                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-14-00407-CR


THE STATE OF TEXAS                                                   STATE

                                     V.

FRANK EMPEY                                                      APPELLEE


                                  ----------

          FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                     TRIAL COURT NO. CR17613

                                  ----------

                         DISSENTING OPINION

                                  ----------

     John Locke discussed the purpose of government in his Two Treatises of

Government.1 Many of his ideas are reflected in Thomas Jefferson’s writings,




     1
       See generally John Locke, Two Treatises of Government (Peter Laslett
ed., Cambridge Univ. Press, 2d ed. 1967) (1690).
including our Constitution.2     People join together to create a society and

empower their leaders to govern because they seek protection of their lives,

liberty, and property. A government is created and rightfully exists only by the

consent of the governed “and is but the expression of their aggregate will,

designed to secure and protect them in the enjoyment of life, liberty, and

property . . . .”3

       But, inevitably, tension arises between the enjoyment of life and liberty and

the enjoyment of property when claims to property are in conflict. As Presiding

Judge Sharon Keller of the Texas Court of Criminal Appeals has explained,

       The Supreme Court has interpreted the Due Process Clause as
       having both substantive and procedural components.                 The
       substantive component protects the individual against government
       action that either lacks a rational basis or unduly infringes on a
       fundamental right or liberty interest. A statute that infringes upon a
       fundamental right or liberty interest violates the substantive
       component of the Due Process Clause unless the infringement is
       narrowly tailored to serve a compelling state interest. A substantive-
       due-process analysis that is based upon the infringement of a
       fundamental right or liberty interest must provide a careful
       description of the asserted fundamental liberty interest.            A
       fundamental right or liberty interest is one that is deeply rooted in
       this Nation’s history and tradition and implicit in the concept of




       2
       See generally David L. Wardle, Reason to Ratify: The Influence of John
Locke’s Religious Beliefs on the Creation and Adoption of the United States
Constitution, 26 Seattle U. L. Rev. 291 (2002).
       3
       Galveston, H. & S.A. Ry. Co. v. De Groff, 110 S.W. 1006, 1010 (Tex. Civ.
App.—Fort Worth 1908), rev’d on other grounds, 102 Tex. 433, 118 S.W. 134
(Tex. 1909).

                                         2
      ordered liberty, such that neither liberty nor justice would exist if (it)
      were sacrificed.4

      And as our sister court has pointed out, “Substantive due process protects

against the arbitrary and oppressive exercise of government power over a

person’s life, liberty, or property, regardless of the fairness of the procedures

used to implement the government action.”5

      My differences with the majority opinion are founded in such constitutional

guarantees of due process. Unfortunately, in expressing my concerns with the

statute in question and with the majority opinion, I am not sufficiently skillful to

make these concerns clear to the thoughtful and articulate majority.               The

legislature alone, within the boundaries described by our constitutions, delineates

those acts that violate our criminal laws.6 This obligation may not be delegated

to other branches of the government.7 When statutes are so vague or contain


      4
        Fleming v. State, 455 S.W.3d 577, 589–90 (Tex. Crim. App. 2014) (Keller,
P.J., dissenting) (footnotes and internal quotation marks omitted), cert. denied,
135 S. Ct. 1159 (2015).
      5
       Garcia v. Kubosh, 377 S.W.3d 89, 97 (Tex. App.—Houston [1st Dist.]
2012, no pet.).
      6
       See Tex. Const. art. III, § 1; Miller v. French, 530 U.S. 327, 341, 120 S.
Ct. 2246, 2255 (2000); Ex parte Hayward, 711 S.W.2d 652, 655 (Tex. Crim. App.
1986); Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App.), cert. denied, 417
U.S. 968 (1974); David v. State, 453 S.W.2d 172, 179 (Tex. Crim. App. 1970),
vacated in part on other grounds, 408 U.S. 937, 937, 92 S. Ct. 2862, 2862
(1972); Sasser v. State, 131 Tex. Crim. 347, 349, 98 S.W.2d 211, 212 (1936).
      7
        See Ex parte Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978)
(relying on Margolin v. State, 151 Tex. Crim. 132, 138, 205 S.W.2d 775, 778–79
(1947), and Williams v. State, 146 Tex. Crim. 430, 438–39, 176 S.W.2d 177, 183

                                          3
terms that overlap and conflict so that an ordinary person cannot tell which

statute he or she has violated or whether he or she has violated a criminal

statute, the legislature, and no other branch of government, has the authority to

establish certainty in the law.8 Other branches of government may not determine

the elements of an offense on an ad hoc basis.9          To hold otherwise is to

disregard the clear mandate of the due process guarantees of our state and

federal constitutions.10

      Not only must a statute be sufficiently specific to place the ordinary citizen

on notice of the forbidden conduct; it must also provide sufficient notice to law

enforcement personnel to prevent arbitrary or discriminatory enforcement.11 A


(1943)); see also In re Johnson, 554 S.W.2d 775, 781–82 (Tex. Civ. App.—
Corpus Christi 1977), writ ref’d n.r.e., 569 S.W.2d 882, 883 (Tex. 1978).
      8
       Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839,
843 (1972).
      9
        See Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858
(1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498–504, 102 S. Ct. 1186, 1193–96 (1982); Smith v. Goguen, 415 U.S. 566,
575–82, 94 S. Ct. 1242, 1248–52 (1974); Grayned v. Rockford, 408 U.S. 104,
108, 92 S. Ct. 2294, 2298–99 (1972); Kramer v. Price, 712 F.2d 174, 176–78
(5th Cir. 1983), reh’g en banc granted, 716 F.2d 284 (5th Cir. 1983), grant of
relief aff’d, 723 F.2d 1164 (5th Cir. 1984).
      10
           See Grayned, 408 U.S. at 108, 92 S. Ct. at 2298–99; Kramer, 712 F.2d
at 178.
      11
        Chicago v. Morales, 527 U.S. 41, 64, 119 S. Ct. 1849, 1863 (1999)
(holding loitering ordinance unconstitutionally vague because it “afford[ed] too
much discretion to the police and too little notice to citizens who wish[ed] to use
the public streets”); Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App.
1989).


                                         4
statute must be sufficiently definite to avoid the possibility of arbitrary and erratic

arrests and convictions.12     Lack of notice and the lack of guidelines for law

enforcement each provide an independent ground for finding a statute void for

vagueness.13

      A penal statute encourages arbitrary enforcement when it fails to provide

clear guidelines, thereby giving law enforcement officials unbounded discretion to

apply the law selectively.14

      The pertinent portion of the theft statute in the penal code provides that no

matter how minimal the value, a person commits a state jail felony if “the value of

the property stolen is less than $20,000 and the property stolen is” aluminum,

bronze, copper, or brass.15 At the same time, the occupations code provides a

different offense level and therefore a different punishment.              Under the

occupations code, theft by purchase, and thereby possession, of stolen regulated

metals is a misdemeanor that may be enhanced by evidence of prior



      12
        Kolender, 461 U.S. at 357, 103 S. Ct. at 1858; Papachristou, 405 U.S. at
162, 92 S. Ct. at 843.
      13
        Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1985), cert.
denied, 479 U.S. 815 (1986); State v. Wofford, 34 S.W.3d 671, 679 (Tex. App.—
Austin 2000, no pet.).
      14
       May v. State, 765 S.W.2d 438, 440 (Tex. Crim. App. 1989) (op. on reh’g);
Goocher v. State, 633 S.W.2d 860, 865 (Tex. Crim. App. [Panel Op.] 1982);
Wofford, 34 S.W.3d at 680.
      15
           See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).


                                          5
convictions.16       Section 1956.001 of the occupations code defines different

“materials,” “regulated materials,” and “regulated metals”:

      (1)      “Aluminum material” means a product made from aluminum,
               an aluminum alloy, or an aluminum by-product. The term
               includes aluminum wiring and an aluminum beer keg but does
               not include another type of aluminum can used to contain a
               food or beverage.

      (2)      “Bronze material” means:

               (A)     a cemetery vase, receptacle, or memorial made from
                       bronze;

               (B)     bronze statuary; or

               (C)     material readily identifiable as bronze, including bronze
                       wiring.

               ....

      (4)      “Copper or brass material” means:

               (A)     a power inverter or insulated or noninsulated copper
                       wire or cable that contains copper or an alloy of copper
                       or zinc and is of the type used by:

                       (i)     a public utility or common carrier;

                       (ii)    a telecommunications provider as defined by
                               Section 51.002, Utilities Code;

                       (iii)   a cable service provider as defined by Section
                               66.002, Utilities Code; or

                       (iv)    a video service provider as defined by Section
                               66.002, Utilities Code;

               (B)     a copper or brass item of a type commonly used in

      16
           Tex. Occ. Code Ann. § 1956.040(b)–(b-1) (West Supp. 2015).


                                              6
             construction or by:

             (i)     a public utility;

             (ii)    a telecommunications provider as defined by
                     Section 51.002, Utilities Code;

             (iii)   a cable service provider as defined by Section
                     66.002, Utilities Code; or

             (iv)    a video service provider as defined by Section
                     66.002, Utilities Code; or

      (C)    copper pipe or copper tubing.

      ....

(6-a) “Lead material” means:

      (A)    a commercial grade lead battery, lead-acid battery, or
             spiral cell battery; or

      (B)    a material or an item readily identifiable as being made
             of or containing lead.

      ....

(9)   “Regulated material” means:

      (A)    aluminum material;

      (B)    bronze material;

      (C)    copper or brass material;

      (D)    lead material; or

      (E)    regulated metal.

(10) “Regulated metal” means:

      (A)    manhole covers;

      (B)    guardrails;


                                         7
(C)   metal cylinders designed to contain compressed air,
      oxygen, gases, or liquids;

(D)   beer kegs made from metal other than aluminum;

(E)   historical markers or cemetery vases, receptacles, or
      memorials made from metal other than aluminum;

(F)   unused rebar;

(G)   street signs;

(H)   drain gates;

(I)   safes;

(J)   communication, transmission, and service wire or cable;

(K)   condensing or evaporator coils for central heating or air
      conditioning units;

(L)   utility structures, including the fixtures and hardware;

(M)   aluminum or stainless steel containers designed to hold
      propane for fueling forklifts;

(N)   metal railroad equipment, including tie plates, signal
      houses, control boxes, signs, signals, traffic devices,
      traffic control devices, traffic control signals, switch
      plates, e-clips, and rail tie functions;

(O)   catalytic converters not attached to a vehicle;

(P)   fire hydrants;

(Q)   metal bleachers or other seating facilities used in
      recreational areas or sporting arenas;

(R)   any metal item clearly and conspicuously marked with
      any form of the name, initials, or logo of a governmental
      entity, utility, cemetery, or railroad;

(S)   insulated utility, communications, or electrical wire that
      has been burned in whole or in part to remove the
      insulation;



                            8
               (T)    backflow valves;

               (U)    metal in the form of commonly recognized products of
                      the industrial metals recycling process, including bales,
                      briquettes, billets, sows, ingots, pucks, and chopped or
                      shredded metals; and

               (V)    commercial grade lead batteries or lead-acid batteries.17

So if the person purchases and thereby possesses certain stolen metals included

in the penal code section 31.03(e)(4)(F) list—aluminum, copper, bronze, and

brass18—knowing the metal is stolen, and regardless of the amount or value, it

appears that the offense is a Class A misdemeanor under the occupations

code.19

      Thus, if I knowingly go to my local fence and purchase stolen “aluminum

material,” I have committed a Class A misdemeanor,20 unless, of course, either

the arresting officer or the prosecutor decides to prosecute the “aluminum

material” as plain aluminum. Then, I may be charged with a state jail felony

unless I buy more than $20,000 worth.21 If I steal a $1,400 silver coin, I have

committed a Class A misdemeanor,22 but if I pick an aluminum can up off the


      17
           Id. § 1956.001.
      18
           See Tex. Penal Code Ann. § 31.03(e)(4)(F).
      19
           See Tex. Occ. Code Ann. §§ 1956.001(9), .040(b)–(b-1).
      20
           See id. §§ 1956.001(9), .040(b)–(b-1).
      21
           See Tex. Penal Code Ann. § 31.03(b)(2), (e)(4)(F).
      22
           See id. § 31.03(e)(3).


                                           9
street and someone else claims it belongs to him, I am facing a state jail felony

charge,23 unless either the arresting officer or the prosecutor decides to

prosecute me based on the value of the can under section 31.03(e)(1) of the

penal code, in which case theft of that same can becomes a Class C

misdemeanor carrying no jail time.24 And what about the sandwich I take out of

the office refrigerator because I’m really hungry? If the sandwich is wrapped in

aluminum foil, the theft is a state jail felony.25 If that same sandwich is in a

plastic baggie, the theft is only a Class C misdemeanor.26

      My confusion has many sources.        What constitutes aluminum, bronze,

copper, or brass for purposes of penal code section 31.03(e)(4)(F)? Does each

term mean something made of the respective metal, alloyed with the respective

metal, containing the respective metal, or decorated with the respective metal? If

I steal an automobile and some of its parts are made of aluminum, have I stolen

a car, aluminum, or both? That is, have I committed two offenses? When a

person, such as Appellee, is accused of stealing aluminum bats, is he accused of

committing one offense or two? What about copper coins? Does the theft of




      23
           See id. § 31.03(e)(4)(F).
      24
           See id. § 31.03(e)(1).
      25
           See id. § 31.03(e)(4)(F).
      26
           See id. § 31.03(e)(1).


                                       10
each coin constitute a separate offense?27

         Most baking powders for the home and antiperspirant deodorants contain

aluminum.28 If I grab a biscuit off the buffet without paying for it, am I going to be

charged with a state jail felony?         How much of the object must be of the

forbidden metal? More than 50%? Any amount? From the wording of the

statute,29 logic suggests that the object must be primarily made of the forbidden

metal.         Otherwise, why would the statute specifically enumerate aluminum,

copper, brass, and bronze,30 since brass and bronze are alloys containing copper

and sometimes aluminum.31 Indeed, bronze is an alloy consisting primarily of

copper.32 Are courts to conclude that any amount of the forbidden metal dooms

the object in which it may hide? Are courts to hold that an object must contain

sufficient forbidden metal that a person knows that he possesses it, as courts

         27
        See Johnson v. State, 364 S.W.3d 292, 297 (Tex. Crim. App.) (“Theft has
two gravamina: the property and ownership.”), cert. denied, 133 S. Ct. 536
(2012).
         28
        Baking Powder, Wikipedia, The Free Encyclopedia, https://en.wikipedia.
org/wiki/Baking_powder#Usage_of_aluminum_compounds (last visited July 27,
2016) (permalink at https://en.wikipedia.org/w/index.php?title=Baking_powder&
oldid=707002615); Antiperspirant Safety: Should You Sweat It?, WebMD,
http://www.webmd.com/skin-problems-and-treatments/features/antiperspirant-fac
ts-safety (last visited July 27, 2016).
         29
              See Tex. Penal Code Ann. § 31.03(e)(4)(F).
         30
              See id.
         31
       Brass vs. Bronze, Diffen, http://www.diffen.com/difference/Brass_vs_
Bronze (last visited July 27, 2016).
         32
              Id.


                                            11
have held regarding controlled substances?33 Or is it sufficient that someone

knows it?

      And returning to coins, does copper plating transform a penny from zinc to

copper?      Or is it a state jail felony to steal a 1981 penny but a Class C

misdemeanor to steal a 1943 penny because it was made with no copper?34 The

legislature does not inform us. Does this mean that the police officer or the

prosecutor decides this issue on an ad hoc basis?

      As section 31.03 of the penal code and section 1956.040(b)–(b-1) of the

occupations code currently exist, the same act may be punished as a Class C

misdemeanor, a Class A misdemeanor, or a state jail felony, depending on the

whim or sound judgment of the arresting officer or the prosecutor, not the

legislature. If the officer decides the offense is a Class C misdemeanor, there

will likely be no arrest because the penalty carries no jail time and custodial

arrest requires promptly taking the defendant before a magistrate.35 If the officer

decides the offense is a Class A misdemeanor, the bail amount will likely be

      33
           See Shults v. State, 575 S.W.2d 29, 29 (Tex. Crim. App. [Panel Op.]
1979).
      34
         Which U.S. Coin Has Absolutely No Copper in It?, About.com,
http://coins.about.com/od/uscoins/f/coin_nocopper.htm (last visited July 27,
2016).
      35
        See Tex. Code Crim. Proc. Ann. art. 14.06(b) (West Supp. 2015)
(allowing peace officer to issue citation to person charged with Class C offense
instead of taking the person before a magistrate); Tex. Penal Code Ann. § 12.23
(West 2011) (providing Class C punishment is a fine up to $500); Berrett v. State,
152 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).


                                        12
lower than if the officer decides the offense is a felony.36 Similarly, the ultimate

punishment ranges from a tiny fine to two years’ imprisonment and a large fine,

dependent on the officer’s choice.37          And after the officer makes this

determination, the prosecutor weighs in and may make different determinations,

both the officer and the prosecutor acting within the discretion improperly

delegated them by the legislature.      This is the very definition of unbounded

discretion.

      As the Texas Court of Criminal Appeals has repeatedly reminded us,

              The federal constitution affords the states broad authority to
      narrowly construe a statute to avoid a constitutional violation. . . .
      Texas courts have a duty to employ a reasonable narrowing
      construction for that purpose. But . . . a narrowing construction
      should be employed only if the statute is readily susceptible to one.
      We may not rewrite a statute that is not readily subject to a
      narrowing construction because such a rewriting constitutes a
      serious invasion of the legislative domain and would sharply diminish
      the legislature’s incentive to draft a narrowly tailored statute in the
      first place.

           . . . [A] law “is not susceptible to a narrowing construction
      when its meaning is unambiguous.” This statement accords with our

      36
        See Ex parte Castellanos, 420 S.W.3d 878, 882 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (“The defendant’s potential sentence and the nature of
the crime are significant factors for us to consider when assessing the
reasonableness of a bail amount.”) (citing Montalvo v. State, 315 S.W.3d 588,
593 (Tex. App.—Houston [1st Dist.] 2010, no pet.), and Ex parte Hunt, 138
S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pets. ref’d)).
      37
         Compare Tex. Penal Code Ann. § 12.23 (providing that person convicted
of “Class C misdemeanor shall be punished by a fine not to exceed $500”), with
Tex. Penal Code Ann. § 12.35(a)–(b) (West Supp. 2015) (providing that person
convicted of state jail felony faces up to two years’ confinement in state jail and a
fine of up to $10,000).


                                         13
      longstanding practice of giving effect to the plain meaning of a
      statute unless the language is ambiguous or the plain meaning leads
      to absurd results that the legislature could not have possibly
      intended. It also accords with our more recent statements that a
      statute is ambiguous if the statutory language “is reasonably
      susceptible to more than one understanding.”38

      Penal code section 31.03(e)(4)(F) is another example of special-interest

legislation intended to benefit real estate developers who were tired of repeated

burglaries and thefts of wiring and air conditioner parts.39 With the increased

value of copper and aluminum, other owners of houses, apartments, and

buildings were also the victims of these thefts and burglaries.40 In 2011, the

governor signed Senate Bill 694, which removed the requirement that at least

50% of the stolen item be made of specific metals, such as copper or

aluminum.41 The removal of this scope limitation generated many questions.


      38
         Ex parte Thompson, 442 S.W.3d 325, 339–40 (Tex. Crim. App. 2014)
(citations omitted).
      39
       See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling
Roundup—April 2011, http://www.dallassierraclub.org/index.htm?c=con&s=24&
sc=212311 (last visited July 27, 2016); Press Release, The Office of Tex. State
Senator Royce West, Senator West Announces New State Law to Fight Metals
Theft (Apr. 4, 2008), available at http://www.senate.state.tx.us/75r/Senate/
Members/Dist23/pr08/p040408a.htm (last visited July 27, 2016).
      40
       See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling
Roundup—April 2011; Press Release, The Office of Tex. State Senator Royce
West, Senator West Announces New State Law to Fight Metals Theft (Apr. 4,
2008).
      41
       See Act eff. Sept. 1, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex.
Sess. Law Serv. 3309, 3310 (West) (codified at Tex. Penal Code Ann.
§ 31.03(e)(4)(F)).


                                       14
That is, now that the legislature specifically removed this quantitative restriction

from section 31.03(e)(4)(F), the statute is clearly ambiguous.

       The indictment that tracks that section also creates an additional

constitutional issue. The Texas Court of Criminal Appeals has repeatedly held

that generally, “an indictment tracking the language of the statute will satisfy

constitutional and statutory requirements; the State need not allege facts that are

merely evidentiary in nature.”42         In contrast, the Texas Legislature has

established a baseline for indictments requiring that “[i]f known, personal property

alleged in an indictment shall be identified by name, kind, number, and

ownership. When such is unknown, that fact shall be stated, and a general

classification, describing and identifying the property as near as may be, shall

suffice.”43

       Clearly, besides ownership, the gravamen of the theft offense under

section 31.03(e)(4)(F) is theft of any amount of the forbidden metals.         The

indictment that tracks the statute gives no notice of the item containing or made

of the forbidden metal. The prosecution is only for the theft of the forbidden

metal, not the rest of the item. Nor does the indictment that tracks this statute

give any notice of the identity of the item.        But both the code of criminal

procedure and the Texas Court of Criminal Appeals have provided that


       42
            State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
       43
            Tex. Code Crim. Proc. Ann. art. 21.09 (West 2009).


                                          15
      [t]he purpose of an indictment is “to give the defendant notice of the
      particular offense with which he is charged, and enable the court, on
      conviction, to pronounce the proper judgment”; an indictment must
      also be specific enough to “enable the accused to plead the
      judgment that may be given upon it in bar of any prosecution for the
      same offense.”44

      How does an indictment that tracks this vague statute give Appellee notice

of the particular offense with which he is charged or enable the court to

pronounce the proper judgment on conviction? How can a court conclude that

the indictment here, which does not mention the baseball bats, is sufficiently

specific to “enable the accused to plead the judgment that may be given upon it

in bar of any prosecution” for stealing those same baseball bats?

      Because I believe that due process demands both that we uphold the trial

court’s decision in this specific case and that the legislature revise section

31.03(e)(4)(F) so that it provides adequate notice to citizens and law

enforcement, I must respectfully dissent.


                                                  /s/ Lee Ann Dauphinot

                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: August 4, 2016




      44
      Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) (citing Tex.
Code Crim. Proc. Ann. arts. 21.04, 21.11 (West 2009)).

                                       16
