by the adjective “commercial” are


       2
         Like the court of appeals, I do not apply the Texas Business and Commerce Code’s
definition of “instrument,” “a negotiable instrument,” to Section 32.21(d). See Shipp v. State,
292 S.W.3d 267, 271 n.2 (Tex. App.—Texarkana 2009). This is also consistent with our
discussion in Ramos. Ramos, 303 S.W.3d at 307.
       3
         Applying the Ramos definition to Section 32.21(d) is consistent with the approach of the
Model Penal Code, which contains a similar felony forgery statute: “Forgery is a felony of the
third degree if the writing is or purports to be a will, deed, contract, release, commercial
instrument, or other document evidencing, creating, transferring, altering, terminating, or
otherwise affecting legal relations.” MODEL PENAL CODE § 224.1(2) (Proposed Official Draft
1962) (emphasis added).
                                                                          Shipp concurrence - 5

defined as relating to the sale or exchange of goods. B LACK’S L AW D ICTIONARY 214-15

(abr. 7th ed. 2000). Accordingly, “commercial” limits the instruments referred to in

Section 32.21(d) to those involved in the buying, selling, or transfer of goods, services, or

other benefit.

       This definition is supported by Section 32.21(d) itself. The general catch-all at the

end of the precise list reads “or other commercial instrument.” The “other” is of

particular significance because it presumes that the specific items listed previously are

types of “commercial instruments,” and thus, they should all fall within the phrase’s

definition. Indeed, each item can be classified within my definition.

       The dissent would define “other commercial instrument” as documents that create

or discharge an economic obligation or that transfer property, but that definition is too

narrow. The specific items listed in Section 32.21(d) can reach beyond the scope of the

dissent’s characterization. For example, wills and codicils need not be limited to

economic obligations or property transfers. They often cover other issues such as the

custody of a child, the guardianship of elders, and medical directives.

       The receipt here fits within the definition of instrument provided for in Ramos (“a

formal legal document whereby a right is created or confirmed”) as modified by

“commercial.” More than a mere “memorialization of a past transaction” without any

future benefit as the court of appeals suggests, the receipt evidences a contract for the sale
                                                                                 Shipp concurrence - 6

of goods, a legal relationship between the buyer and seller.4 It is a record of a commercial

transaction that confirms the right to possess the items purchased (including the ability to

transport them).5 Consequently, I disagree with the court of appeals. Under the facts of

this case and given the determination by the jury, it is reasonable to characterize the

receipt as a “commercial instrument” under Section 32.21(d).

        My conclusion is supported by Runnels v. State, No. 14-03-00657-CR, 2005 Tex.

App. LEXIS 1381 (Tex. App.—Houston [14th Dist.] Feb. 15, 2005, pet. ref’d) (mem. op.,

not designated for publication) and Graham v. State, No. 14-97-00840-CR, 1999 Tex.

App. LEXIS 3564 (Tex. App.—Houston [14th Dist.] May 13, 1999, pet. ref’d) (not

designated for publication), which I consider to be more pertinent to this analysis than did

the court of appeals. The court of appeals distinguished the football tickets in Runnels

from the receipt because the football tickets, unlike the receipt, had value in that “they

permitted the bearer to gain admittance to the stadium and be entitled to sit in a

designated seat.” Shipp, 292 S.W.3d at 273. Actually, the receipt serves a similar



        4
         See Commonwealth v. Sneddon, 738 A.2d 1026, 1028 (Pa. Super. Ct. 1999) (stating that
“a cash register receipt is a ‘document evidencing . . . or otherwise affecting legal relations’ . . . .
To alter a cash receipt is to alter the legal relationship between a buyer and seller.”).
        5
         The court of appeals stated that “there was no testimony provided here to demonstrate
that a receipt issued by this Wal-Mart store is anything more than the memorialization of a past
transaction, as opposed to the other kinds of things granting or ceding future benefits or rights
listed in Section 32.21(d).” Shipp, 292 S.W.3d at 275. I disagree because the record supports
that the receipt grants the future benefit of allowing the customer to leave the Wal-Mart store
with the merchandise. Also, as the plurality acknowledges, while the possibility of returning
merchandise for cash or credit was not raised at trial, it is common for stores to have return
policies that allow merchandise to be exchanged or refunded with a receipt.
                                                                               Shipp concurrence - 7

function to the football tickets because, if authentic, it would have given Appellant the

right to possess the items and, thus, entitled him to leave the store with the merchandise.

Similarly, I do not see the credit slip in Graham as completely distinguishable from the

receipt. Although the receipt may not be “as good as money” because it cannot be

exchanged for reimbursement without the merchandise also being returned, both the

credit slip and the receipt, if authentic, evidence a commercial relationship between the

buyer and seller that continues to have significance and is honored upon the document’s

presentation.

       Accordingly, because the term “commercial instrument” is not ambiguous and its

plain meaning does not lead to absurd results, it is unnecessary to consult the statute’s

legislative history or other extratextual sources. The plurality was incorrect for doing so.6

       I also believe that the plurality opinion is deficient for not addressing the portion of

the court of appeals’s opinion referring to the jury charge. Even if, as the plurality

suggests, the court of appeals “gratuitously opined” about the definition of “commercial

instrument” provided by the trial court in the charge, the plurality opinion should have

addressed that portion of the lower court’s opinion. I hope that my discussion of such is

instructive to appellate courts in the future.

       In assessing jury charge errors, we first must determine whether error exists. If

error is present, we then evaluate whether the error caused harm. Hutch v. State, 922

       6
        Since the lead opinion is a plurality, I am not sure that a majority of this court agrees that
it was necessary to look to legislative history in this case.
                                                                              Shipp concurrence - 8

S.W.2d 166, 170-71 (Tex. Crim. App. 1996) (citing Almanza v. State, 686 S.W.2d 157

(Tex. Crim. App. 1985) (op. on reh’g)). The standard of review for errors in the jury

charge depends upon whether the error was preserved. Error preserved by objection will

require reversal if there is any harm, but if not preserved, egregious harm is required. Id.

at 171. I disagree with the court of appeals’s holding that the jury charge was erroneous.

       A proper jury charge guides the jury in answering the questions presented. Id. at

170. This requires the charge to define any legal term or phrase that the jury needs to

properly resolve the issues. No special instructions are necessarily required for terms or

phrases that have neither been statutorily defined nor acquired a technical meaning.

Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000). But simply because a trial

court is not required to give an instruction regarding a term, that does not mean the court

errs by doing so. Lockhart v. State, 1 S.W.2d 894, 895 (Tex. Crim. App. 1927) (“In our

opinion it is not necessary to give any definition of the terms used in the statute, but, one

having been attempted, we think it not erroneous.”).7 The trial court has broad discretion

in submitting proper definitions and explanatory phrases to aid the jury. Macias v. State,

959 S.W.2d 332, 336 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). Nonetheless,

because the jury is the ultimate trier of fact, the charge may not advise the jury on the


       7
         This is distinguishable from the situation in which the trial court does not define a term
in the jury charge: “It is not error, in a prosecution for violating a statute, to refuse to define a
word used in the statute, when such word is used in its ordinary sense, and it is easily
comprehended by everyone.” Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983); see
Sanders v. State, 605 S.W.2d 612, 615 (Tex. Crim. App. 1980); Hogan v. State, 496 S.W.2d 594,
599 (Tex. Crim. App. 1973).
                                                                         Shipp concurrence - 9

specific application of the facts to the law such that it comments on the weight of the

evidence. Watts v. State, 99 S.W.3d 604, 609-13 (Tex. Crim. App. 2003).

       Because “commercial instrument” has neither a statutory definition nor a technical

meaning, the trial court had broad discretion when defining the term in the jury charge.

The jury charge in this case defined “commercial instrument” as “anything reduced to

writing which is executed or delivered as evidence of an act or agreement, and said

writing relates to or is connected with trade, and traffic, or commerce in general, or is

occupied with business and commerce.” Shipp, 292 S.W.3d at 270. While the definition

is broad, it comports with the plain meaning discussed previously. In addition, the charge

is neutral; that is, it does not indicate how the facts should be applied to the phrase

defined, and thus, it does not comprise a comment on the weight of the evidence.

       Therefore, even though the trial court was not obligated to give a definition of

“commercial instrument,” it did not abuse its discretion in presenting this definition in its

charge to the jury. Nor was the definition inaccurate, misleading, or a comment on the

weight of the evidence. I also find that the jury’s determination of guilt under Section

32.21(d) is reasonable, given the facts of this case and the definition of “commercial

instrument” provided in the court’s charge. I neither claim this to be the proper definition

of “commercial instrument” nor encourage courts to use this definition in the future, but

in this particular case, it did not result in trial error.

       For these reasons, I respectfully concur.
                                Shipp concurrence - 10

                          Meyers, J.

Filed: February 2, 2011

Publish
