                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00176-CR


ROGER LIVERMAN                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE



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         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0136-D
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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

     Appellant Roger Liverman appeals his conviction for securing execution of

a document by deception involving a pecuniary interest of $20,000 or more but

less than $100,000. See Tex. Penal Code Ann. § 32.46(a)(1), (b)(5) (West Supp.


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      See Tex. R. App. P. 47.4.
2014). In two issues, Liverman argues that the evidence is insufficient to support

his conviction and that his due process rights were violated. We will reverse the

trial court’s judgment and render a judgment of acquittal.2

                                 II. BACKGROUND

      On July 22, 2008, Liverman filed a mechanic’s lien affidavit entitled “Claim

of Lien” in the Denton County Clerk’s Office averring that he had performed

$45,000 worth of “labor and/or materials” on a home owned by complainant

Katheryn Payne.      Because of this filing, the State charged Liverman with

securing execution of a document by deception. See id. § 32.46. Relevant to

this appeal, the indictment alleged that Liverman had caused “Cynthia Mitchell to

sign or execute a document affecting the property or service of [Payne.]” The

indictment further alleged that the document Liverman had caused Mitchell to

“sign or execute” was the affidavit he filed on July 22, 2008.

      At a bench trial, Mitchell, the County Clerk for Denton County, testified that

her duties as the county clerk included the filing and recording of mechanic’s lien

affidavits. According to Mitchell, if someone brought a document that met “the

recording requirements” of such an affidavit, either she or one of her deputies

would take “the document, enter[] a certain amount of information into the

computer system, take[] payment for [the filing of the document], and record[] the

document.”

      2
       This cause was assigned for writing to the author on July 3, 2014.



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      After hearing further testimony not pertinent to this opinion, the trial court

found Liverman guilty of securing execution of a document by deception. See

Tex. R. App. P. 47.1, 47.4.         Liverman then pleaded true to the State’s

enhancement paragraph, and the trial court sentenced him to ten years’

incarceration and a $5,000 fine.      The trial court then suspended Liverman’s

sentence and placed him on community supervision for ten years. After the trial

court entered judgment accordingly, this appeal followed.

                                   III. DISCUSSION

      In his first issue, Liverman argues that the evidence is insufficient to

support his conviction for securing the execution of a document by deception

because the State failed to provide any evidence to demonstrate that the county

clerk “signed or executed” the mechanic’s lien affidavit. Liverman’s argument is

that the actions by the court clerk of filing and recording the affidavit are neither

the signing nor the executing of a document and that, thus, the State failed to

provide evidence of this element of the charged offense.

      The State counters that when the court clerk affixed her signature to the

affidavit’s court-created cover sheet attesting that the affidavit had been filed and

recorded in the “Official Records of Denton County, Texas,” and when the court

clerk then filed and recorded the affidavit, she put the mechanic’s lien affidavit

into its final legal form, and thus under the clear terms of the statute, it introduced




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sufficient evidence to satisfy this element of the offense.         We agree with

Liverman.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). If we conclude that the evidence is insufficient under this

standard, we must reverse the judgment and render a judgment of acquittal. See

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).

      In this case, the State charged Liverman with securing the execution of a

document by deception under Texas Penal Code section 32.46(a)(1). See Tex.

Pen. Code Ann. § 32.46(a)(1).        Section 32.46(a)(1) states that “[a] person

commits an offense if, with intent to defraud or harm any person, he, by

deception: (1) causes another to sign or execute any document affecting

property or service or the pecuniary interest of any person.”         Id. (emphasis

added).

      When a statute is unambiguous, we are required to give effect to the plain

meaning of the words unless doing so would lead to absurd results. See Boykin

v. State, 818 S.W.2d 782, 785–86 n.4 (Tex. Crim. App. 1991); Uribe v. State, 7

S.W.3d 294, 296 (Tex. App.—Austin 1999, pet. ref’d). We presume that the




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legislature used every word and phrase in a statute for a purpose. See Uribe, 7

S.W.3d at 296.

      A corollary to the presumption that every statutory word and phrase used

has a legislative purpose is that when the legislature uses certain language in

one part of the statute and different language in another, we presume different

meanings were intended. See Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim.

App. 1977) (“Every word of a statute is presumed to have been used for a

purpose, and a cardinal rule of statutory construction requires that each

sentence, clause, phrase and word be given effect if reasonably possible.”); see

also Sosa v. Alvarez–Machain, 542 U.S. 692, 711 n.9, 124 S. Ct. 2739, 2754 n.9

(2004) (reasoning that different words used in the same, or a similar, statute are

assigned different meanings whenever possible); DeWitt v. Harris County, 904

S.W.2d 650, 653 (Tex. 1995) (“DeWitt’s argument is founded on the familiar

canon of construction that ‘when the legislature uses certain language in one part

of the statute and different language in another, the court assumes different

meanings were intended.’”) (quoting 2A N. Singer, Statutes and Statutory

Construction § 46:06 (5th ed. 1992)).

      Here, this court needs to look no further than two of the subsections of

section 32.46 to ascertain that the conduct of the court clerk filing and recording

the mechanic’s lien affidavit in this case was not the signing or executing of a

document as contemplated by subsection 32.46(a)(1). In subsection 32.46(a)(1),




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the focus of the prohibited conduct is causing one to “sign or execute” a

document, but the focus of the prohibited conduct in subsection 32.46(a)(2) is

causing a public servant to “file or record” a fraudulent document. Tex. Penal

Code Ann. § 32.46(a). If, as the State argues in this case, we were to interpret

subsection 32.46(a)(1)’s provision of “sign or execute” to include “filing” and

“recording,” then we would violate the presumption that different meanings were

intended by the legislature when it used “sign or execute” in subsection

32.46(a)(1) and “file or record” in subsection 32.46(a)(2). DeWitt, 904 S.W.2d at

653.

       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. See Tex. Penal Code Ann. § 32.46(a). 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). Id.

       Furthermore, to the extent that the State now argues on appeal that there

exists sufficient evidence that the document was “sign[ed] or execute[d]” because




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the county clerk affixed her signature to the affidavit’s court-created cover sheet

attesting that the affidavit had been filed and recorded, we conclude that the

State’s argument is misplaced. See id. The indictment charged Liverman with

causing the county clerk to sign or execute his mechanic’s lien affidavit, which is

attached to the indictment and does not include the court-created cover sheet.

Thus, the indictment did not charge Liverman with having caused the court clerk

to sign or execute the court-created cover sheet; therefore, the signed cover

sheet is not proof of the alleged charge. See Byrd v. State, 336 S.W.3d 242, 247

(Tex. Crim. App. 2011) (“A variance of this type is actually a failure of proof

because the indictment sets out one distinct offense, but the proof shows an

entirely different offense.”).

        The State failed to provide any evidence from which a rational trier of fact

could have found the essential element that Liverman caused the court clerk to

“sign or execute” Liverman’s mechanic’s lien affidavit, and we therefore sustain

his first issue. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393

S.W.3d at 768.

        Because we sustain Liverman’s first issue, we need not address his

second issue. See Tex. R. App. P. 47.1. Furthermore, because we hold that the

evidence is insufficient to support an essential element of Liverman’s conviction,

we must render a judgment of acquittal. See Tibbs, 457 U.S. at 41, 102 S. Ct. at

2218.




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                               IV. CONCLUSION

      Having sustained Liverman’s first issue and having not addressed his

second issue, we reverse the trial court’s judgment and render a judgment of

acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19,

24–25, 98 S. Ct. 2151, 2154–55 (1978).



                                                /s/ Bill Meier

                                                BILL MEIER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 9, 2014




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