             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                            AP-76,302


                           EX PARTE WILLIAM LEE NISWANGER


                   ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                            FROM FREESTONE COUNTY


       WOMACK, J., filed a concurring opinion.


       While I agree that relief should be denied, I do not join the Court’s opinion because it is

contrary to the principle that the sufficiency of an indictment is determined within the four

corners of the indictment, without reference to the evidence that may be produced at trial.

       The indictment alleged that the defendant “impersonate[d] a public servant, namely, a

fireman, … by showing a badge and identification to induce the purchase of raffle tickets for fire

fighter fund.”

       The Court’s opinion begins to contradict our precedents in note 10: “ To be guilty under

Section 37.11(a)(1), a defendant must have been engaged in some overt action in an official

capacity that is more than merely showing official identification. [Citations omitted.] The
                                                                                  (Niswanger concurrence) - 2

indictment alleges only two acts: (1) the display of the badge and identification and (2) the sale of

raffle tickets. Because the first is not sufficient by itself to constitute a crime, whether the second

is an official act is critical in determining whether the indictment alleges a crime.”

        I disagree. Whether the second act (sale of raffle tickets) is, in fact, an official act is

critical in determining whether the defendant will be convicted. But that will depend on the

evidence, not the allegation in the indictment.

        On page 12, the opinion says that “Counsel could have filed a motion to quash on the

grounds that Applicant was not impersonating a ‘public servant’ and that the raffle ticket sale

was not an official act. Given the unsettled nature of the relevant law, it is uncertain how the

court would have ruled on the motion. If the court granted the motion on either ground, then the

indictment would have failed to allege a crime, like the Benoit indictments for delivery of

diazepam.”

        This analysis is flagrantly incorrect. Again, a motion to quash tests only the facial validity

of the indictment. Whether the evidence would fail to prove that the applicant was impersonating

a public servant, or fail to prove that the raffle-ticket sale was an official act, could not be tested

by a motion to quash the indictment.

        The denial of relief is probably correct, but I cannot join the reasoning.


Filed March 16, 2011.
Publish.
