

 

                                                                                                                             
 
 
 
 
NUMBERS
13-09-00477-CR
                                                13-09-00478-CR

                                                
COURT
OF APPEALS
 
THIRTEENTH
DISTRICT OF TEXAS
 
                                  CORPUS
CHRISTI - EDINBURG
 





















 

MAURICIO RODRIGUEZ
CELIS,                                                 Appellant,
 
v.
 
THE STATE OF TEXAS,                                                                
Appellee.
 
 

On
appeal from the 148th District Court
of
Nueces County, Texas.
 
 

OPINION
 
Before
Chief Justice Valdez and Justices Garza and Perkes
 Opinion
by Chief Justice Valdez
 
            Appellant, Mauricio Rodriguez Celis,
was convicted of fourteen counts of falsely holding himself out as a lawyer.  See
Tex. Penal Code Ann. § 38.122(a)
(West 2003).  By eighteen issues, appellant seeks to reverse his conviction
based on challenges to: (1) the legal sufficiency of the evidence; (2) the
denial of his motion for new trial based on judicial bias; (3) the
constitutionality of section 38.122 of the Texas Penal Code; (4) the jury
charge; and (5) the admission and exclusion of evidence.  For the reasons set
forth below, we overrule appellant’s issues and affirm the judgments of the
trial court.     
I. Background
By two indictments,[1] appellant was
charged with 23 counts of falsely holding himself out as a lawyer in violation
of section 38.122(a) of the Texas Penal Code.  See id.  A jury
trial was held in the 148th Judicial District Court of Nueces County with Judge
Mark Luitjen presiding by appointment.  At trial, the State offered the
testimony of 20 witnesses and over 100 exhibits, including appellant’s sworn
testimony in a civil case.  In presenting his defense, appellant relied upon
many of the same witnesses and exhibits and, in addition, offered the testimony
of three other witnesses.
The evidence established
that appellant held himself out as a lawyer with CGT Law Group International,
LLP, a law firm located in Nueces County, Texas founded by appellant and
others.  Appellant has not been admitted to the practice of law in Texas. 
Although appellant described himself as a lawyer from Mexico, he is not
certified as a foreign legal consultant.  According to the testimony of Josh
Hensley, the Director of Eligibility and Examination of the Texas Board of Law
Examiners, a person who has a certificate as a foreign legal consultant is considered
to be affiliated with the State Bar of Texas, and is allowed to have a law
practice limited to advising clients about the laws of Mexico while maintaining
an office in Texas.  The Texas Board of Law Examiners requires attorneys from
Mexico to produce a “cedula” as evidence of the person’s ability to practice
law in Mexico, as well as a certificate from Mexico’s Ministry of Education
stating that the person is currently meeting the requirement to be a lawyer in
Mexico.  
The evidence, including
appellant’s sworn testimony, established that appellant does not have a cedula. 
Nevertheless, when asked, “[A]re you a nonlawyer or are you a lawyer?”
appellant testified, “I am a lawyer in Mexico. . . .  I’m considered a lawyer
in Mexico.”  According to appellant, “The Constitution does not require that
you be a licensed attorney or have a diploma in law to practice law in Mexico.” 
Appellant testified that although he has a diploma in judicial sciences, it has
never been registered with the Ministry of Education, which is required to
obtain a cedula. 
            Appellant called two witnesses to
testify about the requirements to practice law in Mexico.  The first witness,
Jose Martin de Valenzuela Hernandez, an attorney with appellant’s law firm (who
has a cedula), testified that it is not necessary to go to law school and
obtain a law license to practice law in Mexico.  Hernandez testified that
“[t]he cedula is not a license.”  According to Hernandez, “that’s what the law
in Mexico is . . . .  Anybody who goes and wants to practice in the four areas
of amparo, employment law, agrarian law, and criminal law can do that.  Anybody
here can do that.  And they can go to Mexico and try it.”  On
cross-examination, the State asked Hernandez, “So, every single Mexican citizen
is licensed to practice law?” to which Hernandez replied, “As long as they’re
not liars and they’re not mentally incompetent . . . .  The law establishes it
as such for everyone.”  The State also asked Hernandez, “Under this particular
statute, everybody in Mexico is authorized to practice law, is that right?” and
Hernandez answered, “That’s correct.”  Later, Hernandez testified that
appellant is a “licenciado,” a term which he described as a synonym for
attorney, based on a law that applies “to every single Mexican citizen.”  The
State asked Hernandez, “So every Mexican citizen is a licenciado?” to which
Hernandez replied, “If you want to look at it that way, you have a license
under the constitution and laws, yes.”
            The second witness called by
appellant, Hector Rene Valdez Diaz (who also has a cedula), gave testimony
consistent with Hernandez’s testimony.  Diaz is a personal secretary for the
Chief Justice of the Supreme Court of Justice of the State of Chihuahua.  On
cross-examination, the State asked Diaz, “So what you’re telling this jury is
that all Mexican citizens who are of legal age and of sound mind are licensed
to practice law in Mexico?” to which Diaz replied, “In these areas [referring
to amparo, employment law, agrarian law, and criminal law], yes.”  
The jury returned a verdict
of guilty on 14 counts:  (1) stating on a business card that he was licensed in
Mexico (count 2 in Cause No. 07-CR-4046-E, submitted to the jury as count 1);
(2) being described on a business webpage as an attorney at law and a licensed
attorney in Mexico (count 5 in Cause No. 07-CR-4046-E, submitted to the jury as
count 4); (3) signing a legal document in a place designated for an attorney’s
signature (count 6 in Cause No. 07-CR-4046-E, submitted to jury as count 5);
(4) stating that he was a lawyer, that he had been admitted to the bar in the
year 2000, that he had been in the full time practice of law for 6 years and
that he was a member in good standing of the state bar of Mexico, in an insured
supplement application for lawyer’s professional liability insurance (count 2
in Cause No. 08-CR-1365-E); (5) stating that he was a lawyer, that he had been
admitted to the bar in the year 2000, that he had been in the full time
practice of law for 7 years and that he was a member in good standing of the
state bar of Mexico, in an insured supplement application for lawyer’s
professional liability insurance (count 3 in Cause No. 08-CR-1365-E); (6) accepting
a check in the amount of $84,286.15 as attorney’s fees (count 6 in Cause No.
08-CR-1365-E); (7) accepting a check in the amount of $100,020.83 as attorney’s
fees (count 7 in Cause No. 08-CR-1365-E); (8) accepting a check in the amount
of $80,000.00 as attorney’s fees (count 8 in Cause No. 08-CR-1365-E); (9) accepting
a check in the amount of $286,000.00 as attorney’s fees (count 9 in Cause No.
08-CR-1365-E); (10) accepting a check in the amount of $27,000.00 as attorney’s
fees (count 10 in Cause No. 08-CR-1365-E); (11) accepting a check in the amount
of $122,500.00 as attorney’s fees (count 11 in Cause No. 08-CR-1365-E); (12) accepting
a check in the amount of $157,500.00 as attorney’s fees (count 12 in Cause No.
08-CR-1365-E); (13) accepting a check in the amount of $440,000.00 as
attorney’s fees (count 13 in Cause No. 08-CR-1365-E); and (14) accepting a check
in the amount of $37,789.53 as attorney’s fees (count 14 in Cause No.
08-CR-1365-E).
The jury assessed a ten-year
prison sentence and $10,000 fine as punishment for each offense.  The jury
recommended that the prison sentence be suspended and that appellant be placed
on community supervision.  Judge Luitjen did not sentence appellant at that
time, but instead ordered the preparation of a presentence report.    
Subsequently, on March 26,
2009, Judge Luitjen reconvened the proceedings to consider, among other things,
the State’s request for restitution.  Although appellant had not yet been
sentenced, the court certified appellant’s right of appeal and set bond at
$700,000.
On April 24, 2009, before sentencing
had taken place, appellant filed a motion to recuse Judge Luitjen based on
allegations of judicial bias involving the judge’s courtroom behavior.  In
support of the motion, appellant attached affidavits from seven of the jurors
who served on the case.  In their affidavits, each of the jurors expressed an
opinion that based on what he or she had observed during the trial, Judge Luitjen
was biased against appellant and his counsel.  The same affidavits were also
attached in support of appellant’s motion for new trial, which was filed at the
same time as the motion to recuse.  Appellant’s motion for new trial requested
relief based on structural error involving the same allegations of judicial
bias made in the motion to recuse.
On May 15, 2009, Judge
Manuel Banales, then the presiding judge of the Fifth Administrative Judicial
Region of Texas, held a hearing on appellant’s motion to recuse.  Six of the
seven jurors whose affidavits had been relied upon by appellant were called as
witnesses at the hearing and gave testimony verifying the statements made in
the affidavits.  At the conclusion of the hearing, Judge Banales granted the
motion to recuse and assigned himself to the case.  Subsequently, Judge Banales
accepted the jury’s assessment of punishment on all fourteen counts, suspended
the prison term, imposed community supervision for a term of ten years, and assessed
a single fine in the amount of $10,000.[2]     

On June 24, 2009, the State
filed a motion to recuse Judge Banales.  Chief Justice Wallace Jefferson of the
Texas Supreme Court appointed the Honorable Louis Sterns to preside over the
motion to recuse.  After holding an evidentiary hearing, Judge Sterns granted
the motion to recuse and the Honorable Sid Harle was appointed to preside over the
case.  
On August 3, 2009, a hearing
was held on appellant’s motion for new trial.  At the hearing, appellant argued
that he was entitled to a new trial based on structural error involving
judicial bias.  Appellant offered the juror affidavits and a transcript of the
recusal hearing as evidence.   In opposing the motion, the State argued that
the trial court had no authority to grant a new trial based on judicial bias
and that, in any event, appellant had not established judicial bias.  The trial
court denied the motion for new trial.  This appeal ensued.
II. Legal
Sufficiency of the Evidence
            In issues sixteen through
eighteen, appellant challenges the legal sufficiency of the evidence to support
his conviction on all fourteen counts.[3] 

A.
Standard of Review and Applicable Law
            In reviewing the legal
sufficiency of the evidence, we view all the evidence in the light most
favorable to the verdict in order to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v.
State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).  The sufficiency of the
evidence is measured by the elements of the hypothetically correct jury charge
for the case.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).  Such a charge would be one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which
the defendant was tried.  See Gollihar v. State, 46 S.W.3d 243, 253
(Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240.  The law as authorized
by the indictment means the statutory elements of the charged offense as
modified by the charging instrument.  See Curry v. State, 30 S.W.3d 394,
406 (Tex. Crim. App. 2000).
Section 38.122(a) of the
Texas Penal Code states as follows:
A person commits an
offense if, with intent to obtain an economic benefit for himself or herself,
the person holds himself or herself out as a lawyer, unless he or she is
currently licensed to practice law in this state, another state, or a foreign
country and is in good standing with the State Bar of Texas and the state bar
or licensing authority of any and all other states and foreign countries where
licensed.
 
Tex. Penal Code Ann. §
38.122(a).  In this case, the elements of the hypothetically correct jury
charge are as follows:  (1) a person held himself out as a lawyer with intent
to obtain an economic benefit for himself; and (2) the person was not (a)
currently licensed to practice law in this state, another state, or a foreign
country, (b) in good standing with the State Bar of Texas, or (c) in good
standing with the state bar or licensing authority of any and all other states
and foreign countries where licensed.  See id.  
B.
Licensure in Another State
            In his sixteenth issue, appellant
argues that he is entitled to a judgment of acquittal on all fourteen counts
because the evidence is legally insufficient to prove that he was not licensed
in another state.  Appellant assumes, incorrectly, that the lack of licensure
in another state is an essential element of the offense of falsely holding
oneself out as a lawyer.  See Tex.
Penal Code Ann. § 1.07(22) (West Supp. 2010) (“‘Element of offense’
means: (A) the forbidden conduct; (B) the required culpability; (C) any
required result; and (D) the negation of any exception to the offense.”). 
Appellant suggests that licensure in another state is an exception to the
offense that must be negated, but the statute does not label licensure in
another state as an exception to the offense.  See Tex. Penal Code Ann. § 2.02(a) (West 2003)
(“An exception to an offense in this code is so labeled by the phrase: ‘It is
an exception to the application of. . . .’”).   
In other cases involving
this offense, the legal sufficiency of the evidence has been upheld without
consideration of whether the defendant was licensed in another state and even
where the evidence showed the defendant was licensed in another state.  See
Satterwhite v. State, 979 S.W.2d 626, 628-29 (Tex. Crim. App. 1998)
(affirming conviction of Texas attorney based on lack of “good standing” with
State Bar of Texas); Ellis v. State, No. 14-99-00511-CR, 1999 Tex. App.
LEXIS 7464 **3-4 (Tex. App.—Houston [14th Dist.] Oct. 7, 1999, pet. ref’d) (not
designated for publication) (“The record in this case clearly shows that
Appellant has been disbarred by the State Bar of Texas; therefore, he is not in
‘good standing’ with the State Bar of Texas. It would be absurd to suggest that
a person who has been disbarred from practicing law in Texas could rely on a
law license issued by another state as a means to circumvent the disbarment and
continue to hold himself or herself out as a lawyer in Texas.”).  
Moreover, we disagree with appellant’s
assertion that there was no evidence that he was not licensed in another
state.  Appellant was asked, “[A]re you a nonlawyer or are you a lawyer?” to
which appellant replied, “I am a lawyer in Mexico. . . .  I’m considered a
lawyer in Mexico.”  Any rational trier of fact could have found that appellant
was not licensed in another state based on his answer, which necessarily
implied that Mexico is the only place where he claims to be licensed to
practice law.  Accordingly, we conclude that there is no merit to appellant’s
sixteenth issue, and it is therefore overruled. 
C.
Venue
            In his seventeenth issue,
appellant contends that the evidence was legally insufficient to prove venue in
Nueces County as to counts 2 and 3 of Cause No. 08-CR-1365-E, which involved
statements made in an insured supplement application for lawyer’s professional
malpractice insurance.  Appellant argues that the State failed to offer any
evidence that he was physically located in Nueces County when he signed the
insurance applications.  
            Venue is not a “criminative fact”
and thus, not a constituent element of the offense.  Fairfield v. State,
610 S.W.2d 771, 779 (Tex. Crim. App. 1981).  Therefore, it need not be proven
beyond a reasonable doubt, but rather, by a preponderance of evidence.  Id.;
see also Tex. Code Crim. Proc.
Ann. art. 13.17 (West 2005) (“To
sustain the allegation of venue, it shall only be necessary to prove by the
preponderance of the evidence that by reason of the facts in the case, the
county where such prosecution is carried on has venue.”).  Where, as here,
there is not a special venue statute applicable to the charged offense, the
proper venue for the prosecution is the county in which the offense was
committed.  Tex. Code Crim. Proc.
Ann. art. 13.18 (West 2005).  
            In this case, the evidence
established that appellant held himself out as a lawyer with the law firm CGT
Law Group International, LLP.  The evidence also established that appellant
used the firm’s office in Nueces County as his principal place of business for
conducting these activities.  The firm’s address in Nueces County is the only address
listed on appellant’s business card.  Although the firm’s letterhead also lists
an address in Washington D.C., Doug Gwyther, an attorney with the firm,
testified that appellant did not have a permanent office in Washington D.C. and
went there only a “couple of times.”  Based on the foregoing circumstantial evidence
concerning the extent to which appellant conducted his business activities in
Nueces County to the exclusion of other locations, a rational trier of fact
could find by a preponderance of the evidence that appellant was in Nueces
County when he signed the applications for malpractice insurance.  See
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“Direct and
circumstantial evidence are treated equally: Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.”); Taylor
v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (“Direct evidence
directly demonstrates the ultimate fact to be proven, whereas circumstantial
evidence is direct proof of a secondary fact which, by logical inference,
demonstrates the ultimate fact to be proven.”).  Appellant’s seventeenth issue
is overruled.
D.
The “Check” Counts
In his eighteenth issue,
appellant argues that he is entitled to an acquittal on counts 6 through 14 in
Cause No. 08-CR-1365-E because evidence that he accepted checks for attorney’s
fees from the Owen & Associates law firm is not legally sufficient to prove
that he held himself out as a lawyer.  We disagree.  The manner or means by
which a person holds himself out as a lawyer is not material and, therefore,
would not be included in a hypothetically correct charge. Rodriguez v. State,
336 S.W.3d 294, 299 (Tex. App.—San Antonio 2010, pet. ref’d).  
In this case, the evidence
established that appellant held himself out as a lawyer from Mexico in order to
engage in fee-sharing activities with other lawyers.  At trial, the witnesses
for the State included James Ehler, the Deputy Chief Counsel for the Chief
Disciplinary Counsel’s Office of the State Bar of Texas, who testified that
when a person accepts a check for attorney’s fees, he is making a
representation that he is a licensed lawyer in the state where he is accepting
the fee.  Another witness called at trial was Lee Trujillo, the accountant who
prepared the checks for the Owen & Associates law firm.  The memo line on
each check (with one exception) stated that the payment was for attorney’s fees
and provided the last name of the client whose case had been settled. 
Financial statements prepared by Trujillo were offered as evidence to establish
the fee-sharing arrangement that resulted in the check payments to appellant
for attorney’s fees.  Trujillo testified that he believed appellant was an
attorney when the fee-sharing activities were taking place.  Based on this
testimony and evidence, any rational trier of fact could have found that
appellant held himself out as a lawyer as alleged in each of the counts.  
Appellant’s eighteenth issue
is overruled. 
III.
Motion for New Trial
Issues one through six are
argued together in appellant’s brief.[4] 
In issues one and two, appellant complains that Judge Luitjen was biased
against him in violation of the constitutional guarantees of due process of
law.  In issues three and four, appellant complains that Judge Luitjen’s bias
deprived him of his rights to a reliable jury verdict and effective assistance
of counsel.  In issue five, appellant complains that Judge Luitjen’s bias violated
article 38.05 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.05
(West 1979).  In issue six, appellant argues that the trial court abused its
discretion in denying his motion for new trial, which sought relief based on
the allegations of judicial bias raised in issues one through five.  
A.  
Standard of Review
We review the denial of a
motion for new trial for abuse of discretion.  See Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007).  We view the evidence in the light most
favorable to the trial court’s ruling and uphold the trial court’s ruling if it
was within the zone of reasonable disagreement.  Id.  We do not
substitute our judgment for that of the trial court, but rather we decide
whether the trial court’s decision was arbitrary or unreasonable.  Id. 
Thus, a trial court abuses its discretion in denying a motion for new trial
only when no reasonable view of the record could support the trial court’s
ruling.  Id. 
B.  
Judicial Bias
In issues one and two,
appellant argues that he is entitled to a new trial because Judge Luitjen was
biased against him in violation of the U.S. Constitution’s guarantees of due
process of law.[5] 

1.   
Applicable Law
The Due Process Clause
guarantees a defendant a fair trial in a fair tribunal before a judge with no
actual bias against the defendant or interest in the outcome of his particular
case.  Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).  The Due Process
Clause has been implemented by objective standards that do not require proof of
actual bias.  Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252,
2263 (2009).  In pursuit of this end, various situations have been identified
in which experience teaches that the probability of actual bias on the part of
the judge or decisionmaker is too high to be constitutionally tolerable.  Withrow
v. Larkin, 421 U.S. 35, 47 (1975).  A judge is constitutionally
unacceptable when:  (1) the judge has a direct personal, substantial, and
pecuniary interest in the outcome of the case; (2) the judge has been the
target of personal abuse or criticism from the party before him; or (3) the
judge has the dual role of investigating and adjudicating disputes and
complaints.  Bigby v. Dretke, 402 F.3d 551, 559 (5th Cir. 2005).
            In addition, the United States
Supreme Court has noted that “predispositions developed during the course of a
trial will sometimes (albeit rarely) suffice” to establish judicial bias.  Liteky
v. United States, 510 U.S. 540, 554 (1994).  “[O]pinions formed by the
judge on the basis of facts introduced or events occurring during the course of
the current proceedings, or prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.”  Id. at 555.  “[J]udicial
remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.”  Id.  “They may do so if they
reveal an opinion that derives from an extrajudicial source; and they will do
so if they reveal such a high degree of favoritism or antagonism as to make
fair judgment impossible.”  Id.  “Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women, even . . .
judges, sometimes display.”  Id. at 555-56.  “A judge’s ordinary efforts
at courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune.”  Id. at 556.
2.
Discussion
 Applying the principles set
forth above to the facts of this case, we note that appellant has not alleged
that Judge Luitjen was constitutionally unacceptable because he has: (1) a
direct personal, substantial, and pecuniary interest in the outcome of the
case; (2) been the target of personal abuse or criticism from the party before
him; or (3) the dual role of investigating and adjudicating disputes and
complaints.  See Bigby, 402 F.3d at 559.  Appellant’s challenge
to Judge Luitjen is based solely on allegations that the judge displayed bias in
the courtroom.  Specifically, appellant argues that Judge Luitjen displayed
bias through “any number of nuances from the judge’s tone of voice, demeanor,
facial expressions, attitude, conduct and words, none of which in and of
themselves were necessarily independently objectionable, let alone reflected in
the cold appellate record.”  Appellant’s
Brief at 15-16, n. 61.  Appellant has not alleged that the bias arose
from or was influenced by an extrajudicial source.  See Liteky,
510 U.S. at 554-55.  Thus, under these circumstances, appellant was required to
prove that the judge’s behavior “reveal[ed] such a high degree of favoritism or
antagonism as to make fair judgment impossible.”  Id. at 555.  Appellant
has not met this burden.
As a preliminary matter, we
are confronted by the inherent limitations of the appellate record, which as
appellant correctly observes, ordinarily does not reflect the trial judge’s
tone of voice, demeanor, and facial expressions.  While in most cases there might
be no reason to build a record of such things, it is certainly possible for
counsel to make an objection to the inappropriateness of a judge’s tone of
voice, demeanor, or facial expression.  Lankston v. State, 827 S.W.2d
907, 909 (Tex. Crim. App. 1992) (“As regards specificity [of an objection], all
a party has to do to avoid the forfeiture of a complaint on appeal is to let
the trial judge know what he wants, why he thinks himself entitled to it, and
to do so clearly enough for the judge to understand him at a time when the
trial court is in a proper position to do something about it.”).  Furthermore,
in an extreme case such as this, where these subtleties are asserted as grounds
for a new trial, a timely and specific objection would have alerted the trial
court to the issue, created a record of what took place, and ensured the issue
was preserved for appellate review.  See Tex. R. App. P. 33.1(a)(1) (“As prerequisite to presenting a
complaint for appellate review, the record must show that the complaint was
made to the trial court by a timely request, objection, or motion . . . .”).  
According to appellant,
there was no need to object because none of the allegedly improper aspects of
the judge’s courtroom conduct—i.e., the judge’s tone of voice, demeanor, and
facial expressions—were independently objectionable.  Appellant’s Brief at 15-16, n. 61.  Thus, while appellant
maintains that Judge Luitjen did nothing inappropriate to warrant even a single
objection, appellant argues that the various nuances in the judge’s courtroom
behavior worked together to create a “synergistic effect” that deprived
appellant of due process of law.  Furthermore, appellant argues that because
the plurality opinion in Blue held that “the comments of the trial
judge, which tainted appellant’s presumption of innocence in front of the
venire, were fundamental error of constitutional dimension and required no
objection,” it was not necessary for him to make any objections to preserve
this issue for appeal.  Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim.
App. 2000) (plurality op.). 
In Blue, the trial
judge made specific comments that “imparted information to the venire that
tainted the presumption of innocence.”  Id. at 132.  The jury learned
“at the outset that the defendant seriously considered entering into a plea
agreement . . . [and] hear[d] the judge say that he would have preferred that
the defendant plead guilty.”  Id.  The judge “also blamed [the
defendant] for the delay that was costing the venire time and money.”  Id.
at 138 (Keasler, J., concurring).  The Texas Court of Criminal Appeals held
that the judge’s comments “vitiated the presumption of innocence before the
venire, adversely affecting appellant’s right to a fair trial.”  Id. at
132.  Specifically, by disclosing that the defendant had given serious
consideration to a plea agreement, the judge’s comments precluded the jury from
beginning with a presumption that the defendant was innocent.  Id.  In
addition, by telling the jury that “he would have preferred that the defendant
plead guilty,” the judge provided a basis on which a juror “might assume that
the judge knows something about the guilt of the defendant that the juror does
not.  Surely, no trial judge would want an innocent man to plead guilty, no
matter how much delay and expense he might be causing.”  Id.  
Unlike Blue, this is
not one of the “few cases where the judge’s statements when viewed objectively
are so egregious as to render him biased.”  Blue, 41 S.W.3d at 138
(Keasler, J., concurring).  In fact, appellant has not directed our attention
to any comment by the trial judge that allegedly tainted the presumption of
innocence.  While the record in Blue included the judge’s statements,
there is no comparable record in this case for the Court to conduct an
objective review.  As appellant concedes in his brief, “at least the judge’s
words (in Blue) were on the record and capable of being raised on
appeal, whereas Judge Luitjen’s actions, tone of voice, demeanor, facial
expressions, attitude and conduct during trial are not reflected by the cold
appellate record . . . .”  Appellant’s
Brief at 20 n.71.
At the hearing on
appellant’s motion for new trial, appellant did not call any witnesses, but he
did present evidence that included affidavits from seven of the jurors who
served on the case.  See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim.
App. 2009) (“[T]he opportunity to prepare a record for appellate review makes a
hearing on a motion for new trial a critical stage. . . . ”).  In the
affidavits, each of the jurors expressed an opinion that based on what he or she
had observed in the courtroom, the trial judge was biased against appellant and
his counsel.  In addition to the “nuances” previously discussed, such as the
judge’s tone of voice and facial expressions, the juror affidavits noted that
the judge “seemed to rule against the defense team and for the prosecution team
when ruling on all of the objections,” “seemed to rush the defense,” “seemed as
if he . . . was not listening when the defense put on some of their witnesses,”
and “appeared bothered when the defense’s witnesses from Mexico testified
because of their lack of knowledge of the English language and the translation
problems that this caused.”  While appellant acknowledges “the absence of Texas
criminal cases directly on point,” he maintains that the juror affidavits are
sufficient to prove beyond a reasonable doubt that Judge Luitjen was biased.  Appellant’s Brief at 19.[6]   We disagree.
Bias by an adjudicator is
not lightly established.  Valley v. Rapides Parish Sch. Bd., 118 F.3d
1047, 1052 (5th Cir. 1997); United States v. Guglielmini, 384 F.2d 602,
605 (2d Cir. 1967) (“Few claims are more difficult to resolve than the claim
that the trial judge, presiding over a jury trial, has thrown his weight in
favor of one side to such an extent that it cannot be said that the trial has
been a fair one.”).  Although seven jurors stated their opinion that Judge
Luitjen was biased, none explained what he or she understood “bias” to mean. 
That each of the jurors shared the same understanding remains an open question;
however, it is clear that the jurors did not share a correct understanding.  
In their affidavits, each of
the jurors articulated one or more invalid reasons for concluding that Judge
Luitjen was biased.  For instance, many of the jurors offered Judge Luitjen’s
evidentiary rulings as a reason for believing that he was biased against
appellant, but judicial rulings almost never constitute a valid basis for a
bias or partiality challenge.  See Liteky, 510 U.S. at 555; Sommers
v. Concepcion, 20 S.W.3d 27, 41 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (“A party’s remedy for unfair rulings is to assign error regarding the
adverse rulings.”).  Another inappropriate reason cited by many of the jurors
was that Judge Luitjen “seemed to rush the defense” and “seemed as if he . . .
was not listening” or “appeared bothered when the defense’s witnesses from
Mexico were testifying.”  These observations pertain to Judge Luitjen’s efforts
at courtroom administration, which are not a valid basis for finding judicial
bias, even if they displayed or included “expressions of impatience,
dissatisfaction, annoyance, and even anger.”  Liteky, 510 U.S. at
555-56.  
After eliminating from
consideration the invalid grounds for finding judicial bias in the juror
affidavits, it is unclear whether any of the jurors would conclude that Judge
Luitjen was biased.  If so, any such conclusion would rest on the same
subtleties in the judge’s courtroom behavior to which appellant failed to
object at trial.   It is well established that subtleties and nuances in a
judge’s behavior—even those manifesting animosity—are insufficient to establish
bias.  Liteky, 510 U.S. at 556 n.3 (“When intrajudicial behavior is at
issue, manifestations of animosity must be much more than subtle to establish
bias.”). Accordingly, appellant’s first and second issues are overruled.  
E.
Rights to a Reliable Jury Verdict and Effective Assistance of Counsel
            In issues three and four,
appellant argues that Judge Luitjen’s bias violated his rights to a reliable
jury verdict and effective assistance of counsel.  In addressing appellant’s
first and second issues, we have concluded that appellant has failed to
establish judicial bias.  Accordingly, because appellant’s third and fourth
issues are premised on the existence of judicial bias, those issues are
overruled.  
F.
Violation of Article 38.05 of the Texas Code of Criminal Procedure
  In issue five, appellant
argues that Judge Luitjen’s bias violated article 38.05 of the Texas Code of
Criminal Procedure.  See Tex.
Code Crim. Proc. Ann. art. 38.05 (“In ruling upon the admissibility of
evidence, the judge shall not discuss or comment upon the weight of the same or
its bearing in the case, but shall simply decide whether or not it is
admissible. . . . [N]or shall [a judge], at any stage of the proceeding
previous to the return of the verdict, make any remark calculated to convey to
the jury his opinion of the case.”).  
As noted above, appellant
has not complained about any specific remark that the judge made that was
calculated to convey to the jury his opinion of the case.  Nor has appellant
identified any instances in which, in ruling on the admissibility of evidence, the
judge discussed or commented on the weight of the evidence or its bearing in
the case.  See Most Worshipful Prince Hall Grand Lodge v. Jackson,
732 S.W.2d 407, 412 (Tex. App.—Dallas 1987, writ ref'd n.r.e.) (en banc) (“This
court is not required to search the record for evidence supporting a litigant’s
position under particular points of error . . . .”).  Furthermore, there is no
indication that appellant objected to any improper comments that the trial
judge may have made.  See Smith v. State, 595 S.W.2d 120, 124
(Tex. Crim. App. 1980) (“Failure to object to this alleged comment preserves
nothing for review.”).  
On this record, we have no
basis to conclude that the trial judge did anything other than carry out its
duties involving courtroom administration and ruling upon the admissibility of
evidence.  See Smith, 595 S.W.2d at 123-24 (“The court merely
carried out its duty in ruling upon appellant’s objection and did not embellish
the ruling with an unwarranted comment.”); Simon v. State, 203 S.W.3d
581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“The trial court
improperly comments on the weight of the evidence if it makes a statement that
implies approval of the State’s argument, indicates disbelief in the defense’s
position, or diminishes the credibility of the defense’s approach to the
case.”).  There is no basis for finding reversible error.  See Becknell
v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986) (“To constitute
reversible error, the trial court’s comment to the jury must be such that it is
reasonably calculated to benefit the State or to prejudice the rights of the
defendant.”).  Accordingly, appellant’s fifth issue is overruled.
G.
Conclusion
In issue six, appellant
contends that the trial court abused its discretion in denying his motion for
new trial based on the allegations of judicial bias discussed in issues one
through five.  We have overruled issues one through five because appellant has
not established judicial bias.  Accordingly, we conclude that the trial court
did not abuse its discretion in denying appellant’s motion for new trial. 
Appellant’s sixth issue is overruled.  
IV.
Jury Charge Error
            In issues seven through nine,
appellant complains of errors in the jury charge involving the culpable mental
state required in the application paragraphs, the omission of a requested
instruction on the defensive issue of mistake of fact, and the inclusion of
“foreign legal consultant” in the charge definition of “good standing with the
State Bar of Texas.”    
A.  
Standard of Review and Applicable Law
Article 36.14 of the Texas Code
of Criminal Procedure requires that a trial court provide a jury charge
“distinctly setting forth the law applicable to the case.”  Tex. Code Crim. Proc. art 36.14 (West
2007).  The charge must contain an accurate statement of the law and must set
out all the essential elements of the offense.  Dinkins v. State, 894
S.W.2d 330, 339 (Tex. Crim. App. 1995).  A jury charge is fundamentally
defective if it omits an essential element of the offense or authorizes
conviction on a set of facts that do not constitute an offense.  Zuckerman
v. State, 591 S.W.2d 495, 496 (Tex. Crim. App. 1979).
The standards for appellate
review of error in the court’s charge are set forth in article 36.19 of the Texas
Code of Criminal Procedure.  See Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006).  When a defendant properly
objected to the charge, the applicable statutory standard is whether “the error
appearing from the record was calculated to injure the rights of the
defendant,” or in other words, whether there was “some harm.”  Trevino v.
State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003).  
“[U]nobjected-to jury-charge
error warrants reversal only when the error results in egregious harm.”  Pickens
v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).  “Egregious harm is a
difficult standard to prove and such a determination must be done on a
case-by-case basis.”  Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996).  Under this standard, reversible error occurs only when a defendant
has been denied “a fair and impartial trial.”  Oursbourn v. State, 259
S.W.3d 159, 182 (Tex. Crim. App. 2008).  “Jury-charge error is egregiously
harmful if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory.”  Stuhler v. State,
218 S.W.3d 706, 719 (Tex. Crim. App. 2007).  An appellate court “makes its own
assessment” in evaluating what effect, if any, an error had on the jury’s
verdict by looking “only to the record before it.”  Ovalle v. State, 13
S.W.3d 774, 787 (Tex. Crim. App. 2000).  Our review for egregious harm requires
consideration of the entire charge, the evidence including the contested issues
and weight of the probative evidence, the arguments of counsel, and any other
relevant information revealed by the record of the trial as a whole.  Scott
v. State, 253 S.W.3d 736, 742 (Tex. App.—Amarillo 2007, pet. ref’d).  The
record must show the defendant suffered actual, rather than merely theoretical,
harm from the jury instruction error.  Almanza v. State, 686 S.W.2d 157,
174 (Tex. Crim. App. 1985) (op. on reh’g).  
B.  
Culpable Mental State for the Offense
In issue seven, appellant
argues that the trial court erred in denying his proposed application
paragraphs for the jury charge, which contained the following language:
Now, if you find from
the evidence beyond a reasonable doubt that on or about [date], in Nueces
County, Texas, the Defendant, Mauricio Celis, intentionally did then and there,
with intent to obtain an economic benefit for himself, hold himself out as a
lawyer, to wit: [by manner and means], and the defendant was not then and there
licensed to practice law in this state, another state, or a foreign country and
was not then and there in good standing with the State Bar of Texas and the
state bar or licensing authority of any state or foreign country where the
defendant was licensed to practice law, then you will find the defendant guilty
of the offense of falsely holding himself out as a lawyer as charged in the
indictment.
 
The jury charge submitted by the court did
not include the word “intentionally” in the application paragraphs; however,
the charge did require the jury to find that appellant acted “with intent to
obtain an economic benefit for himself.”  
            Appellant argues that because the
statutory definition of the offense is silent on the requirement of a culpable
mental state, but does not plainly dispense with a mental element, the trial
court was required to submit a culpable mental state.  See Tex. Penal Code Ann. § 6.02(b) (West Supp. 2010) (stating if
definition of offense “does not prescribe a culpable mental state,” a culpable
mental state “is nevertheless required unless the definition plainly dispenses
with any mental element”); Sanchez v. State, 209 S.W.3d 117, 122 n.38
(Tex. Crim. App. 2006) (“The failure to instruct the jury to find every
necessary culpable mental state constitutes jury-charge error.”); Cook v.
State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (holding “in order to
constitute a crime, the act or actus reus must be accompanied by a criminal
mind or mens rea”). 
We are not persuaded that
the statutory definition of the offense is silent on the requirement of a
culpable mental state.  See Aguirre v. State, 22 S.W.3d 463, 472 (Tex.
Crim. App. 1999) (“[A] court must look for a manifest intent to dispense with
the requirement of a culpable mental state, and . . . the silence of a statute
about whether a culpable mental state is an element of the offense leaves a
presumption that one is.”).  The statutory definition of the offense includes
the specific “intent to obtain an economic benefit for himself.”  Tex. Penal Code Ann. § 38.122(a).  In
the context of other statutory offenses, the inclusion of this type of specific
intent requirement in the definition of the offense has been interpreted as
satisfying the traditional mens rea requirement of the criminal law.  See Ex
parte Smith, 645 S.W.2d 310, 312 (Tex. Crim. App. 1983) (“[T]he definition
[of theft] requires a specific intent ‘to deprive the owner of property.’ No
doubt the Legislature was satisfied that its definition met the traditional
mens rea requirement of the criminal law.”); McKenzie v. State, 617
S.W.2d 211, 213 (Tex. Crim. App. 1981) (“An essential element of the offense of
indecency with a child is the mental state that accompanies the forbidden
conduct: the specific intent to arouse or gratify the sexual desire of any
person.”); State v. Sandoval, 842 S.W.2d 782, 788 (Tex. App.—Corpus
Christi 1992, pet. ref’d) (“The culpability required under the [barratry]
statute is the intent ‘to obtain an economic benefit.’”).  
  In cases involving specific-intent
offenses, courts have held that the jury charge should include only the
specific intent required by the statute and that a jury charge is erroneous if
it includes the general standards for mens rea such as intentionally or
knowingly.  See Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort
Worth 2010, pet. ref’d) (“Moreover, the charge included the required specific
intent to arouse or gratify in the application portion, along with the
erroneous ‘intentionally and knowingly’ language.”); Jones v. State, 229
S.W.3d 489, 492 (Tex. App.—Texarkana 2007, no pet.) (finding error when charge
“stated that indecency with a child is committed if the person intentionally or
knowingly engages in sexual contact with a child”); Washington v. State,
930 S.W.2d 695, 699-700 (Tex. App.—El Paso 1999, no pet.) (“Section 21.11(a)(1)
and Section 21.01(2) specify the culpable mental state that must be applied to
the conduct, namely, the specific intent to arouse or gratify sexual desire.  Thus,
it seems superfluous to provide any definition of ‘intentionally’ in the jury
charge.”).  In a case involving the barratry statute, which also requires the
specific intent “to obtain an economic benefit,” we have previously held that
“no additional mental state must be alleged or proved.”  See Sandoval,
842 S.W.2d at 789.
            In this case, the application
paragraphs submitted in the jury charge tracked both the language of the
indictments and the statutory definition of the offense.  See Casey
v. State, 215 S.W.3d 870, 886-87 (Tex. Crim. App. 2007) (“The charge here
set forth the law applicable to the case by tracking the language of the
statute.”); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App.
1996) (“Following the law as it is set out by the Texas Legislature will not be
deemed error on the part of a trial judge.”); Riddle v. State, 888
S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge which tracks the language of
a particular statute is a proper charge on the statutory issue.”).  Furthermore,
the jury charge is consistent with our decision in a case involving the
barratry statute, where we held that no additional mental state must be alleged
or proved beyond the specific intent to obtain an economic benefit.  See
Sandoval, 842 S.W.2d at 789; see also Delgado v. State,
235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (“The purpose of the jury charge, of
course, is to inform the jury of the applicable law and guide them in its
application to the case.”).  Accordingly, we conclude that the trial court did
not err in refusing to submit the application paragraphs proposed by appellant.
 See Tovar v. State, 165 S.W.3d 785, 792 (Tex. App.—San Antonio 2005, no
pet.) (“Specifically requested charges may be refused where the instructions
given by the court are adequate and fully protect the rights of the accused.”);
McAfee v. State, 658 S.W.2d 200, 200 (Tex. App.—El Paso, 1983 no writ)
(“[S]pecific intent was both pled and charged and such a state of mind
necessarily entails an entry that is made either intentionally or knowingly.”). 

Appellant’s seventh issue is
overruled.
C.  
Mistake of Fact
In issue eight, appellant
argues that the trial court erred in denying his requested jury instruction on
mistake of fact.  The general defense of mistake of fact, as codified in
section 8.02(a) of the Texas Penal Code, provides: “It is a defense to
prosecution that the actor through mistake formed a reasonable belief about a
matter of fact if his mistaken belief negated the kind of culpability required
for the commission of the offense.”  Tex.
Penal Code Ann. § 8.02(a) (West 2003).  
When an accused creates an
issue of mistaken belief as to the culpable mental element of the offense, he
is entitled to a defensive instruction of “mistake of fact.”  Miller v.
State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991); see also Granger
v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (“Therefore, in the
instant case, the issue before the trial court was whether appellant’s
purported belief, if accepted as true, negated the culpability required for
murder.”).  When evidence from any source raises a defensive issue, and the
defendant properly requests a jury charge on that issue, the trial court must
submit the issue to the jury.  Trevino, 100 S.W.3d at 237.  The evidence
which raises the issue could be “strong, weak, contradicted, unimpeached, or
unbelievable.”  Id.  An appellate court’s duty is to look at the
evidence supporting that charge, not the evidence refuting it.  Id. at
239.  This rule is designed to insure that the jury, not the judge, will decide
the relative credibility of the evidence.  Miller, 815 S.W.2d at 585. 
Absent a proper request, the trial court does not err by failing to instruct
the jury on the defense of mistake of fact.  Posey v. State, 966 S.W.2d
57, 62 (Tex. Crim. App. 1998); see also Mays v. State, 318 S.W.3d
368, 383 (Tex. Crim. App. 2010) (“Because appellant failed to tell the trial
judge what specific fact he was mistaken about, he was not entitled to an
instruction on this defensive issue.”); Goodrich v. State, 156 S.W.3d
141, 147-48 (Tex. App.—Dallas 2005, pet. ref’d) (“When requesting an
instruction on the defense of mistake of fact, the party must specify the fact
alleged to have been mistaken.”).
Appellant requested an
instruction on mistake of fact that was based on his allegedly “reasonable
belief that he was licensed to practice law in Mexico and was in good standing
with the licensing authority in Mexico.”  To relate to a mistake of fact
defense under section 8.02(a), the mistaken belief must “negate[] the kind of
culpability required for the commission of the offense.”  Tex. Penal Code Ann. § 8.02(a).  Section
38.122(a) of the Texas Penal Code, which defines the relevant offense,
prescribes the culpable mental state as “intent to obtain an economic benefit.”
 Tex. Penal Code Ann. §
38.122(a).   Appellant’s alleged belief that he was licensed to practice law in
Mexico and in good standing with the licensing authority in Mexico does not negate
the culpable mental state to commit the offense.  Therefore, appellant was not
entitled to a mistake of fact instruction regarding his belief that he was
licensed to practice law in Mexico and in good standing with the licensing
authority in Mexico.  See Ingram v. State, 261 S.W.3d 749, 753 (Tex.
App.—Tyler 2008, no pet.) (“Appellant’s alleged belief that the structure was
abandoned did not relate to the culpable mental state to commit the offense. 
As such, Appellant was not entitled to a mistake of fact instruction regarding
his belief that the structure was not a habitation.”).  
We also note that in his
brief appellant has described his defense as “a reasonable belief that as a
foreign (Mexican) lawyer, he could lawfully hold himself out as a Mexican
lawyer [in Texas].”  Appellant’s Brief
at 30; see also id. at 48 (“Appellant’s position, in a nutshell, was
that he had a reasonable belief that he could hold himself out as a Mexican
lawyer in Texas.”).  Appellant complains that “[t]he jury [was] . . . not given
any vehicle in the jury charge whereby it could consider the defensive evidence
of whether appellant reasonably believed that he could hold himself out as a
Mexican lawyer in Texas.”  Id. at 29, n. 83. 
This defensive theory
concerns a mistake of law, not a mistake of fact.  The only mistake it involves
is the belief that it is lawful for a lawyer from Mexico to hold himself out as
a lawyer in Texas.  See Legere v. State, 82 S.W.3d 105, 109 (Tex.
App.—San Antonio 2001, pet. ref’d) (“Legere’s testimony, however, does not
raise a mistake of fact defense. The testimony only shows that Legere did not
believe that his conduct was illegal.  None of the offenses with which Legere
was charged required him to believe that his conduct was illegal.”); Vitiello
v. State, 848 S.W.2d 885, 887 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d) (holding defendant was not entitled to mistake of fact instruction
because, assuming defendant’s version was true, his only mistake was believing
his actions were not unlawful).  Appellant has not argued that he was entitled
to an instruction on mistake of law.  See Green v. State, 829 S.W.2d
222, 223 (Tex. Crim. App. 1992) (“Section 8.03(b) of the Texas Penal Code sets
forth two requirements which must be met before a defendant is entitled upon
request to a mistake of law defense instruction. First, the defendant must
establish that he reasonably believed that his conduct did not constitute a
crime. Second, the defendant must establish that he reasonably relied upon
either an administrative order or a written interpretation of the law contained
in an opinion of a court of record.”).
Appellant’s eighth issue is
overruled.
D.  
Foreign Legal Consultant
In issue nine, appellant
argues that the trial court erred in including “foreign legal consultant” in
the jury charge definition of “good standing with the State Bar of Texas.” 
Appellant argues that the court should have used the definition of “member in
good standing with the State Bar of Texas” provided in Article I, Section 6 of
the State Bar Rules.  See Tex.
State Bar Rules art. 1, § 6.[7]
We are not persuaded that
there was any error in the jury charge.  The jury charge used the definition of
“member in good standing with the State Bar of Texas” provided in Article I,
Section 6 of the State Bar Rules, which appellant agrees was correct.  Furthermore,
the inclusion of foreign legal consultant was consistent with the law and
supported by the evidence.  The Texas Supreme Court has the authority to promulgate
rules for the limited practice of law by attorneys licensed in other
jurisdictions.  See Tex. Gov’t
Code Ann. § 81.102(b)(1) (West 2005) (“The supreme court may promulgate
rules prescribing the procedure for limited practice of law by attorneys
licensed in another jurisdiction. . . .”); Rules
Governing Admission to the Bar of Tex.
XIV, § 3 (“A person certified to practice as a Foreign Legal Consultant
under this Rule may render legal services in Texas in the manner and to the
extent permitted by the jurisdiction in which such person is admitted to
practice. . . .”).  The Rules Governing Admission to the Bar of Texas,
including those providing for the limited practice of law by attorneys licensed
in other jurisdictions, have “the same effect as statutes.”  See Bd. of Law
Examiners v. Stevens, 868 S.W.2d 773, 776 (Tex. 1994).  
At trial, Josh Hensley, the
Director of Eligibility and Examination for the Texas Board of Law Examiners,
testified that a lawyer from another country, such as Mexico, can become
affiliated with the State Bar of Texas (without becoming a member) through
certification as a foreign legal consultant.  See Rules Governing
Admission to the Bar of Tex. XIV, § 1(a) (“In its discretion the Supreme
Court may certify to practice in Texas as a legal consultant . . . a member in
good standing of a recognized legal profession in a foreign country. . . .”), §
4 (“[A] person certified as a Foreign Legal Consultant under this Rule shall be
considered a lawyer affiliated with the Bar of Texas. . . .”).  According to
Hensley’s testimony, a foreign legal consultant is considered to be in good
standing with the State Bar of Texas.  See id. at § 5 (“A person certified
to practice as a Foreign Legal Consultant under this Rule shall be subject to
professional discipline in the same manner and to the same extent as persons
admitted to the Texas Bar . . . .”).  Thus, appellant is incorrect in his assumption
that only members of the State Bar of Texas are capable of being in good
standing with the bar.
We also disagree with
appellant’s assertion that the inclusion of foreign legal consultant afforded
the jury with an improper basis upon which to find him guilty.  On the
contrary, it precluded the jury from finding appellant guilty based solely on
his lack of membership in the State Bar of Texas.  As submitted by the court,
the jury charge allowed the jury to find that appellant was in good standing
with the State Bar of Texas if he was either:  (1) a member in good standing;
or (2) affiliated as a foreign legal consultant.  If foreign legal consultant
had been omitted from the jury charge as appellant requested, the jury would
have been allowed to find that appellant was in good standing with the State Bar
of Texas only if he was a member.  This would have been contrary to the plain
meaning of the statute, which requires good standing with the State Bar of
Texas, but not membership.  See Tex.
Penal Code Ann. § 38.122(a) (no offense occurs if person “is currently
licensed to practice law in this state, another state, or a foreign country and
is in good standing with the State Bar of Texas”); Ex parte Manrique, 40
S.W.3d 552, 554 (Tex. App.—San Antonio 2001, no pet.) (“Lawyers licensed in
other states are also clearly excluded from prosecution so long as they are in
good standing with the State Bar of Texas and their own licensing bar or
authority.”); see also Lomax v. State, 233 S.W.3d 302, 308 (Tex.
Crim. App. 2007) (“Where the statute is clear and unambiguous, the Legislature
must be understood to mean what it has expressed and it is not for the courts
to add to or subtract from such statute.”).
Appellant’s ninth issue is
overruled.   
V. Constitutionality of Texas Penal Code Section 38.122
In issues ten through
thirteen, appellant challenges the constitutionality of section 38.122 of the
Texas Penal Code based on vagueness and overbreadth.  
A.  
Standard of Review and Applicable Law
The burden rests upon the
person who challenges a statute to establish its unconstitutionality.  Kfouri
v. State, 312 S.W.3d 89, 92 (Tex. App.—Houston [14th Dist.] 2010, no
pet.).  In determining whether a law is vague or overbroad, we keep in mind the
elementary principles of statutory construction: we interpret a statute in
accordance with the plain meaning of its language unless the language is
ambiguous or the plain meaning leads to absurd results.  Sanchez v. State,
995 S.W.2d 677, 683 (Tex. Crim. App. 1999).  In determining plain meaning,
“words and phrases shall be read in context and construed according to the
rules of grammar and usage.”  Tex. Gov’t
Code Ann. § 311.011(a) (West 2005); see Tex. Penal Code Ann. § 1.05(b) (West 2003) (extending
application of section 311.011 to penal code).  If a statute can be construed
in two different ways, one of which sustains its validity, we apply the
interpretation that sustains its validity.  See State v. Carmaco, 203
S.W.3d 596, 599 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
“A facial challenge to a
legislative act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the act would be valid.”  Briggs v. State, 789 S.W.2d
918, 923 (Tex. Crim. App. 1990); State v. Garcia, 823 S.W.2d 793, 796-97
(Tex. App.—San Antonio 1992, pet. ref’d).  In a facial challenge to the
overbreadth and vagueness of a law, a court’s first task is to determine
whether the enactment reaches a substantial amount of constitutionally
protected conduct.  Garcia, 823 S.W.2d at 797 (citing Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95
(1982)).  If it does not, then the overbreadth challenge must fail.  Id. 
The court should then examine the facial vagueness challenge and, assuming the
enactment implicates no constitutionally protected conduct, should uphold the
challenge only if the enactment is impermissibly vague in all of its
applications.  Id. 
B.  
Facial Challenge to the Overbreadth of Section 38.122 
In issue twelve, appellant
argues that section 38.122 of the Texas Penal Code is unconstitutionally
overbroad on its face.[8] 
The justification for the application of overbreadth analysis applies weakly,
if at all, in the ordinary commercial context.  Garcia, 823 S.W.2d at
797 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977)). 
“Where, as here, the regulation of the commercial enterprise, the practice of law,
is a subject of legitimate and substantial government interest, the mere fact
that regulation has an incidental impact on speech is not sufficient to render
the statute invalid.”  Ex parte Manrique, 40 S.W.3d 552, 553 (Tex.
App.—San Antonio 2001, no pet.).  Thus, the San Antonio Court of Appeals has
previously upheld the constitutionality of section 38.122, concluding that the
“statute affects only commercial speech in the context of employment as a
lawyer . . . [and] therefore . . . is not facially overbroad.”  Id. at
554.
Lawyer advertising is the
focus of appellant’s facial challenge to the overbreadth of the statute. 
According to appellant, while “it makes perfect sense” for the State of Texas
to regulate lawyer advertising “in the context of a lawyer licensed by the
State Bar of Texas, it makes absolutely no sense in the context of a lawyer
from another state or another country.”  Appellant’s
Brief at 63.  Appellant contends that the statute will “totally
eliminate advertising by out of state and out of country lawyers in Texas.”  Id. 

We are not persuaded that
section 38.122 involves anything other than the regulation of commercial
speech, a context in which the overbreadth analysis applies weakly, if at all. 
Garcia, 823 S.W.2d at 797.  The United States Supreme Court has refused
to apply an overbreadth analysis to lawyer advertising.  See Bates, 433
U.S. at 381.  Relying on the Bates decision and other precedent, this
Court has previously refused to apply an overbreadth analysis to the Texas
barratry statute.  See Sandoval, 842 S.W.2d at 786-87.  
In this case, we note that the
State of Texas has a compelling interest in regulating the commercial speech of
individuals (even those from other states or countries) who hold themselves out
as lawyers in Texas and such regulations are for the benefit and protection of
the people as a whole.  See Sperry v. Florida, 373 U.S. 379, 383
(1963) (recognizing that a state has a “substantial interest in regulating the
practice of law within the State”); Hexter Title & Abstract Co. v.
Grievance Comm., 179 S.W.2d 946, 948 (Tex. 1944) (“The State has a vital
interest in the regulation of the practice of law for the benefit and
protection of the people as a whole.”).  Accordingly, we join the San Antonio
Court of Appeals in holding that section 38.122 is not facially overbroad.  
Appellant’s twelfth issue is
overruled. 
C.  
Challenge to the Overbreadth of Section 38.122 as Applied
to Appellant
 In issue thirteen,
appellant argues that section 38.122 of the Texas Penal Code is
unconstitutionally overbroad as applied to him.  Appellant argues that his
First Amendment rights were violated by his convictions on count 2 (“stating on
a business card that he was licensed in Mexico”) and count 5 (“being described
on a business webpage as an attorney at law, and a licensed attorney in
Mexico”) in Cause No. 07-CR-4046-E.  
The fact that the
enforcement of a statute operates to prohibit and restrain freedom of speech
does not itself mean that the statute is invalid.  See Allen v. State,
604 S.W.2d 191, 192 (Tex. Crim. App. 1980).  The overbreadth doctrine is
“strong medicine” that should be employed “sparingly” and “only as a last
resort.”  Ex parte Ellis, 309 S.W.3d 71, 91 (Tex. Crim. App. 2010).  “[T]he
overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.”  Id. (citing Broadrick
v. Oklahoma, 413 U.S. 601, 615, (1973)).  The statute must be “closely
drawn to match a sufficiently important interest.”  Id.  
The constitutional
guarantees of freedom of speech forbid the States to punish the use of words or
language not within narrowly limited classes of speech.  See Morehead v. State,
807 S.W.2d 577, 580 (Tex. Crim. App. 1991) (citing Gooding v. Wilson,
405 U.S. 518, 521-522 (1972)).  Even as to such classes, “the statute must be
carefully drawn or be authoritatively construed to punish only unprotected
speech.”  Id.  For example, the states may, by narrowly drawn statutes,
prohibit obscenity, id. (citing Roth v. United States, 354 U.S.
476 (1957)), child pornography, id. (citing New York v. Ferber,
458 U.S. 747 (1982)), “fighting words,” id. (citing Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942)), and the incitement to imminent lawless
activity, id. (citing Brandenburg v. Ohio, 395 U.S. 444 (1969)).  On
the other hand, the states may not criminalize speech that is merely insulting,
id. (citing Gooding, 405 U.S. at 518) or speech that opposes or
challenges police action, id. (citing Houston v. Hill, 482 U.S.
451 (1987)).  “Speech is often provocative and challenging . . . [But it] is
nevertheless protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest.”  Id. (quoting Terminiello
v. Chicago, 337 U.S. 1, 4 (1949)).
            In overruling appellant’s facial
challenge to the overbreadth of section 38.122, we have concluded that the
statute affects only commercial speech in the context of employment as a
lawyer.  See Ex parte Manrique, 40 S.W.3d at 553.   We see no
reason for reaching a different conclusion in addressing appellant’s challenge
to the overbreadth of the statute as applied to him.  See Village of
Hoffman Estates, 455 U.S. at 496 (“[T]he overbreadth doctrine does not
apply to commercial speech.”).  In the context of the Texas barratry statute,
the Texas Supreme Court has held that a lawyer who paid non-lawyers to solicit
remunerative employment for himself was not exercising any rights to free
expression.  See O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 403
(Tex. 1988).  The Texas Court of Criminal Appeals has also rejected the
contention that the barratry statute “is unconstitutional because it imposes a
limitation on the right of free speech.”  Barbee v. State, 432 S.W.2d
78, 85 (Tex. Crim. App. 1968).  In this case, appellant was not convicted because
he engaged in expressive activity protected by the First Amendment, but because
he falsely held himself out as a lawyer with the intent to obtain an economic
benefit for himself.  See Clark v. State, 665 S.W.2d 476, 482 (Tex.
Crim. App. 1984) (“[I]ntentionally false or misleading statements made in a
commercial context are not within the protection of the First Amendment.”); Covalt
v. State, 877 S.W.2d 445, 448 (Tex. App.—Houston [1st Dist.] 1994, no pet.)
(“Lying under oath is not a constitutionally protected activity.”).  Even assuming
appellant’s conduct did not involve purely commercial speech and that the
overbreadth doctrine were therefore applicable to section 38.122 of the Texas
Penal Code, the statute’s prohibition against falsely holding oneself out as a
lawyer is substantially related to legitimate state interests in regulating the
practice of law in Texas.  See O'Quinn, 763 S.W.2d at 403 (“[A] ban on
in-person solicitation by lawyers and/or their runners is substantially related
to legitimate state interests.”).  
Appellant’s thirteenth issue
is overruled.  
D.  
Facial Challenge to the Vagueness of Section 38.122 
In issue ten, appellant
argues that section 38.122 of the Texas Penal Code is unconstitutionally vague
on its face.  
“As a fundamental
proposition, all criminal laws must give notice to the populace as to what
activity is made criminal so as to provide fair notice to persons before making
their activity criminal.”  Bynum v. State, 767 S.W.2d 769, 773 (Tex.
Crim. App. 1989).  “The rationale for this is obvious:  crimes must be defined
in advance so that individuals have fair warning of what is forbidden.”  Id. 
A lack of notice poses a “trap for the innocent” and violates due process.  Id.
(citing United States v. Cardiff, 344 U.S. 174, 176 (1952)).
The standard used to decide
a challenge to the vagueness of a statute varies depending on whether or not the
First Amendment is involved.  If First Amendment freedoms are implicated, a
criminal law must:  (1) be sufficiently clear to afford a person of ordinary
intelligence a reasonable opportunity to know what is prohibited; (2) establish
determinate guidelines for law enforcement; and (3) be sufficiently definite to
avoid chilling protected expression.  Ex parte Ellis, 309 S.W.3d at 86. 
When a vagueness challenge involves First Amendment considerations, a criminal
law may be held facially invalid even if the law has some valid application.  Id.;
see also Long v. State, 931 S.W.2d 285, 288 (Tex. Crim. App. 1996)
(“When a vagueness challenge involves First Amendment concerns, the statute may
be held facially invalid even though it may not be unconstitutional as applied
to the appellant’s conduct.”).  
If the First Amendment is
not involved, a facial vagueness challenge can succeed only if it is shown that
the law is unconstitutionally vague in all of its applications.  Ex parte
Ellis, 309 S.W.3d at 80.   In such cases, vagueness is determined based on
the standards of the Due Process Clause, which require that a law be specific
enough to:  (1) give a person of ordinary intelligence a reasonable opportunity
to know what is prohibited; and (2) establish determinate guidelines for law
enforcement.  Sanchez, 995 S.W.2d at 690.  
In determining the threshold
issue of whether “the statute, as authoritatively construed, is susceptible of
application to speech guaranteed by the First Amendment,” we note that
commercial speech is subject to constitutional protection, though less than the
protection afforded to other forms of constitutionally guaranteed expression.  Scott
v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim. App. 2010); see also Pruett
v. Harris County Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008)
(“Commercial speech is generally afforded less constitutional protection than
other forms of constitutionally guaranteed expression.”).  For commercial
speech to come within the provision of the First Amendment, “it at least must
concern lawful activity and not be misleading.”  Cent. Hudson Gas &
Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980).  Section
38.122 of the Texas Penal Code makes it an offense to falsely hold oneself out
as a lawyer, activity which takes place in the commercial context and
necessarily involves expressions of a false and misleading nature which are not
protected by the First Amendment.  See Knight v. State, 91 S.W.3d 418,
425 (Tex. App.—Waco 2002, no pet.) (“Speech is not protected by the First
Amendment when it is the very vehicle of the crime itself.”).  Accordingly, we
conclude that section 38.122 does not broadly prohibit speech protected by the
First Amendment and that appellant’s vagueness challenge does not fall within
the limited exception under which a criminal law may be held facially invalid
even if it has some valid application.   See Santikos v. State,
836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (“A limited exception has been
recognized for statutes that broadly prohibit speech protected by the First
Amendment.”).   
            Appellant has the burden to
establish that section 38.122 of the Texas Penal Code is unconstitutionally
vague in all of its applications.  See Ex parte Ellis, 309 S.W.3d
at 80.  Appellant’s arguments concern the vagueness of the statute as it
applies to individuals who are licensed to practice law in states other than
Texas and foreign countries.  According to appellant, the statute is
unconstitutionally vague on its face because it fails to define the terms
“lawyer” and “in good standing with the State Bar of Texas.”  Appellant
contends that the vagueness of the term “lawyer” prevents a person from out of
state or a foreign country “from ascertain[ing] whether he or she falls within
Texas’ definition of ‘lawyer,’ whatever that might be, if in fact one exists.” 
Appellant’s Brief at 67.  As a
result, “an attorney licensed in another state or a foreign country would not
be on fair notice that his or her acts of representing himself or herself in
Texas as an attorney from that other state or country would be illegal unless
he or she was . . . ‘in good standing with the State Bar of Texas.’”  Id.
at 68.  In addition, there is no fair notice that a person must be licensed to
practice law in Texas in order to be in good standing with the State Bar of
Texas.  See id.
            Appellant has not attempted to
show that section 38.122 of the Texas Penal Code is unconstitutionally vague as
it applies to lawyers currently or formerly licensed to practice law in Texas
or other persons in Texas who are not lawyers.  As such, appellant has failed
to meet his burden of establishing that the statute is unconstitutionally vague
in all of its applications.  See Ex parte Ellis, 309 S.W.3d at
80.   Appellant’s tenth issue is overruled.  
E.  
Challenge to the Vagueness of Section 38.122 as Applied
to Appellant
In issue eleven, appellant
argues that section 38.122 of the Texas Penal Code is unconstitutionally vague
as applied to him.  Appellant’s argument is based on the failure of the statute
to define the terms “lawyer” and “in good standing with the State Bar of
Texas.”  According to appellant, the statute failed to give him fair notice
that it was unlawful to hold himself out as a lawyer in Texas unless he was
licensed to practice law in Texas and in good standing with the State Bar of
Texas.[9] 

The relevant inquiry is
whether section 38.122 of the Texas Penal Code: (1) gives a person of ordinary
intelligence a reasonable opportunity to know what is prohibited; and (2)
establishes determinate guidelines for law enforcement.  See Sanchez,
995 S.W.2d at 690.  A statute is not unconstitutionally vague merely because
the words or terms used are not specifically defined.  Engelking v. State,
750 S.W.2d 213, 215 (Tex. Crim. App. 1988).  In the absence of special
definitions, the language under attack can be “measured by common understanding
and practices” or “construed in the sense generally understood.”  Ely v.
State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).  
We disagree with appellant’s
argument that he had no way of ascertaining whether or not he was holding
himself out as a lawyer because the term “lawyer” is not defined by section
38.122.  The statute, which prohibits falsely holding oneself out as a lawyer,
provides a sufficient (albeit implicit) definition of the term “lawyer” by
stating that no offense is committed if a person is “currently licensed to
practice law in this state, another state, or a foreign country and is in good
standing with the State Bar of Texas and the state bar or licensing authority
of any and all other states and foreign countries where licensed.”  Tex. Penal Code Ann. § 38.122(a).  A
person who meets these requirements is considered a lawyer and is therefore not
subject to prosecution.  We believe that the statute provides sufficient
information for an ordinary, law-abiding individual to know that his or her
conduct risks violating a criminal law unless he or she meets the requirements
for being a lawyer set forth in the statute.   See Bynum, 767 S.W.2d
at 773.  
Appellant also argues that
the statute is unconstitutionally vague because it fails to define the term “in
good standing with the State Bar of Texas.”  Appellant contends that he is no
different than lawyers who are licensed to practice law in other states who
hand out their business cards while in Texas and that the statute failed to
give him fair notice that he was required to do anything to be considered “in
good standing with the State Bar of Texas.”  
The vagueness of section
38.122 of the Texas Penal Code as it applies to out of state lawyers is not a
relevant consideration in our analysis.   See Blanco v. State,
761 S.W.2d 38, 41 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (“However,
when appellant’s conduct, as here, falls so clearly within the proscribed
activity, he cannot complain of the law’s vagueness as applied to others.”); Duncantell
v. State, 230 S.W.3d 835, 845 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (“A person who engages in conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others.”). 
Because we have determined that there is legally sufficient evidence to support
appellant’s convictions for engaging in the proscribed activity, we will
sustain his challenge to the vagueness of the statute only if it is
unconstitutionally vague as applied to the conduct at issue in this case.  See
Duncantell v. State, 230 S.W.3d at 845 (“As our discussion of the
sufficiency of the evidence indicates, appellant violated the interference
statute and therefore, we will sustain his facial vagueness challenge only if
the statute is impermissibly vague as applied to his conduct at issue here.”).
This is not a situation in
which no core of prohibited activity is defined.  Ex parte Anderson, 902
S.W.2d 695, 699 (Tex. App.—Austin 1995, pet. ref’d) (“A statute is, however,
unconstitutionally vague when no core of prohibited activity is defined.”).  Section
38.122 makes it an offense to hold oneself out as a lawyer with the intent to
obtain an economic benefit, unless the person meets the requirements for being
a lawyer set forth in the statute.  Being “in good standing with the State Bar
of Texas” is one of those requirements.  Although the term is not defined, “perfect
clarity and precise guidance have never been required even of regulations that
restrict expressive activity.”  Ex parte Ellis, 309 S.W.3d at 86.
In this case, the
requirement of being in good standing with the State Bar of Texas gave
appellant a reasonable opportunity to know that it was unlawful to hold himself
out as a lawyer in Texas solely because it was not unlawful for him to do so in
Mexico.  The statute is sufficiently clear and precise to give fair warning
that the practice of law is closely regulated in Texas and that a person must
be in good standing with the State Bar of Texas to avoid committing a criminal
offense.  See Webb v. State, 991 S.W.2d 408, 416 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d) (“The statutory language is not
unconstitutionally vague—it conveys a sufficient warning about the proscribed
conduct when measured by a common understanding and practice.”).  
In addition, the good
standing requirement provides determinate guidelines for law enforcement by
incorporating into the statute the attorney-licensing and rule-making authority
of the Texas Supreme Court, the administrative function of the Texas Board of
Law Examiners as the agency that facilitates the licensing process, and the
minimum professional standards and requirements adopted by the State Bar of
Texas as a self-regulating body.  Therefore, there is no need to resort to
subjective or arbitrary analysis to determine whether a violation of the
statute has occurred.  See Bynum, 767 S.W.2d at 775 (“The statute
adequately details the prohibited conduct to the extent that the enforcement of
the statute would not be relegated to subjective interpretation.”).  
Appellant’s eleventh issue
is overruled. 
VI. Evidentiary Rulings
In issues fourteen and
fifteen, appellant complains about errors in the trial court’s rulings on the
admissibility of evidence.
A.  
Standard of Review
We review the trial court’s
decision to admit or exclude evidence under an abuse of discretion standard.  Martinez
v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).  The trial court does
not abuse its discretion unless its determination lies outside the zone of
reasonable disagreement.  Green v. State, 934 S.W.2d 92, 104 (Tex. Crim.
App. 1996).  If the trial court’s decision was correct on any theory of law
applicable to the case, we will sustain it.  Prystash v. State, 3 S.W.3d
522, 527 (Tex. Crim. App. 1999); see also Sauceda v. State, 129
S.W.3d 116, 120 (Tex. Crim. App. 2004) (“If the ruling was correct on any
theory of law applicable to the case, in light of what was before the trial
court at the time the ruling was made, then we must uphold the judgment.”).  This
is true even if the trial judge failed to give any reason or used the wrong
reason for the ruling.  Prystash, 3 S.W.3d at 527.
Generally, if the trial
court’s ruling “merely offends the rules of evidence,” the erroneous admission
or exclusion of evidence is nonconstitutional error governed by rule 44.2(b) of
the Texas Rules of Appellate Procedure.  Melgar v. State, 236 S.W.3d
302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Solomon v.
State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)); see also Bagheri
v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003).  When evaluating
harm under rule 44.2(b), we “need only determine whether or not the error
affected a substantial right of the defendant.”  Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000).  Substantial rights are not affected by
the erroneous admission or exclusion of evidence “if the appellate court, after
examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.”  Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002) (citations omitted).  If the evidence is
generally cumulative of other evidence introduced in the case, no harm
attaches.  See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.
1986) (holding that to show harm, the excluded evidence must be controlling on
a material issue and not cumulative of other evidence); Rangel v. State,
179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d) (holding there is no
harm when complained-of evidence was admitted through other testimony); Franks
v. State, 90 S.W.3d 771, 805-06 (Tex. App.—Fort Worth 2002, no pet.)
(holding there is no harm when complained-of testimony was generally cumulative
of other evidence introduced in case).
B.  
Exclusion of the Letter from the Supreme Court of
Tamaulipas
In issue fourteen, appellant
argues that the trial court erred in excluding from evidence a letter from Judge
Perez of the Supreme Court of Tamaulipas, which like the letter from the
Supreme Court of Chihuahua, indicated that appellant, like all citizens of
Mexico, has a constitutional right to practice law in some limited areas.  The
State objected to the letter as hearsay.  See Tex. R. Evid. 802.  Appellant argued that the letter was
admissible based on the public records exception to the hearsay rule.  See
Tex. R. Evid. 803(8)(B).  The
State maintained that the document was not admissible because appellant had not
established that it qualified as a public record setting forth “matters
observed pursuant to duty imposed by law as to which matters there was a duty
to report.”  See id.  
Although Rule 803(8)(C) does
not require that a formal “predicate” be laid through a predicating witness,
the offered document must still be shown to satisfy the requirements of the
Rule.  See Cowan v. State, 840 S.W.2d 435, 437 (Tex. Crim. App.
1992) (“[T]he requirements for admissibility under Rule 803(8)(C) may be met by
circumstantial evidence from the face of the offered document.”).  According to
the State, appellant failed to prove that Judge Perez had a duty imposed by law
to report the matters set forth in the letter.  See Cowan v. State,
840 S.W.2d 435, 438 n.11 (Tex. Crim. App. 1992) (“[S]ection (B) of the Rule
does suggest that . . . the report be of matters observed ‘pursuant to a duty
imposed by law’ and that there was a ‘duty to report.’”) (citations omitted).
We are not persuaded that
the trial court abused its discretion in excluding the letter from evidence or that
appellant suffered any harm from its exclusion.  As noted above, a similar
letter from the Supreme Court of Chihuahua was admitted into evidence.  Appellant
argues the letter from the Supreme Court of Tamaulipas was not cumulative of
the other letter because it was not susceptible to having its credibility
undermined by being included in what the State called appellant’s “aye
Chihuahua defense.”  Although we appreciate the limitations created by the
court’s ruling, the letters are substantially the same.  See Guerra
v. State, 942 S.W.2d 28, 33 (Tex. App.—Corpus Christi 1996, pet. ref’d)
(“The standard on exclusion of cumulative evidence and harmless error dictates
that no harm results when evidence is excluded if other evidence of
substantially the same nature is admitted.”).  
Furthermore, the probative
value of the evidence was limited to the issue of whether or not appellant
could practice law in Mexico without a “cedula.”  As we have explained in
connection with appellant’s other issues, a license to practice law in Mexico
is necessary, but not sufficient, for appellant to lawfully hold himself out as
a lawyer in Texas with the intent to obtain an economic benefit for himself.  Because
the letter excluded from evidence had no probative value on the issue of
whether or not appellant was in good standing with the State Bar of Texas,
which was necessary for appellant’s conduct to be lawful, we have fair
assurance that the error, if any, in excluding the letter from evidence either
did not influence the jury or had but a slight effect.  See Morales, 32
S.W.3d at 867 (“The fact that a piece of evidence was wrongfully excluded from
the jury’s consideration is not sufficient to warrant reversal of a conviction unless
the exclusion had a ‘substantial and injurious effect or influence in
determining the jury's verdict.’”) (citations omitted).
Appellant’s fourteenth issue
is overruled.  
C.  
Admission of Testimony by Attorney Raymond Thomas
In issue fifteen, appellant
argues that the trial court erred in overruling his hearsay objection to the following
testimony by attorney Raymond Thomas:
Q.
[Counsel]              Have you ever found a degree from Regiomontana for
Mauricio Celis?
.
. .
A. 
[Thomas]              I checked with the authorities.  I did not find a diploma

or
a license.
                                     
We do not agree with
appellant’s contention that the foregoing testimony was hearsay.  See Star
Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex. App.—Houston [14th
Dist.] 1992, no writ) (“If the witness states that of his own knowledge he
heard X make a certain assertion and this is offered to prove the truth of the
assertion, the testimony is hearsay.  If, on the other hand, the witness states
that a certain fact is true but in some manner discloses that his statement is
founded on information received from X, the proper objection in strictness is
not hearsay but a want of testimonial qualification of personal knowledge on
the part of the witness. . . .”) (citing 1A Roy R. Ray, Law of Evidence § 793 (Texas Practice 1980)).
Furthermore, even if the
ruling were an abuse of discretion, it would not be reversible error because
the same or similar evidence was admitted through the testimony of appellant
and his witnesses.  See Zorn v. State, 315 S.W.3d 616, 625 (Tex.
App.—Tyler 2010, no pet.) (“Even the erroneous admission of evidence will not
result in reversible error if the same evidence is admitted elsewhere in the
trial without objection.”).  Appellant testified that although he has a diploma
in judicial sciences, it has never been registered with the Ministry of
Education.  Appellant also testified that he does not have a cedula.  According
to appellant’s testimony, “The Constitution does not require that you be a
licensed attorney or have a diploma in law to practice law in Mexico.” 
Appellant also called two witnesses, Jose Martin de Valenzuela Hernandez and
Hector Rene Valdez Diaz, to testify that it is not necessary to go to law
school or to obtain a law license to practice law in Mexico.  Based on the
foregoing, we have fair assurance that the error, if any, in overruling
appellant’s hearsay objection to Thomas’s testimony either did not influence
the jury or had but a slight effect.  See Motilla, 78 S.W.3d at
355. 
Appellant’s fifteenth issue
is overruled.
VII. Conclusion
            Having overruled appellant’s
eighteen issues on appeal, we affirm the judgments of the trial court. 
 
__________________
Rogelio Valdez
                                                                                                Chief
Justice
 
Publish.  
Tex. R. App.
P.
47.2(b)
Delivered and filed the 
31st day of August, 2011.
 
 




[1] In trial court cause no.
07-CR-4046-E, appellant was indicted for seven (7) counts of falsely holding
himself out as a lawyer.  See Tex.
Penal Code Ann. § 38.122(a).  In trial court cause no. 08-CR-1365-E,
appellant was indicted for sixteen (16) counts of falsely holding himself out
as a lawyer.  See id. 


[2] Although appellant’s motion for new
trial was pending, Judge Banales proceeded to sentence appellant without ruling
on the motion.   


[3]
We address
appellant’s legal sufficiency issues out of the order in which they are
presented in appellant’s brief because, if sustained, they would entitle
appellant to an acquittal, thereby rendering his other issues moot.  See
Tex. R. App. P.  47.1.


[4] We will address
issues one through six together because appellant has not argued them as
separate issues and because issues one through five are subsidiary issues
fairly included in issue six.  See Tex.
R. App. P. 38.1(f) (“The statement of an issue will be treated as
covering every subsidiary question that is fairly included.”).  
 


[5] Although appellant’s statement of the
issues presented also refers to violations of his rights under the Constitution
of the State of Texas, his brief does not include a clear and concise argument
for the contentions made with appropriate citations to authorities.  See
Tex. R. App. P. 38.1(i). 
Accordingly, we will not address those contentions.


[6] On appeal, appellant
argues that because the State did not offer any contrary evidence at the
hearing, the trial court was required to accept the juror affidavits and grant
the motion for new trial.  We disagree.  At a hearing on a motion for new
trial, the trial court has the discretion to accept or reject any part of a
witness’s testimony.  See Beck v. State, 573 S.W.2d 786, 791
(Tex. Crim. App. 1978) (noting that, at a motion for new trial hearing, the
trial judge has “the right to accept or reject any part of” a witness’s
testimony).  Therefore, we reject appellant’s contention that the trial court
had no discretion to disregard the juror affidavits because the State failed to
offer contrary evidence at the hearing.  See id. 


[7] The
jury charge instructed the jury as follows: 
“Good standing with the State Bar of
Texas” means:
(1)   Being
a “Member in Good Standing” of the State Bar of Texas; or
 
(2)   Being
certified to practice in Texas as a Foreign Legal Consultant by the Texas Board
of Law Examiners.
A
“Member in Good Standing” of the State Bar of Texas is someone who meets and
complies with all applicable requirements of the Rules of the Supreme Court of
Texas governing admission to the bar of Texas, and who is not in default of
payment of dues and who is not under suspension from practice.
A
“Foreign Legal Consultant” is someone certified under the Rules of the Supreme
Court of Texas governing admission to the Bar of Texas, and who is considered a
lawyer affiliated with the Bar of Texas.


[8] We address appellant’s issues ten through
thirteen out of order because the standard applicable to constitutional
challenges requires that we address issues involving the overbreadth of a
statute before addressing issues involving the vagueness of a statute.  See
Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009,
no pet.) (“When an appellant challenges a statute as both unconstitutionally
overbroad and vague, we address the overbreadth challenge first.”). 
Accordingly, we address issues twelve and thirteen before addressing issues ten
and eleven.


[9] In
addressing appellant’s issues involving jury charge error, we explained that
appellant’s interpretation of the statute is incorrect.  The statute did not
require appellant to be licensed to practice law in Texas, as appellant
contends; however, the statute did require that appellant be in good standing
with the State Bar of Texas.  See Tex.
Penal Code Ann. § 38.002(a).


