Affirmed and Memorandum Opinion filed October 10, 2019.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-18-00612-CR

                           DOMINGO TAJIBOY, Appellant

                                               V.
                          THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 4
                            Harris County, Texas
                         Trial Court Cause No. 5658

                     MEMORANDUM OPINION
       Appellant Domingo Tajiboy was convicted in a Harris County municipal
court for failure to maintain financial responsibility while operating a motor
vehicle. He appealed to the county criminal court at law, which affirmed his
conviction.1 In this further appeal, appellant contends that the county criminal
court at law erred in affirming the municipal court’s judgment for three reasons:

       1
         A defendant has the right of appeal from a conviction in a municipal court of record to a
county criminal court at law. See Tex. Gov’t Code § 30.00014(a).
(1) the State failed to negate statutory exceptions to the offense in the complaint,
and the complaint is therefore void; (2) the State failed to negate statutory
exceptions to the offense in its proof at trial, and appellant was therefore entitled to
a directed verdict of not guilty; and (3) the municipal court erred in failing to
include statutory exceptions to the offense in the jury charge.2

       We conclude that there is no error as alleged by appellant, and we affirm the
county criminal court at law’s judgment.

                                         Background

       A police officer stopped appellant for running a red light. The officer asked
appellant for his driver’s license and proof of financial responsibility. The officer
initially asked in English but because appellant “wasn’t really sure what proof of
financial responsibility” was, the officer “tried his best in Spanish to say in --
insurance in Spanish which is: Aseguranza.” The police officer believed that
appellant understood what the officer had asked.                  According to the officer,
appellant produced “his ID” but, as regarding proof of financial responsibility,
“[appellant] said he didn’t have it” or shook his head.

       Appellant was cited and later charged by misdemeanor complaint for failure
to maintain financial responsibility while operating a motor vehicle. Appellant
pleaded not guilty to the charge, and the State tried the case to a jury in municipal
court. The police officer who conducted the traffic stop was the only witness. The
jury found appellant guilty and assessed a $225 fine. The municipal court denied
appellant’s motion for new trial, and he appealed to County Criminal Court at Law


       2
          The county criminal court at law addressed the same issues, albeit in a different order.
Appellant preserved these issues for review by raising them in a timely motion for new trial. See
Tex. Gov’t Code § 30.00014(b) (the county criminal court at law determines the appeal based on
the errors alleged in the appellant’s motion for new trial).

                                                2
No. 4. The county criminal court at law affirmed the municipal court’s judgment,
and appellant now appeals his conviction to this court.

                                       Analysis

A.    Negating statutory exceptions

      In his first issue, appellant contends that the State was required but failed to
negate statutory exceptions to the offense in the complaint. In his second issue,
appellant asserts that the State failed to prove beyond a reasonable doubt at trial
that appellant’s conduct did not fall within a statutory exception to the offense.
According to appellant, both deficiencies entitle him to a judgment of acquittal.
Because both issues concern the State’s purported burden to negate statutory
exceptions to the offense, we address them together.

      The Penal Code provides that when a statutory exception to a criminal
offense exists, the State must (1) negate the existence of the exception in the
accusation charging commission of the offense and (2) prove beyond a reasonable
doubt that the defendant or defendant’s conduct does not fall within the exception.
See Tex. Penal Code § 2.02(b); Baumgart v. State, 512 S.W.3d 335, 338 (Tex.
Crim. App. 2017). Failing to negate an exception is the same as failing to allege an
essential element of the offense and renders the charging instrument void. See
McElroy v. State, 720 S.W.2d 490, 492 (Tex. Crim. App. 1986). If the State fails
to prove an essential element beyond a reasonable doubt, then the defendant is
entitled to an acquittal. See Lewis v. State, 852 S.W.2d 667, 670 (Tex. App.—
Houston [14th Dist.] 1993, no pet.).

      In this case, the State charged appellant with violating Transportation Code
section 601.051, which provides that a person “may not operate a motor vehicle in
this state unless financial responsibility is established for that vehicle.”     Tex.


                                          3
Transp. Code § 601.051; see also Arias v. State, 477 S.W.3d 925, 928 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). “Financial responsibility” is defined as
“the ability to respond in damages for liability for an accident that: (A) occurs
after the effective date of the document evidencing the establishment of the
financial responsibility; and (B) arises out of the ownership, maintenance, or use of
a motor vehicle.” Tex. Transp. Code § 601.002(3). A person may establish
financial responsibility through: (1) a motor vehicle liability insurance policy;
(2) a surety bond; (3) a deposit; or (4) self-insurance. Id. § 601.051.3 A motor
vehicle operator is required, upon request by a peace officer, to exhibit proof of
financial responsibility. Id. § 601.053(a). An operator who does not exhibit proof
upon request is presumed to have operated the vehicle in violation of the law. Id.
§ 601.053(b). A violation of section 601.051 is a criminal misdemeanor offense
punishable by a fine. See id. § 601.191; Arias, 477 S.W.3d at 928. If the operator
later presents satisfactory proof that financial responsibility had been established
for the vehicle at the time the citation was issued, the court must dismiss the
prosecution. See Tex. Transp. Code § 601.193.

      Transportation Code section 601.052, titled “Exceptions to Financial
Responsibility Requirement,” exempts certain vehicles from section 601.051’s
requirement of maintaining financial responsibility. At the time of appellant’s
trial, section 601.051 did not apply to:

      (1) the operation of a motor vehicle that:
           (A) is a former military vehicle or is at least 25 years old;
           (B) is used only for exhibitions, club activities, parades, and other
           functions of public interest and not for regular transportation; and
           (C) for which the owner files with the department an affidavit,

      3
         “Compliance typically involves the purchase of an automobile liability insurance
policy.” Arias, 477 S.W.3d at 928.

                                           4
            signed by the owner, stating that the vehicle is a collector’s item
            and used only as described by Paragraph (B);
       (2) the operation of a neighborhood electric vehicle or a golf cart that
       is operated only as authorized by Section 551.304 or 551.403; or
       (3) a volunteer fire department for the operation of a motor vehicle the
       title of which is held in the name of a volunteer fire department.

Tex. Transp. Code § 601.052(a) (West 2013).4

       As the county criminal court at law stated, “[a]ppellant’s argument is
straightforward: section 601.052 is entitled as an exception, therefore each of the
matters listed under the section constitute an exception to the offense,” which the
State was required to negate in the charging instrument and at trial.                   While
appellant’s framing of the issue is facially plausible, precedent from the Court of
Criminal Appeals forecloses his argument.

       In Baumgart, the Court of Criminal Appeals addressed this issue head on.
See 512 S.W.3d at 338. The court began its analysis with section 2.02 of the Penal
Code, which provides, “An exception to an offense in this code is so labeled by the
phrase: ‘It is an exception to the application of . . . . ’” Tex. Penal Code § 2.02(a).
The Baumgart court held that “[i]n saying that an exception is ‘labeled’ with a
particular phrase, and in placing that particular phrase in quotation marks, the
legislature has decreed that an exception exists only when that exact phrase is
used.” Baumgart, 512 S.W.3d at 344 (emphasis added). In all other instances,
when a statute may create exceptions to an offense but not use the exact wording
outlined in Penal Code section 2.02(a), then it is a defensive matter.5 Id. The State

       4
        The legislature amended section 601.052 in the most recent legislative session. See Act
of May 24, 2019, 86th R.S., ch. 1233, § 39, 2019 Tex. Sess. Law Serv. (amending Tex. Transp.
Code § 601.052(a)).
       5
          Baumgart expressly held that Penal Code section 2.02(a)’s labeling requirement applies
to statutes found both within and outside of the Penal Code. See Baumgart, 512 S.W.3d at 347-
48.

                                               5
need not negate defenses in the charging instrument. Id. Nor does the State carry
the initial burden of disproving a defense at trial. See Zuliani v. State, 97 S.W.3d
589, 594 (Tex. Crim. App. 2003); Arias, 477 S.W.3d at 928.

       So the question is whether Transportation Code section 601.052’s
“exceptions” are truly exceptions to the offense of failing to maintain financial
responsibility or whether, instead, they constitute defensive matters?                  Section
601.052 begins, “Section 601.051 does not apply to . . . ” Tex. Transp. Code
§ 601.052(a). The statute does not contain the operative language from Penal Code
section 2.02—“It is an exception to the application of . . . . ”—and Baumgart
instructs that, in the absence of these “magic words,” we must conclude that
section 601.052(a) allows merely for potential defenses to the offense of failing of
maintain financial responsibility. See Baumgart, 512 S.W.3d at 343-44. Thus, the
State was not required to negate the applicability of any part of Transportation
Code section 601.052(a) in the charging instrument. See id. at 344. Further,
because the provisions in section 601.052(a) are defensive matters, it was
appellant’s initial burden to raise any applicable defense at trial. See Arias, 477
S.W.3d at 928.         Nothing in the record establishes that appellant did so.6
Accordingly, the burden never shifted to the State to negate any defensive matter
in Transportation Code section 601.052.

       For these reasons, we overrule appellant’s first and second issues.




       6
           Appellant’s attorney questioned the police officer whether he was familiar with, or
asked for, any other type of document that would also comply with the financial responsibility
requirement, to which the officer answered in the negative. See Tex. Transp. Code § 601.051
(listing the means by which a person may establish financial responsibility for a motor vehicle).
Appellant’s cross-examination raised only the possibility of compliance under section 601.051
and not any defensive issue under Transportation Code section 601.052.

                                               6
B.        Jury instruction

          In his third issue, appellant argues that the municipal court erred in failing to
instruct the jury on the “exceptions” listed in Transportation Code section
601.052.7 As explained above, section 601.052 presents only defensive matters,
not statutory exceptions to the offense of failing to maintain financial
responsibility. A defendant is entitled to a jury instruction on a defensive issue
only if there is some evidence from any source that, if believed by the jury, would
support a rational finding that the defense is true. Shaw v. State, 243 S.W.3d 647,
657-58 (Tex. Crim. App. 2007). As already stated, there is no evidence in this
record raising a defensive issue under section 601.052, and thus the municipal
court did not err in failing to instruct the jury on any of the defenses listed in
section 601.052.

          We overrule appellant’s third issue.

                                            Conclusion

          Having overruled appellant’s three issues, we affirm the county criminal
court at law’s judgment and appellant’s conviction.




                                               /s/       Kevin Jewell
                                                         Justice


Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).



          7
              Appellant made a timely request for a jury instruction on the issue, which the judge
denied.

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