                                                                                       PD-1595-14
                                                                     COURT OF CRIMINAL APPEALS
April 24, 2015                                                                        AUSTIN, TEXAS
                                                                     Transmitted 4/24/2015 4:10:48 PM
                                                                       Accepted 4/24/2015 4:24:05 PM
                                                                                       ABEL ACOSTA

      Nos. PD-1595-14 and PD-1596-14                                                           CLERK

___________________________________________________

       In the Court of Criminal Appeals of Texas
___________________________________________________

                 Roger Liverman and Aaron Liverman
                          Appellants / Respondents

                                        v.

                 The State of Texas
                   Appellee / Petitioner
___________________________________________________

                   On State’s Petition for Discretionary Review
                   Court of Appeals of Texas, Second District
                         Case No. No. 02-13-00176-CR
          362nd Judicial District Court, Denton County
          Cause No. F-2012-0136-D and F-2012-0137-D
___________________________________________________

          Appellant’s Brief on the Merits
___________________________________________________


                                             Matthew J. Kita
                                             Texas Bar No. 24050883
                                             P.O. Box 5119
                                             Dallas, Texas 75208
                                             (214) 699-1863 (phone)
                                             (214) 347-7221 (facsimile)
                                             matt@mattkita.com
                                             Counsel For Appellants
                     Identity of Parties and Counsel


Appellants/Respondents:      Roger Liverman and Aaron Liverman

Appellate Counsel:           Matthew J. Kita
                             P.O. Box 5119
                             Dallas, Texas 75208

Trial Counsel:               Lea Ann Breading
                             121 West Hickory Street, Suite 133
                             Denton, Texas 76209

                             Jerry Cobb
                             P.O. Box 1399
                             Denton, Texas 76202


Appellee/Petitioner:         The State of Texas

Appellate Counsel:           Lara Tomlin
                             Denton County District Attorney’s Office
                             1450 East McKinney Avenue
                             Denton, Texas 76209

Trial Counsel:               Rick Daniel
                             Lindsey Sheguit
                             Denton County District Attorney’s Office
                             1450 East McKinney Avenue
                             Denton, Texas 76209




                                     -i-
                                           Table of Contents

Identity of Parties and Counsel ................................................................................. i	  

Index of Authorities ................................................................................................ iii	  

Restatement of Facts ................................................................................................ 1	  

Summary of the Argument ....................................................................................... 4	  

Argument ................................................................................................................. 5	  

I.	   	   The court of appeals correctly concluded that the State’s evidence was
            legally insufficient to support Appellants’ convictions. ................................. 5	  

         A.	      The State offered no evidence to support its burden to prove that the
                   county clerk “executed” Appellants’ mechanics-lien affidavits. ......... 7	  

                   1.	      The county clerk’s testimony at trial reflects that she does not
                             “execute” documents, under the plain meaning of the word. ... 7	  

                   2.	      As a matter of law, a “lien” is not something that a county clerk
                             can “execute.” .......................................................................... 9	  

         B.	      The court of appeals’ interpretation is consistent with legislative
                   history. ............................................................................................... 12	  

                   1.	      The Legislature’s addition of the word “execute” to section
                             32.46(a)(1) in 1973 is irrelevant. ............................................... 12	  

                   2.	      Subsections (a)(1) and (a)(2) were passed for entirely different
                             purposes and therefore no “overlap” is permitted. ................. 13	  

         C.	      This Court places primary emphasis on the “statutory verb” when
                   determining the criminal act at issue.................................................. 18	  

II.	   	   	   The State’s incorrectly suggests that the court of appeals’ opinion has
                  decriminalized the “fraudulent use of liens.” .............................................. 22	  

Conclusion and Prayer ........................................................................................... 27


                                                             - ii -
                                   Index of Authorities

Cases	  

Avery v. State,
  359 S.W.3d 230 (Tex. Crim. App. 2012) ...................................................... 14, 15

Azeez v. State,
   248 S.W.3d 182 (Tex. Crim. App. 2008) .......................................................... 26

Byrd v. State,
   336 S.W.3d 242 (Tex. Crim. App. 2011) ........................................................... 21

Cheney v. State,
  755 S.W.2d 123 (Tex. Crim. App. 1988) ........................................................... 25

Cont’l Radio Co. v. Cont’l Bank & Trust Co.,
  369 S.W.2d 359 (Tex. Civ. App.—Houston 1963, writ ref’d n.r.e.) ............. 11, 12

Ex parte Roemer,
   215 S.W.3d 887 (Tex. Crim. App. 2007) ........................................................... 24

Ex parte Smith,
   185 S.W.3d 887 (Tex. Crim. App.2006)............................................................ 26

First Nat’l Bank in Dallas v. Whirlpool Corp.,
   517 S.W.2d 262 (Tex. 1974) .............................................................................. 12

Huffman v. State,
  267 S.W.3d 902 (Tex. Crim. App. 2008) .......................................................... 19

Jefferson v. State,
   189 S.W.3d 305 (Tex. Crim. App. 2006) ........................................................... 19

McLarty v. State,
  302 S.W.2d 420 (Tex. Crim. App. 1957) ........................................................... 13

Mills v. State,
   722 S.W.2d 411 (Tex. Crim. App. 1986) ........................................................... 25



                                                     - iii -
Moore v. Carey Bros. Oil Co.,
  269 S.W. 75 (Tex. 1925) .................................................................................... 11

Ngo v. State.
  175 S.W.3d 738 (Tex. Crim. App. 2005) ........................................................... 19

Purdin v. Jenkins,
   337 S.W.2d 418 (Tex. Civ. App.—Dallas 1960, no writ) ................................... 11

State v. Wiesman,
   269 S.W.3d 769 (Tex. App.—Austin 2008, no pet.) ................................... 20, 21

Strang v. Pray,
   89 Tex. 525, 35 S.W. 1054 (1896). ................................................................ 11, 12

Tex. Wood Mill Cabinets, Inc. v. Butter,
   117 S.W.3d 98 (Tex. App.—Tyler 2003, no pet.) ............................................. 10

United States v. Gipson,
  553 F.2d 453 (5th Cir. 1977) .............................................................................. 19



Statutes	  

Tex. Code Crim. Proc. art. 4.05 ............................................................................. 26

Tex. Gov’t Code § 311.026 .................................................................................... 25

Tex. Gov’t Code § 311.011 ....................................................................................... 7

Tex. Health & Safety Code § 481.129 .................................................................... 14

Tex. Penal Code § 32.46 ..................................................................................passim

Tex. Penal Code § 32.49 ........................................................................................ 23

Tex. Prop. Code § 53.051 ......................................................................................... 9

Tex. Prop. Code § 53.052......................................................................................... 9



                                                       - iv -
Tex. Prop. Code § 53.054 ......................................................................................... 9

Tex. Prop. Code § 53.056 ......................................................................................... 9

Tex. Prop. Code § 53.254 ....................................................................................... 10



Other Authorities	  

53 Tex. Jur.2d, Statutes § 186 ................................................................................ 25

Black’s Law Dictionary (9th ed. 2009)..................................................................... 7



Constitutional Provisions	  

U.S. Const. art. I, § 9, cl.3 ...................................................................................... 24

Tex. Const. art I, § 16............................................................................................. 24

Tex. Const. art. 16, § 37 ......................................................................................... 11




                                                         -v-
                             Restatement of Facts

          This appeal arises out of a business dispute between Appellants Roger and

Aaron Liverman and Roger’s daughter/Aaron’s sister, Complainant Katheryn

Hall.1 In January 2007, Hall and her then-husband purchased a house in Krum,

Texas.2 After purchasing the home, Hall had the house “completely gutted” and

began to remodel it.3

          At the time, Hall owned a ceramic-tile-installation company called K.A.M.P.

Tile, Incorporated.4 In fall 2007, she hired Roger and Aaron to work for her

company,5 and offered to let them live on the property in Krum, Texas.6 Roger’s

wife Mary (Hall’s mother) initially stayed in a camper-trailer on the property, and

then moved into the house after the remodel was completed.7




1
 The indictment identified Complainant as Katheryn Payne. C.R. 5–7. At trial, Complainant
testified that she changed her name to Katheryn Hall. 3 R.R. 25:14–18.
2
    3 R.R. 29:1–14.
3
    3 R.R. 29:22–30:10.
4
    3 R.R. 28:21–24.
5
    3 R.R. 34:23–35:13.
6
    3 R.R. 36:3–17.
7
    3 R.R. 37:21–38:15.



                                             -1-
          According to Hall’s testimony at trial, the remodel was about 65% complete

before she hired Roger and Aaron.8 With regard to the completion of the

remodeling, Hall admitted that Roger and Aaron assisted with the installation of

the HVAC system,9 performed tape-and-bed work,10 painted the kitchen and

bathroom,11 installed French doors and light fixtures,12 put a roof on the chicken

coop,13 and installed appliances.14 Although Hall paid Roger and Aaron for their

work for K.A.M.P. Tile, she admitted that she did not pay them for any of their

above-referenced work on the remodel.15

          Hall further alleged that Roger eventually asked if he and Aaron could share

equally in K.A.M.P. Tile’s profits.16 Believing that Roger and Aaron were “trying

to take over my company,”17 Hall fired both of them (as well as her mother) in June



8
    3 R.R. 49:18–19.
9
    3 R.R. 51:13–16.
10
     3 R.R. 54:23–55:3.
11
     3 R.R. 55:14–16.
12
     3 R.R. 55:8–14; 57:16–22.
13
     3 R.R 59:19–60:2.
14
     3 R.R 69:25–70:24.
15
     3 R.R. 71:19–22.
16
     3 R.R. 41:7–9.
17
     3 R.R. 40:19–20.



                                           -2-
2008.18 The following month, Hall filed an eviction proceeding against Roger and

her mother,19 which forced them out of the newly remodeled home.

          After Hall filed her eviction proceeding, Roger and Aaron filed mechanics’

liens on the property.20 In response, Hall filed a civil lawsuit against Roger and

Aaron to have the lien removed,21 and also filed a complaint with the Denton

County District Attorney.22 Hall ultimately prevailed in the civil lawsuit.23 Shortly

thereafter, the State indicted Roger and Aaron for “securing the execution of a

document by deception.”24 After a bench trial, the court found Roger and Aaron

guilty of the charged offense.25 Roger was sentenced to ten years in prison

(suspended for ten years), fined $5,000, and was ordered to pay $17,500 in

restitution as a condition of his community supervision; Aaron was sentenced to

two years in prison, suspended for two years.26


18
     3 R.R. 41:15–18; 43:10–14.
19
     3 R.R 45:
20
     5 R.R. Ex. 1.
21
     3 R.R. 47:6–8.
22
     3 R.R. 66:17–20; 67:3–9.
23
     3 R.R. 96:13–17; 203:16–20.
24
     C.R. 5–7; 3 R.R. 200:1–16.
25
     C.R. 65–68.
26
     C.R. 65–68.



                                           -3-
                        Summary of the Argument

      The court of appeals correctly concluded that the evidence at trial was

legally insufficient to convict Appellants of “Securing the Execution of a

Document by Deception” under section 32.46(a)(1) of the Texas Penal Code

because the State failed to offer any evidence that the Denton County Clerk

“signed or executed” a document affecting property. All of the arguments

advanced by the State in support of a reversal of that decision fail as a matter of law

because:

      —      The State’s arguments are premised on a fundamental
             misunderstanding of the plain meaning of the verb “to execute,” as
             well as the manner and means by which mechanics’ liens are made
             effective;
      —      The legislative history reflects that the Legislature never intended to
             criminalize Appellants’ alleged acts in section 32.46(a)(1);
      —      The State’s arguments directly contradict this Court’s well-
             established precedents for statutory construction; and
      —      Another plainly-applicable statute already criminalizes exactly the
             same conduct that Appellants are alleged to have committed, and was
             in effect at the time Appellants were indicted.

Accordingly, this Court should affirm the judgment of the court of appeals, and

grant Appellants all other relief in law and equity to which they have shown

themselves to be justly entitled.




                                          -4-
                                      Argument

I.        The court of appeals correctly concluded that the State’s evidence was
          legally insufficient to support Appellants’ convictions.

          As noted above, Appellants were indicted for violating section 32.46(a)(1) of

the Texas Penal Code. To obtain a conviction, the State was required to prove that

Appellants “caused another to sign or execute a document affecting property.” In

the indictment, the State specifically alleged:

          [APPELLANTS]…on or about the 22nd day of July 2008…did then
          and there, with intent to harm or defraud Katheryn Payne, by
          deception, to wit: misrepresent that [Appellants] performed
          construction, remodeling and landscaping work to property owned by
          Katheryn Payne when, in fact, defendant had not performed such
          work, cause Cynthia Mitchell to sign or execute a document affecting
          the property or service of Katheryn Payne….27

The two-page document at issue, titled “Claim of Lien” was attached to the

indictment.28 A cursory review of this document reveals that Mitchell (the Denton

County Clerk)29 did not “sign” it.30 Accordingly, this entire appeal ultimately turns

on whether Mitchell’s actions can be accurately described as “executing”

Appellants’ affidavit.


27
     C.R. 6.
28
     C.R. 7–8.
29
     3 R.R. 17:25–18:4.
30
     C.R. 7.



                                            -5-
          Relying primarily on this Court’s 1977 decision in Morter v. State, the court

of appeals examined other language within section 32.46 to determine the exact

nature of the conduct that the Legislature intended to criminalize.31 After noting

that subsection (a)(2) of the same statute addressed “causing a public servant to

‘file or record’ a fraudulent document,” the court of appeals concluded:

          In oral arguments and in its brief, the State used the terms “filing and
          recording” and “sign or execute” interchangeably. The legislature,
          however, did not. Because the legislature chose to use language
          differentiating “sign or execute” from “file or record” within the
          same statue, we hold that the plain meaning of the words “sign or
          execute” in subsection 32.46(a)(1) does not include the action of a
          court clerk filing and recording a document. Although the State
          presented evidence that the county clerk in this case filed and
          recorded the affidavit in question, it provided no evidence that the
          county clerk otherwise signed or executed it as contemplated by Texas
          Penal Code section 32.46(a)(1).32

Accordingly, the court of appeals reversed Appellants’ convictions, and entered a

judgment of acquittal.33 Because a contrary holding would require this Court to

ignore the plain meaning of the statute, practical experience, and legislative intent,

and would violate Appellants’ constitutional right to due process, Appellants

respectfully request this Court to affirm the court of appeals’ holding.


31
     Slip Op., p. 5.
32
     Slip Op., p. 6.
33
     Slip Op., p. 7.



                                            -6-
A.        The State offered no evidence to support its burden to prove that the
          county clerk “executed” Appellants’ mechanics-lien affidavits.

1.        The county clerk’s testimony at trial reflects that she does not
          “execute” documents, under the plain meaning of the word.

          Because the Texas Penal Code does not define the word “execute” for

purposes of section 32.46(a)(1), the Code Construction Act requires this Court to

adopt the word’s common usage.34 Black’s Law Dictionary defines “execute” as

follows:

          1. To perform or complete (a contract or duty) <once the contract was
          fully executed, the parties owed no further contractual duties to each
          other>. 2. To change (as a legal interest) from one form to another
          <the shifting use was executed into a valid legal estate>. 3. To make (a
          legal document) valid by signing; to bring (a legal document) into its
          final, legally enforceable form <each party executed the contract
          without a signature witness>. …5. To enforce and collect on (a money
          judgment) < Williams asked the sheriff to execute on the judgment>.35

Notably, Mitchell admitted at trial that she did not do any of these things. Instead,

Mitchell merely testified that she and her staff “file documents that affect

property”36 in the following manner:

          Q.     If somebody wishes to file a mechanic’s lien on a certain
                 property, how would they just generally go about doing that?



34
     Tex. Gov’t Code § 311.011.
35
     Black’s Law Dictionary (9th ed. 2009).
36
     3 R.R. 18:15–20.



                                              -7-
          A.     They would bring in a document, and if the document meets the
                 recording requirements as prescribed by law, then the clerk
                 takes the document, enters a certain amount of information into
                 the computer system, takes payment for that, and records the
                 document.
                                            ***
          Q.     If you don’t know that a document is blatantly false or
                 fraudulent, what would you do with that document?
          A.     We would record it.37

In other words, Mitchell’s actions have no relationship to the ultimate validity of

the allegations contained in underlying document; the scope of her obligations was

merely to record and index the document that Appellants executed for potential

third parties who might perform a title search.38 And although Mitchell agreed with

the prosecutor when asked if she and her staff “executed” documents when

performing their tasks,39 for the reasons discussed above, Appellants respectfully

submit that Mitchell’s ipse dixit is insufficient to alter the word’s plain meaning.

Because the State offered no other evidence to establish that Mitchell “executed”

anything, the court of appeals’ holding should be affirmed.




37
     3 R.R. 20:6–8.
38
  3 R.R. 23:16–20 (“Of somebody wanted to sell the property and then a title company or
somebody came to look, they would see it and they would find it and it would affect the
property”).
39
     3 R.R. 19:5–8; 23:8–12.



                                             -8-
2.        As a matter of law, a “lien” is not something that a county clerk can
          “execute.”

          In an attempt to shoehorn the evidence at trial into the language it used in its

indictment, the State argues that Mitchell’s actions are consistent with a (non-

legal) dictionary definition of “execute” because (according to the State) “a

statutory lien is only valid and executed once it is filed and recorded.”40 This is

false. To support this argument, however, the State directs this Court to section

53.052 of the Texas Property Code,41 which is curious, given that it stands for

exactly the opposite proposition:

          The county clerk shall record the affidavit in records kept for that
          purpose and shall index and cross-index the affidavit in the names of
          the claimant, the original contractor, and the owner. Failure of the
          county clerk to properly record or index a filed affidavit does not
          invalidate the lien.42

In fact, nothing in the Property Code even remotely suggests that the county clerk

plays any role in the validity of a statutory lien. Instead, it provides that a lien’s

validity turns on the compliance of the person seeking to perfect it.43


40
     State’s Br., p. 23.
41
     State’s Br., pp. 22–23.
42
     Tex. Prop. Code § 53.052 (emphasis added).
43
  Tex. Prop. Code § 53.051. See also Tex. Prop. Code §§ 53.054, .056 (After the person seeking
perfection of a lien files an affidavit with the county clerk, he or she must also send a copy to the
owner of the property and/or original contractor).



                                                 -9-
          The statutory text is consistent with the well-accepted understanding of

what a “lien” actually is. Contrary to the State’s suggestion, a “lien” is not a

tangible document for a clerk to “execute.” By definition, it is “a legal right or

interest that a creditor has in another’s property.”44 Although documents may

serve as evidence of the claim, they do not constitute the lien itself, and the only

reason for recording documents relating to a claim of lien is to provide constructive

notice to—and allow enforcement against—potential third-party purchasers of the

property.45 Understandably, therefore, a thorough search of Texas statutory and

case law does not reveal a single instance in which the Legislature or any court has

ever used the verb “execute” in connection with a county clerk’s actions vis-à-vis a

claim of lien. Instead, all legal authorities recognize that the property owner and the

purported lienholder “execute” the lien, and the duties of the county clerk are

relegated to filing and/or recording documents that reflect its execution.46

          Finally, the provisions of the Penal and Property Code are consistent with

the provisions of the Texas Constitution that the State attempts to distinguish in its


44
     Black’s Law Dictionary (9th Ed. 2009).
45
     Tex. Wood Mill Cabinets, Inc. v. Butter, 117 S.W.3d 98, 105 (Tex. App.—Tyler 2003, no pet.).
46
  See, e.g., Tex. Prop. Code § 53.254 (“to fix a lien on a homestead, the person who is to furnish
material or perform labor and the owner must execute a written contract setting forth the terms of the
agreement” and “the county clerk shall record the contract in records kept for that purpose”).



                                                - 10 -
brief.47 As the State acknowledges, the right to assert a mechanics’ lien is conferred

by the Texas Constitution,48 and for nearly 120 years, Texas courts have held that

such a lien is self-executing:

          The lien does not depend upon the statute. The Legislature has no
          power to affix to that lien conditions of forfeiture. The Legislature is
          commanded by the Constitution simply to provide for the ‘speedy and
          efficient enforcement’ of the lien. No record at any time is necessary
          to give the lien. The filing and recording of the contract or account, as
          provided by the statute, is not necessary in any case arising between
          the original contractor and the original owner. The provisions of the
          statute requiring the claim to be recorded were intended to protect the
          persons having the liens against subsequent purchasers, mortgagees,
          and lienholders in good faith without notice, by furnishing
          constructive notice of the existence of the lien.49

This principle is further illustrated by the fact that the agreements that give rise to

such liens do not even have to be in writing.50 For obvious reasons, a county clerk

cannot record an oral lien, yet Texas courts have deemed them valid and

enforceable for more than half a century.

          In sum, Appellants’ recording of an affidavit in support of a claim of lien with

the county clerk is entirely unrelated to its “finality, validity, or enforceability”

47
     State’s Br., p. 21.
48
     Tex. Const. art. 16, § 37.
49
  Cont’l Radio Co. v. Cont’l Bank & Trust Co., 369 S.W.2d 359, 361 (Tex. Civ. App.—Houston
1963, writ ref’d n.r.e.) (citing Moore v. Carey Bros. Oil Co., 269 S.W. 75, 77 (Tex. 1925); Strang v.
Pray, 89 Tex. 525, 528, 35 S.W. 1054, 1056 (1896).
50
     See, e.g., Purdin v. Jenkins, 337 S.W.2d 418, 421 (Tex. Civ. App.—Dallas 1960, no writ).



                                                 - 11 -
because it did not “change a legal interest from one form to another.”51 As a matter

of law therefore, the State failed to prove that the county clerk “executed” a

document that affected the Hall’s property. For this additional reason, the court of

appeals’ opinion and judgment should be affirmed.

B.        The court of appeals’ interpretation is consistent with legislative
          history.

          The State devotes the majority of its briefing to its argument that “It was the

Legislature’s intent under section 32.46(a)(1) to criminalize the act of causing a

court clerk to file and record a fraudulent lien.”52 In support of this endeavor, it

raises five sub-arguments and four sub-sub-arguments, none of which have merit.

1.        The Legislature’s addition of the word “execute” to section 32.46(a)(1)
          in 1973 is irrelevant.

          The State claims that this Court should be particularly impressed by the

Legislature’s decision to add the word “execute” to the section 32.46(a)(1) when it

overhauled the Penal Code in 1973, and replaced former article 1000 with the

present version of section 32.46(a)(1).53 For the reasons discussed above, this

addition is irrelevant because, as a matter of law, county clerks do not “execute”

51
 First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 267 (Tex. 1974); Cont’l Radio
Co., 369 S.W.2d at 361; Strang, 89 Tex. at 529, 35 S.W. at 1056.
52
     State’s Br., pp. 5–21.
53
     State’s Br., pp. 5–9.



                                             - 12 -
liens. Moreover, the State’s admission that this former article “most closely

resembles” the current law further supports the court of appeals’ decision. As this

Court noted in its 1957 opinion in McLarty v. State, former article 1000 criminalized

“the act of intentionally defrauding another by a false reading, false interpretation; or

misrepresentation of the contents of (A) any pecuniary obligation or (B) any

instrument in writing which would in any manner affect property that would (a)

induce anyone to sign such instrument as his act or (b) give assent to it in such

manner as would make it his act, if not done under mistake.”54 Even if this Court

were willing to consider the text of a statute that has been repealed for over 40

years in its analysis of the proper interpretation of different words, the evidence in

the present case would not even support a conviction under the prior version of the

statute. This argument fails.

2.        Subsections (a)(1) and (a)(2) were passed for entirely different
          purposes and therefore no “overlap” is permitted.

          The State then claims that “any overlap” between the “signed or executed”

requirement in section 32.46(a)(1) and the “filed or recorded” requirement in

section 32.46(a)(2) is “allowable.”55 To support this argument, the State relies on



54
     McLarty v. State, 302 S.W.2d 420, 422 (Tex. Crim. App. 1957) (emphasis added).
55
     State’s Br., p. 9–14.



                                               - 13 -
this Court’s opinion 2012 opinion in Avery v. State.56 There—as here—a defendant

appealed a conviction on the basis that the State prosecuted him under the wrong

subsection of the Penal Code.57 Moreover, as in the present case, the statute at

issue had been revised during an omnibus recodification.58 The fundamental

difference between this case and Avery, however, is that the previous version was

functionally identical to the version in effect at the time of the conviction.

          In Avery, the defendant changed the amount of pills on the prescription that

his doctor provided him.59 The State charged him with violating section

481.129(a)(5)(B) of the Health and Safety Code, which provided:

          (a)    A person commits an offense if the person knowingly or
                 intentionally:
                 (5)    possesses or attempts to possess a controlled substance:
                        (A)      by misrepresentation, fraud, forgery, deception, or
                                 subterfuge;
                        (B)      through use of a fraudulent prescription form;
                                 or
                        (C)      through use of a fraudulent oral or telephonically
                                 communicated prescription.60


56
     Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012).
57
     Avery, 359 S.W.3d at 233–34.
58
     Avery, 359 S.W.3d at 235.
59
     Avery, 359 S.W.3d at 232.
60
     Avery, 359 S.W.3d at 235 (citing Tex. Health & Safety Code § 481.129 (emphasis added)).



                                               - 14 -
On appeal, the defendant contended that he did not use a fraudulent form, he

merely forged the numbers on a form that already existed.61 In its analysis, this

Court looked to the previous version of the statute to determine what conduct the

Legislature intended to criminalize. That version was worded as follows:

          (a) It is unlawful for any person knowingly or intentionally:
                 (3) to acquire, obtain, or attempt to acquire or obtain possession
                 of a controlled substance by misrepresentation, fraud, forgery,
                 deception, or subterfuge, or through use of a fraudulent
                 prescription form or fraudulent oral or telephonically
                 communicated prescription….62

Noting that the Legislature intended a “nonsubstantive revision” when it

recodified this article into the Health and Safety Code, this Court held that

“subsection (A) [of the current version] is broad enough to encompass most

fraudulent attempts to obtain controlled substances, the other subsections allow the

State, if it chooses, to draft a more specific charge that allows the trial court to craft

a better and more informative jury instruction, and that provides more notice to the

defendant regarding the specific act on which the charge is based.”63

          The same logic does not apply to the statute at issue in this case. Here,

section 32.46(a)(1) was never designed to criminalize the act of presenting an

61
     Avery, 359 S.W.3d at 232–33.
62
     Avery, 359 S.W.3d at 235 (citing former Article 4476-15 § 4.09).
63
     Avery, 359 S.W.3d at 236.



                                                 - 15 -
allegedly fraudulent lien to a county clerk for recording and indexing. As discussed

above, the State’s own legislative-history research reflects that the previous version

of the statute prohibited the act of obtaining someone’s signature on a document

affecting property or pecuniary interest by intentionally misrepresenting its

contents.64 When the statute was recodified, the verb “execute” was substituted

for “give assent to,” and “by deception” was substituted for “by falsely reading,

or falsely interpreting…or by misrepresenting its contents.” But none of those

changes even remotely suggest that the Legislature intended to criminalize

Appellants’ alleged actions in this case.

          Instead, as the State’s brief also makes clear, the Legislature believed that it

was necessary to amend section 32.46(a) to add subsection (a)(2) “in an effort to

criminalize the filing of fraudulent judgments and other documents purporting to

create invalid liens against public officials and private citizens.”65 This argument

necessarily begs the question: If subsection (a)(1) already covered this practice,

why was it necessary to amend the statute to include subsection (a)(2)? The answer

is obvious: because the plain language of subsection (a)(1) says nothing about filing

fraudulent documents.


64
     State’s Br., pp. 5–9 & Appendix C; McLarty, 302 S.W.2d at 422.
65
     State’s Br., p. 16 n.6 & Appendix F.



                                               - 16 -
          The State, however, answers this question in a particularly puzzling fashion.

Although it correctly acknowledges that, “subsection (a)(1) covers any document

that is executed, in contrast to subsection (a)(2), which covers false documents

from false courts that are filed or recorded,”66 it then makes the following logical

leap:

          Documents that fall under section 36.42(a)(2) are always fraudulent
          and never valid, and therefore it is a crime to file or record them. On
          the other hand, any person who files a lien, and follows the procedure
          set forth in chapter 53 of the Texas Property Code, has executed a
          valid lien against the property in question even if the basis of that lien
          is later proved fraudulent. Thus, when a person deceives another into
          filing, and therefore executing, a lien that is fraudulent with the intent to
          defraud or harm another, they have violated section 36.46(a)(1).67

Once again, this argument ultimately turns on the State’s errant belief that county

clerks “execute” liens when they accept them for recording and indexing. For the

reasons discussed above, that argument fails.

          Moreover, this argument is simply not supported by the text of the statute or

the legislative history. If the Legislature wanted to criminalize the act of “causing

or inducing a public servant to file or record any purported judgment or other

document” that was fraudulent, it could have ended the sentence there. Instead,



66
     State’s Br., p. 10 (emphasis original).
67
     State’s Br., p. 11–12 (emphasis added).



                                               - 17 -
the Legislature added additional sub-sub-sections to ensure that 36.42(a)(2) only

applied to documents from non-existent judicial entities.68 These limitations are

confirmed by the legislative history, which makes no reference whatsoever to

criminalizing disputed liens that do not arise out of fraudulent courts.69

          In sum, the court of appeals judgment is consistent with both the plain text

and the legislative history of subsections (a)(1) and (a)(2). These provisions were

passed at different times, for entirely different purposes, and neither of them

addresses the acts that Appellants allegedly committed in this case. Accordingly,

because no “overlap” between the two is permitted, the court of appeals’

judgment should be affirmed.

C.        This Court places primary emphasis on the “statutory verb” when
          determining the criminal act at issue.

          The State’s suggestion that that “the focus should not be on the…verbs

found in the subsections, but on the documents that are covered by the statute”70 is

contrary to this Court’s own precedent, as well as the only authority that the State

cites in support of its argument. In its 2005 opinion in Ngo v. State, this Court held

that “the verb…is generally the criminal act on which all jurors must unanimously

68
     See Tex. Penal Code § 36.42(a)(2)(A), (B), (C).
69
     See State’s Br., Appendix F.
70
     State’s Br., p. 15.



                                                - 18 -
agree.”71 To support this holding, it relied on the reasoning of the (aptly-named)

former Fifth Circuit Judge John Minor Wisdom:

          The unanimity rule ... requires jurors to be in substantial agreement as
          to just what a defendant did as a step preliminary to determining
          whether the defendant is guilty of the crime charged. Requiring the
          vote of twelve jurors to convict a defendant does little to insure that
          his right to a unanimous verdict is protected unless this prerequisite of
          jury consensus as to the defendant’s course of action is also required.72

This Court reaffirmed its support for focusing on the “statutory verb” three years

later in Huffman v. State, this time adopting a rule previously offered by former

Judge Cochran in a concurring opinion:

          In sum, we must return to eighth-grade grammar to determine what
          elements the jury must unanimously find beyond a reasonable doubt.
          At a minimum, these are: the subject (the defendant); the main verb;
          and the direct object if the main verb requires a direct object (i.e., the
          offense is a result-oriented crime).... Generally, adverbial phrases,
          introduced by the preposition “by,” describe the manner and means
          of committing the offense. They are not the gravamen of the offense,
          nor elements on which the jury must be unanimous.73

By asking this Court to de-emphasize its focus from the verb-plus-infinitive and

direct object clause (“causes another to sign or execute”) in favor of the adverbial

phrase (“by deception”) or the indirect object (“any document affecting property
71
     Ngo v. State. 175 S.W.3d 738, 745 n.24 (Tex. Crim. App. 2005).
72
  Ngo, 175 S.W.3d at 745 n.24 (citing United States v. Gipson, 553 F.2d 453, 457–58 (5th Cir.
1977) (emphasis added)).
73
  Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) (citing Jefferson v. State, 189
S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran J., concurring)).



                                                - 19 -
or service or pecuniary interest”), the State is actually arguing for a tacit reversal of

this Court’s recent and well-reasoned precedents.

          This Court should decline this invitation, as even the State’s own authority

fails to support its argument. According to the State, the Third Court of Appeals

concluded in its 2008 opinion in State v. Wiesman that “the gravamen of section

32.46 is the deception.”74 Although the State accurately excerpts this phrase from

the opinion, the court’s meaning is misconstrued when it is divorced from the

context of the surrounding text:

          Section 32.46 prohibits the use of deception, broadly defined, to
          fraudulently induce another to sign or execute any document affecting
          the property, service, or pecuniary interest of any person. Although
          the gravamen of the offense is the deception, the offense is not
          complete unless and until the person deceived signs or executes
          the document in question.75

Contrary to the State’s representation, therefore, the Third Court of Appeals did

not conclude—or even suggest—that the purpose of section 32.46(a)(1) was “to

protect the integrity of documentary transactions” in general.76 Instead, the court

held that this subsection was designed only to punish a specific type of deception



74
  State’s Br., p. 14 (citing State v. Wiesman, 269 S.W.3d 769, 776 (Tex. App.—Austin 2008, no
pet.)).
75
     Wiesman, 269 S.W.3d at 776 (emphasis added).
76
     State’s Br., pp. 14–15.



                                             - 20 -
that leads to the signing or execution of specific types of documents.

         Finally, Weisman correctly notes that the direct object in section 32.46(a)(1)

is the pronoun “another,” and that its proper antecedent is “the person

deceived.”77 According to the State’s brief, the person (allegedly) deceived was

Katheryn (Payne) Hall—the complaining witness—whose properly was

encumbered by an (allegedly) fraudulent lien. But according to the State’s

indictment, it did not have to prove that Hall signed or executed any document, it

had to prove that the county clerk signed or executed a document.78 This disparity is

fundamentally inconsistent with Weisman. Moreover, to reverse the court of

appeals and affirm the underlying conviction, this Court would have to conclude

that the Legislature passed section 32.46(a)(1) in 1973 to protect county clerks,

which would clearly be an absurd result, given that they do not have a property,

service, or pecuniary interest in the documents that they file and record. Not

surprisingly, the State’s discussion of the legislative history of section 32.46(a)(1)

makes no reference to such an intent.




77
  Wiesman, 269 S.W.3d at 776. Although the direct object in section 32.46(a)(2) is “a public
servant,” the State concedes that this subsection is inapplicable to the facts of this case because
78
     C.R. 6–7.



                                                - 21 -
      In sum, this Court has expressly disagreed with the State’s argument on this

issue, and the only authority it offers actually reaffirms the correctness of the court

of appeals’ judgment. In the absence of any authority to suggest otherwise, this

Court should affirm.

II.   The State’s incorrectly suggests that the court of appeals’ opinion has
      decriminalized the “fraudulent use of liens.”

      As the State’s own legislative-history research reflects, when the Legislature

added subsection (a)(2) to section 32.46 of the Penal Code, it also added section

32.49 (titled “Refusal To Execute Release Of Fraudulent Lien Or Claim”) which

provides:

      (a)    A person commits an offense if, with intent to defraud or harm
             another, the person:
             (1)    owns, holds, or is the beneficiary of a purported lien or
                    claim asserted against real or personal property or an
                    interest in real or personal property that is fraudulent, as
                    described by Section 51.901(c), Government Code; and
             (2)    not later than the 21st day after the date of receipt of
                    actual or written notice sent by either certified or
                    registered mail, return receipt requested, to the person’s
                    last known address, or by telephonic document transfer
                    to the recipient’s current telecopier number, requesting
                    the execution of a release of the fraudulent lien or claim,
                    refuses to execute the release on the request of:
                    (A)    the obligor or debtor; or
                    (B)    any person who owns any interest in the real or
                           personal property described in the document or
                           instrument that is the basis for the lien or claim.


                                         - 22 -
          (b)     A person who fails to execute a release of the purported lien or
                  claim within the period prescribed by Subsection (a)(2) is
                  presumed to have had the intent to harm or defraud another.
          (c)     An offense under this section is a Class A misdemeanor.79

Although Appellants were never charged with this offense, there is simply no

dispute that this section was inexistence at the time of Appellants’ indictment and

that it remains good law today. Accordingly, the State’s argument that an

affirmance of the court of appeals’ judgment would “lead to the absurd result that

Appellees’ fraudulent use of liens is not a crime”80 is simply false.

          According to the State, however, section 32.49 is insufficient on its face

because its complaining witness failed to follow its requisite procedures:

          This case also would not fall under section 32.49…as there was no
          evidence that the victim followed the necessary steps under section
          32.49(a)(2) by sending notice that she requested Appellees to release
          the liens. While if the victim had followed the procedures necessary in
          section 32.49 and there may have been a case against Appellees if they
          had not released the liens, Appellees were the ones who filed the
          fraudulent liens regardless of whether the victim asked for a release
          per the statute, and Appellees should be criminally responsible for
          their actions.81

In other words, because the State did not have the evidence it needed to obtain a

conviction under existing law, this Court should legislate from the bench and

79
     State’s Br., Appendix F, p. 2 (§ 4); Tex. Penal Code § 32.49 (emphasis added).
80
     State’s Br., p. 16.
81
     State’s Br., pp. 16–17.



                                                - 23 -
retroactively graft new sections onto the Penal Code in order to ensure that

Appellants can be punished. Not only has this Court consistently opposed such

rank judicial activism,82 an argument for the retroactive application of a non-

existent statute raises obvious constitutional concerns.83

          Indeed, this Court’s precedents require sections 32.49 and 32.46 to be read

in pari material, and therefore, it would violate Appellants’ due-process rights if the

State were to subject Appellants to a greater punishment under a broader statute

when a narrower statute called for a more limited punishment. In its 1988 opinion

in Cheney v. State—a case that the State actually cites in its brief in support of the

proposition that specific statutes control over general84—this Court explained how

statutes that impose different penalties for similar conduct should be construed:

          It is a settled rule of statutory interpretation that statutes that deal
          with the same general subject, have the same general purpose, or
          relate to the same person or thing or class of persons or things, are
          considered to be in pari materia.
                                                    ***
          The purpose of this rule is to carry out the full legislative intent, by
          giving effect to all laws and provisions bearing on the same subject.

82
   Ex parte Roemer, 215 S.W.3d 887, 898 (Tex. Crim. App. 2007) (“established principles of
statutory construction and separation of powers prevent this Court from “legislating from the
bench” to correct a perceived inconsistency in a statute”).
83
     See U.S. Const. art. I, § 9, cl.3; Tex. Const. art I, § 16.
84
     State’s Br., p. 17.



                                                    - 24 -
          The rule proceeds on the same supposition that several statutes
          relating to one subject are governed by one spirit and policy, and are
          intended to be consistent and harmonious in their several parts and
          provisions. Thus, it applies where one statute deals with a subject in
          comprehensive terms and another deals with a portion of the same
          subject in a more definite way. But where a general statute and a more
          detailed enactment are in conflict, the latter will prevail, regardless of
          whether it was passed prior to or subsequently to the general statute,
          unless it appears that the legislature intended to make the general act
          controlling.85

Consistent with this rule, therefore, this Court has long held that the State may not

seek greater punishment under a broad statute when lesser punishment is

proscribed under a more specific statute. For example, in its 1986 opinion in Mills

v. State, this Court noted:

          In the case in which the special statute provides for a lesser range of
          punishment than the general, obviously an “irreconcilable conflict”
          exists, and due process and due course of law dictate that an accused
          be prosecuted under the special provision, in keeping with presumed
          legislative intent. Accordingly, where range of punishment under what
          is perceived to be the more specifically defined offense is less than that
          for the broader, and especially where the convicting court would be
          deprived of subject matter jurisdiction in a prosecution under the
          specific provision, this Court has not hesitated to reverse convictions
          obtained under the broader provision.86




85
  Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988) (citing 53 Tex. Jur.2d, Statutes §
186 (1964), at 280). This doctrine has also has also been codified in section 311.026 of the Texas
Government Code.
86
     Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986) (and cases cited therein).



                                                 - 25 -
And more recently, this Court held in Ex parte Smith that “a defendant has a due

process right to be prosecuted under a ‘special’ statute that is in pari materia with a

broader statute when these statutes irreconcilably conflict.”87 Finally, in its 2008

opinion in Azeez v. State, this Court held that such a defect in the trial court’s

judgment could be raised at any time, including for the first time on appeal.88

          The same result should follow here. The State prosecuted Appellants under

the broader language of section 32.46(a)(1) notwithstanding the fact that the more

specific provisions in section 32.49 addressed Appellants’ alleged conduct. Under

this Court’s holdings in Cheney, Mills, Smith, and Azeez, therefore, Appellants

should have been charged with a misdemeanor, not a felony offense. Accordingly,

even if this Court were to conclude that the evidence was legally sufficient to

sustain a conviction under section 32.46(a)(1), the trial court’s judgment is void

because a district court does not have jurisdiction over misdemeanor offenses that

do not involve official misconduct.89 Either way, however, the court of appeals

judgment of acquittal must be affirmed.


87
     Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App.2006).
88
   Azeez v. State, 248 S.W.3d 182, 194 (Tex. Crim. App. 2008). Here, Appellant raised this issue
in his motion for new trial. C.R. 79–81. The trial court, however, never ruled on this motion and
therefore, it was denied by operation of law. Tex. R. App. P. 21.8(c).
89
     Tex. Code Crim. Proc. art. 4.05.



                                              - 26 -
                           Conclusion and Prayer

      The evidence at trial was legally insufficient to support Appellants’

conviction because the State offered no evidence that the Denton County Clerk

signed or executed any document. By seeking a reversal of the court of appeals’

judgment, the State tacitly asks this Court to ignore (a) its evidence at trial, (b) the

plain meaning of the verb “to execute;” (c) the statute’s legislative history; (d) this

Court’s well-established rules on statutory construction; and (e) another plainly-

applicable statute that already criminalizes exactly the same conduct that

Appellants are alleged to have committed. Appellants respectfully submit that this

Court should decline the State’s invitation. Instead, it should affirm the judgment

of the court of appeals, and grant Appellants all other relief in law and equity to

which they have shown themselves to be justly entitled.


                                            Respectfully submitted,

                                            s/ Matthew J. Kita
                                            Matthew J. Kita
                                            Texas Bar No. 24050883
                                            P.O. Box 5119
                                            Dallas, Texas 75208
                                            (214) 699-1863 (phone)
                                            (214) 347-7221 (facsimile)
                                            matt@mattkita.com
                                            Counsel for Appellants



                                          - 27 -
                        Certificate of Compliance

      This brief complies with Texas Rule of Appellate Procedure 9.4(i) because it
contains 6,233 words (excluding the parts of the brief exempted by this rule).

      Signed this 24th day of April, 2015.

                                             s/ Matthew J. Kita
                                             Matthew J. Kita


                         Certificate of Service

      The undersigned certifies that a copy of this brief was served on the
following counsel via e-filing in accordance with Texas Rule of Appellate Procedure
9.5 and this Court’s Local Rules on April 24, 2015:

Counsel for Appellee:

      Lara Tomlin
      Denton County District Attorney’s Office
      1450 East McKinney Avenue
      Denton, Texas 76209

                                             s/ Matthew J. Kita
                                             Matthew J. Kita




                                       - 28 -
