                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-08-008-CR


JANET KAY AHMAD                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

                                   ------------

                       OPINION ON REHEARING

                                   ------------

      After reviewing Appellant Janet Kay Ahmad’s motion for rehearing, we

deny the motion. We withdraw our May 28, 2009 opinion and judgment and

substitute the following. Our ultimate disposition is unchanged.

                                 Introduction

      Appellant appeals from her conviction for possession of a hoax bomb. In

seven points, she argues that limitations barred prosecution because the first

of two indictments failed to toll limitations; that the evidence is legally and
factually insufficient to prove that the bomb—a World War II practice

bomb—was a “hoax” bomb; that the trial court erred by reopening the evidence

to allow the State to prove its venue allegations; and that the indictment failed

to sufficiently notify her of the charges against her. We affirm.

                              Factual Background

      Southridge Hills is a residential subdivision of Arlington, Texas. During

World War II, military aviators used the then-undeveloped Southridge Hills area

as a practice bombing range, dropping small, cast iron “practice bombs.” The

practice bombs each contained a “spotting charge” consisting of a 10-gauge

shotgun blank and chemicals designed to fire on impact and expel a puff of

smoke so that an observer could see where the bomb landed. The practice

bombs were not designed to explode.

      After the Southridge Hills subdivision was developed in the late 1990s,

homeowners began to discover the practice bombs on their property.           The

Army Corps of Engineers circulated fliers warning residents about the practice

bombs, and the subdivision’s developer instructed homeowners to call 9-1-1 if

they found a bomb.      Between 2004 and 2005, the Corps discovered and

removed 241 practice bombs in Southridge Hills.

      Appellant, a San Antonio resident, is the president of Homeowners for

Better Builders (“HOBB”), the mission statement of which is “[t]o support a

                                       2
meaningful, long[-]term solution to the problem of the unregulated home

building industry.” On January 26, 2002, Appellant, Crystal McCartney—a real

estate agent—and Thea Lewis—a Southridge Hills resident—went to Southridge

Hills to distribute fliers promoting an upcoming meeting to be hosted by

Appellant concerning the practice bombs.

      McCartney testified that after the women drove around the neighborhood

looking at houses under construction, Appellant said that “she wanted to look

for a bomb, to see if she could find one of the bombs.”           Appellant and

McCartney drove to an empty lot. Five to ten minutes later, Appellant said she

had found a bomb.

      At Appellant’s request, McCartney called 9-1-1 and told the dispatcher

that they had found a bomb. McCartney testified that she believed she was

dealing with an emergency. Later, said McCartney, Appellant told her that the

bomb was one she had found at an earlier date, and McCartney believed that

Appellant placed the bomb where she claimed to have found it on January 26

for the sake of publicity. Appellant concedes that she did not, in fact, find the

practice bomb at that location but “planted” it there herself.

      Andrew Leonard, who lived in a house adjacent to the lot where Appellant

found the bomb, testified that he saw Appellant, McCartney, and Lewis looking

around on the vacant lot. Leonard became suspicious of the women’s intent

                                       3
when he saw Lewis, whom he knew to be involved in litigation with the

developer over the practice bombs, so he continued to watch them. He saw

Appellant retrieve a shovel and another object from her vehicle, put the object

in her pocket, and return to the lot. He said Appellant then moved some dirt

with the shovel, reached into her pocket, and placed something on the ground.

Suspecting that something was amiss, Leonard called to his wife to see what

was happening, and she began to videotape the women. Leonard testified that

Appellant did not appear scared as though she had been dealing with a

dangerous bomb.      Leonard himself considered the practice bombs not

dangerous because he had attended several Corps of Engineers meetings and

had conducted “extensive research” on such devices.

      Arlington Police Officer Jessie Minton was dispatched to the scene of the

incident. Officer Minton stated that he discovered a practice bomb protruding

from the soil. He testified that although the soil in the lot was sticky, black

mud, the practice bomb was dry and rusty, and the soil on it did not match the

mud in the lot. He suspected that the bomb had been deliberately planted

within a few minutes of his arrival at the scene. He did not consider the bomb

dangerous. He testified that the device was “not explosive” but “look[ed] like

a bomb.”




                                      4
      Officer Jack Gariota testified that he assisted Officer Minton and

discovered the bomb’s tail fin protruding from the ground.       Officer Gariota

stated that he had conducted online research concerning practice bombs. He

testified that he believed the bomb had deteriorated after decades of exposure

to moisture and opined that it was inert and was not a threat, and he was not

afraid to hold it. He also believed that the device had been moved from its

original place of discovery to the vacant lot. He recalled that home owners who

had found similar devices had been “pretty concerned” and avoided them as

much as possible.

      Teresa Solano, a homeowner in the Southridge Hills subdivision, testified

that notices she received from the Army Corps of Engineers and the subdivision

developer described the bombs as “practice bombs,” not “hoax bombs.” She

stated that these notices advised residents to immediately contact the fire

department or police department upon discovery of a practice bomb.

      Carl Ford, a supervisor in the Army Corps of Engineers’ hazardous waste

and military munitions group, testified that the device Appellant found was a

MK-23 practice bomb.      Ford considers practice bombs dangerous because

“[t]hey can very easily hurt or injure somebody if . . . mishandled.” Ford stated

that the Corps excavated 241 practice bombs from the subdivision “[t]o protect

the public” from “explosive hazards.”

                                        5
                            Procedural Background

      On August 12, 2003, a grand jury returned a two-count indictment

charging Appellant with tampering with and fabricating evidence. Appellant

moved to quash the indictment, and the State moved to dismiss it for failure to

state an offense. The indictment was dismissed on May 26, 2004. On July

8, 2004, a grand jury returned a second indictment, this time alleging one count

of making a false report and one count of possessing a hoax bomb.           The

indictment contained a tolling paragraph asserting that the conduct charged in

the second indictment was the same conduct that had been charged in the first

indictment.

      On January 8, 2008, a jury acquitted Appellant of the false-report count

but convicted her for the hoax-bomb count.           The trial court assessed

punishment of a $4,000 fine and 180 days in jail but suspended imposition of

the sentence and placed Appellant on community supervision for twelve

months.   Appellant filed a combined motion for new trial and for arrest of

judgment, which were overruled by operation of law. Appellant then filed this

appeal.

      This is Appellant’s third trip to this court. See Ahmad v. State, 158

S.W.3d 525 (Tex. App.—Fort Worth 2004, pet. ref’d) (Ahmad I); Ex parte

Ahmad, No. 02-05-00338-CR, 2007 WL 80013 (Tex. App.—Fort Worth

                                       6
January 11, 2007, pet. ref’d) (not designated for publication) (Ahmad II). In

Ahmad I, Appellant attempted to appeal the trial court’s denial of her motion to

dismiss the second indictment as barred by limitations. 158 S.W.3d at 526.

We dismissed the appeal for want of jurisdiction. Id. at 527. In Ahmad II,

Appellant appealed the trial court’s denial of her petition for writ of habeas

corpus—again related to Appellant’s limitations and tolling arguments—and we

affirmed the denial. 2007 WL 80013, at * 1, 4.

                                  Discussion

I.    Limitations and Tolling

      In her first two issues, Appellant argues that the trial court erred by

denying her motion to quash the indictment and her combined motion in arrest

of judgment and for new trial because the State filed its second indictment after

the two-year statute of limitations expired. Appellant’s argument has three

components. First, she argues that the first indictment did not toll limitations

with regard to the second indictment because the first indictment failed to

allege an offense. Second, she argues that the first indictment did not toll

limitations with regard to the second indictment because the two indictments

alleged different conduct. Third, she argues that the second indictment’s tolling

paragraph was insufficiently specific to relate back to the first indictment.




                                       7
      A.    Preservation of limitations issues

      Before turning to the merits of Appellant’s limitations arguments, we

must address the State’s argument that Appellant waived her issues by failing

to request a jury instruction on limitations. The State relies on Tita v. State,

267 S.W.3d 33 (Tex. Crim. App. 2008), but Tita does not support the State’s

argument. In that case, different grand juries returned five indictments against

Tita. Id. at 34–35. Tita moved to dismiss the last indictment as barred by

limitations, the trial court denied the motion, and the State brought Tita to trial

on the last indictment. Id. at 35. When the State rested on its case in chief

and again at the close of all evidence, Tita moved for a directed verdict based

on limitations; the trial court denied both motions. Id. at 35–36. On appeal,

Tita argued that the trial court erred by failing to dismiss the indictment and

that the evidence presented at trial was legally insufficient to support his

conviction because the State failed to prove that the offense occurred within

the applicable limitations period. Id. at 36.

      With regard to Tita’s sufficiency argument, the court of criminal appeals

held that Tita failed to preserve the issue for review by failing to request a jury

instruction on limitations, id. at 38, and the State relies on this holding to

support its waiver argument in this case.        Specifically, the court stated as

follows:

                                        8
      The record reflects that, at the guilt stage of trial, appellant moved
      twice for an instructed verdict of acquittal, but he never requested
      a jury instruction on the statute of limitations defense. Under those
      circumstances, the State was not obligated to prove that its
      prosecution was not limitations-barred.

Id. at 39.   Unlike Tita, Appellant does not argue that the evidence was

insufficient to prove that the offense occurred within the limitations period.

Thus, the State’s reliance on this part of Tita is misplaced. Further, the court

of criminal appeals considered on the merits Tita’s other issue, that is, whether

the trial court erred by failing to dismiss the indictment as barred by

limitations—the same issue Appellant raises in this case—despite Tita’s failure

to request a jury instruction on limitations. Id. at 37–38. We therefore reject

the State’s argument that Appellant waived her limitations issues by failing to

request a jury instruction on limitations.

      B.     Standard of review

      We review a trial court’s denial of a motion to quash an indictment de

novo because the sufficiency of an indictment is a question of law. Lawrence

v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 128 S.

Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

De novo review is appropriate because this question of law does not turn on the

credibility and demeanor of a witness, and thus, the trial court was in no better




                                        9
position to deny the motion. See Moff, 154 S.W.3d at 601; Mungin v. State,

192 S.W.3d 793, 794 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      Conversely, we review a trial court’s denial of motions in arrest of

judgment and motions for new trial for an abuse of discretion. Charles v. State,

146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Hawkins v. State, 910 S.W.2d

176, 178 (Tex. App.—Fort W orth 1995, no pet.).          A trial court abuses its

discretion when no reasonable view of the record could support the trial court’s

ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles,

146 S.W.3d at 208. We view the evidence in the light most favorable to the

trial court’s ruling and substitute our judgment only if the decision was arbitrary

or unreasonable. Webb, 232 S.W.3d at 112.

      We therefore review the trial court’s rulings on Appellant’s motion to

quash and motion in arrest of judgment/motion for new trial under both the de

novo and abuse of discretion standards.

      C.    The indictments

      The first indictment, returned on August 12, 2003, alleged as follows:

      On or about the 26th day of January, 2002, [Appellant] did
      intentionally or knowingly, make, present, or use, a thing, to-wit:
      a training bomb, which she buried that day . . . with knowledge of




                                        10
      its falsity . . . [and] knowing that an official proceeding was
      pending or in progress . . . .1

Appellant moved to quash the first indictment for failing to state an offense.

The State conceded the issue and filed its own motion to dismiss the

indictment, which the trial court granted on May 26, 2004.

      The grand jury returned a second indictment on July 8, 2004, alleging as

follows:

      [O]n or about the 26th day of January 2002, [Appellant] did . . .
      intentionally or knowingly, initiate, communicate, circulate, or
      broadcast, a report of a present, past or future other emergency,
      to-wit: that a bomb was located in a residential development . . . .

      Count two: And it is further presented . . . that [Appellant] . . . did
      then and there knowingly possess a hoax bomb with the intent to
      use the hoax bomb to make another believe that the hoax bomb
      was an explosive or incendiary device, or with intent to cause
      alarm or reaction of any type by an official of a public safety
      agency or volunteer agency organized to deal with emergencies.

      Tolling paragraph: And I do further present in and to said court that
      heretofore, on the 6th day of August, 2003, a complaint was duly
      filed in the 213th Criminal District Court of Tarrant County, Texas,
      charging said defendant with an offense arising out of the same
      conduct.




      1
      … The “official proceeding” alleged by the indictment was a lawsuit
between Southridge Hills homeowners and the developer. The second count
of the first indictment alleged the identical conduct, but for the “official
proceeding,” it alleged the police investigation into the bomb’s discovery.

                                        11
      D.     Tolling effect of defective first indictment

      Appellant argues that the first indictment—which the State moved to

dismiss because it failed to state an offense—was defective and did not toll

limitations with regard to the second indictment—which the grand jury returned

more than two years after the incident in question. Possession of a hoax bomb

is a Class A misdemeanor subject to the two-year statute of limitations. See

Tex. Penal Code Ann. § 46.08(b) (Vernon 2003); Tex. Code Crim. Proc. Ann.

art. 12.02 (Vernon 2005).

      A limitations period is suspended or tolled during the pendency of a

charging instrument, and the time between filing and dismissal of a charging

instrument that is rendered invalid “for any reason” is not computed in the

limitations period. Tex. Code Crim. Proc. Ann. art. 12.05(b)-(c) (Vernon 2005).

The legislature enacted article 12.05 to overcome the traditional rule that

invalid indictments will not toll the limitations period in the absence of a statute

so holding. Vasquez v. State, 557 S.W.2d 779, 784 (Tex. Crim. App. 1977),

overruled on other grounds, Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App.

1998).     For tolling purposes, “[i]t makes no difference whether the initial

indictment is faulty or valid.”    State v. Hall, 794 S.W.2d 916, 919 (Tex.

App.—Houston [1st Dist.] 1990), aff’d, 829 S.W.2d 184 (Tex. Crim. App.

1992) (en banc).      Consequently, a defective charging instrument will toll

                                        12
limitations under article 12.05(b) for a subsequent indictment when both

indictments allege the same conduct, act, or transaction. Hernandez v. State,

127 S.W.3d 768, 774 (Tex. Crim. App. 2004).

      Appellant further argues that the first indictment is not merely defective;

she argues that it is no indictment at all, and therefore did not toll limitations,

because it failed to allege an offense. The Texas constitution requires that an

indictment allege that (1) a person (2) committed an offense; without both of

those elements, the charging instrument is not an indictment. Teal v. State,

230 S.W.3d 172, 179 (Tex. Crim. App. 2007).2 The proper test to determine

if a charging instrument alleges “an offense” is whether the allegations in it are

clear enough that one can identify the alleged offense. Id. at 180. Stated

another way: Can the trial court (and appellate courts who give deference to

the trial court’s assessment) and the defendant identify what penal code

provision is alleged? Id.

      Appellant contends that the first count of the first indictment alleged

tampering with evidence in a civil lawsuit, which Appellant claims is not an

offense. We agree that the first count alleged tampering with evidence in a civil



      2
        … In her motion for rehearing, Appellant contends that “[b]oth Appellant
and the State agreed that Teal . . . is controlling” and faulted this court for not
addressing “this dispositive point.” But Appellant did not cite Teal in any of her
briefs in this court, and the State cited Teal twice in passing.

                                        13
lawsuit, but we disagree with Appellant’s claim that such tampering is not an

offense. Penal code section 37.09 prohibits tampering with evidence if the

person knows that “an investigation or official proceeding is pending or in

progress.” Tex. Penal Code Ann. § 37.09 (Vernon Supp. 2008). An official

proceeding is “any type of administrative, executive, legislative, or judicial

proceeding that may be conducted before a public servant.” Id. § 1.07(a)(33)

(Vernon Supp. 2008). The definition of “official proceeding” does not limit the

term to criminal proceedings. See id. “Public servant” includes a “person who

is authorized by law . . . to hear or determine a cause or controversy”—in other

words, a civil judge. Id. § 1.07(a)(41)(C); see Lebleu v. State, 192 S.W.3d

205, 213 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding evidence

sufficient to sustain conviction for retaliation against public servant when public

servant in question was civil district judge presiding over a civil dispute between

defendant and defendant’s ex-wife). While criminal prosecutions for tampering

with evidence in civil lawsuits are rare, they are not unheard of. See, e.g.,

LeJune v. State, No. 09-98-037-CR, 1999 WL 160674, at *1 (Tex.

App.—Beaumont March 24, 1999, no pet.) (per curiam) (not designated for

publication) (affirming conviction for tampering with evidence in a child custody

case).




                                        14
      Appellant also argues—for the first time in her reply brief—that the State

is judicially estopped from arguing on appeal that the first indictment alleged an

offense because in the trial court, the State moved to dismiss the first

indictment for failing to state an offense. Judicial estoppel precludes a party

who successfully maintains a position in one proceeding from afterwards

adopting a clearly inconsistent position in another proceeding to obtain an unfair

advantage.    Ferguson v. Bldg. Materials Corp., No. 08-0589, 2009 WL

1901639, at *1 (Tex. Jul. 3, 2009) (per curiam); see Schmidt v. State, 278

S.W.3d 353, 358 (Tex. Crim. App. 2009) (“[The] equitable rule of judicial

estoppel generally prevents a party from prevailing in one phase of a case on

an argument and then relying on a contradictory argument to prevail in another

phase.”) (citing New Hampshire v. Maine, 532 U.S. 742, 749–51, 121 S. Ct.

1808, 1814 (2001)). Accordingly, a party cannot be judicially estopped if it did

not “prevail” in the prior action. Ferguson, 2009 WL 1901639 at *1. The

doctrine is not intended to punish inadvertent omissions or inconsistencies but

rather to prevent parties from playing fast and loose with the judicial system for

their own benefit. Id.

      In this case, the Appellant moved to quash the first indictment, arguing

that it failed to allege an offense. The State agreed and filed its own motion to

dismiss because “[t]he conduct alleged in the indictment does not constitute an

                                       15
offense.” Under the circumstances, we cannot say that the State “prevailed”

on its motion to dismiss, which simply agreed with Appellant’s motion to

dismiss; if anyone prevailed, it was Appellant, who succeeded in having the

indictment dismissed. Because the State did not “prevail in the prior action,”

it cannot be judicially estopped. See id. We therefore reject Appellant’s judicial

estoppel argument.

      Because even a defective first indictment may toll limitations, we overrule

Appellant’s argument that limitations was not tolled by the allegedly defective

first indictment.

      E.    Same conduct, act, or transaction

      Next, Appellant argues that the first indictment did not toll limitations

with regard to the second because the two indictments do not allege the same

conduct, act, or transaction.3

      If the prior and subsequent indictments charge different offenses but the

offenses arise from the same conduct, the prior indictment tolls the statute of

limitations. Id. Two indictments arise from the same conduct if they arise from




      3
        … Appellant made the same argument in Ahmad II, but we did not reach
the argument; instead, we held that the second indictment’s tolling paragraph
sufficed to show that the charged offense was not, at least on its face, barred
by limitations and that Appellant could not challenge the sufficiency of the
tolling paragraph by pretrial writ of habeas corpus. 2007 WL 80013, at *4.

                                       16
the same underlying event or incident. For example, in Hernandez, the court

of criminal appeals held that a prior indictment alleging possession of

amphetamine arose from the same conduct as a subsequent indictment alleging

possession of methamphetamine when both indictments referred to a controlled

substance found on the defendant’s person on a particular date. Id. Likewise,

the Fourteenth Court of Appeals held that in a case where the defendant

induced a minor to masturbate him, a prior indictment alleging indecent

exposure arose from the same conduct as a subsequent indictment alleging

sexual performance of a child. Green v. State, No. 14-08-00075-CR, 2009 WL

136917, at *1 (Tex. App.—Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem.

op., not designated for publication). Similarly, in a case where the evidence at

trial showed that the defendant assaulted and killed a single victim in a single

incident, the Tyler Court of Appeals held that a prior indictment alleging murder

arose from the same incident as a subsequent indictment alleging assault.

Loredo v. State, No. 12-06-00287-CR, 2007 WL 2380346, at *2 (Tex.

App.—Tyler Aug. 22, 2007, no pet.) (mem. op., not designated for publication).

On the other hand, the Beaumont Court of Appeals held that two indictments

“obviously” did not arise from the same conduct when the prior indictment

alleged a robbery committed in September 1998 and the subsequent indictment




                                       17
alleged bail jumping committed in May 2001. Ex parte Martin, 159 S.W.3d

262, 265 (Tex. App.—Beaumont 2005, pet. ref’d).

      In this case, the first indictment alleged that Appellant buried a training

bomb on January 26, 2002. The second indictment alleged that Appellant

made a false report about a bomb and possessed a hoax bomb on January 26,

2002. Although the indictments alleged different offenses, the offenses all

arose from the same conduct: Appellant’s possession of and report about some

kind of bomb—hoax, training, or unspecified—on January 26, 2002. In this

regard, this case is much more like Hernandez, Green, and Loredo than it is like

Martin.    We therefore hold that the two indictments arose from the same

conduct, and we overrule this part of Appellant’s argument.

      F.     Sufficiency of tolling paragraph

      Finally, Appellant argues that the second indictment’s tolling paragraph

is not sufficiently specific to relate back to the first indictment because it failed

to indicate that the case was previously filed under a particular district court

case number or allege that the indictment was for the same offense as the

second indictment. In Ex parte Smith, the court of criminal appeals held that

the deficiency of a tolling allegation “could be raised only in a pretrial motion

to dismiss or quash” the charging instrument. 178 S.W.3d 797, 805 (Tex.




                                         18
Crim. App. 2005). 4 Because “defects . . . [in a] tolling paragraph . . . do not

destroy a trial court’s power or jurisdiction to proceed, . . . they may not be

raised by means of a pretrial writ of habeas corpus. Instead, they may and

must be raised in a motion to quash or motion to dismiss the pleading.” Id. at

803 (citations omitted). “[A]ny purported defects of form and substance in . . .

the tolling paragraph relate to notice and must be brought to the trial court’s

attention before trial or they are waived.” Id.

      Although Appellant referred to the second indictment’s tolling paragraph

in her motion to dismiss the indictment, she did not allege that the tolling

paragraph was insufficiently specific, and the tolling paragraph played no role

in her argument.   Appellant also filed a pretrial petition for writ of habeas

corpus, which stated that it “raised the identical issue presented” by her prior

motion to dismiss and made the same argument as the motion to dismiss.5

Appellant did not raise her complaint about the tolling paragraph’s specificity


      4
      … We note in passing that Appellant relies on this court’s opinion in the
same case to support the merits of her argument. But the court of criminal
appeals reversed our judgment, and on September 26, 2008, the records of the
case were expunged—including our previously published opinion.
      5
       … Because Appellant’s petition for writ of habeas corpus did not assert
her complaint about the alleged tolling paragraph defects, we need not decide
whether a pretrial habeas petition—even though such defects may not be raised
by means of a pretrial writ—is sufficient to bring the complaint to the trial
court’s attention and thus preserve error for appeal—a possibility not resolved
by Ex parte Smith. See id.

                                      19
until after trial in her combined motion for arrest of judgment and for new trial.

By failing to raise her complaint about the tolling paragraph before trial, she

waived it. See id.

      G.    Conclusion

      Because (1) even a defective indictment will toll limitations, (2) the first

and second indictments arose from the same conduct, and (3) Appellant waived

her complaint about the tolling paragraph’s sufficiency, we hold that the trial

court did not err by denying Appellant’s motion to dismiss the second

indictment and did not abuse its discretion by denying her combined motion to

arrest the judgment and for new trial. We overrule Appellant’s first two issues.

II.   Legal and Factual Sufficiency

      In her third and fourth issues, Appellant argues the evidence was legally

and factually insufficient to support her conviction for possessing a hoax bomb.

The gist of Appellant’s argument is that the evidence showed that the device

she possessed was a “real” practice bomb, not a “hoax” bomb; she states that

“[t]he sole fact at issue is whether the practice bomb was a real bomb or a

hoax bomb.” The State contends that the hoax bomb statute unambiguously

prohibits possession of the device in question, regardless of whether it was a

real bomb, a simulated bomb, or a practice bomb.




                                       20
      A.    The hoax bomb statute

      Penal code section 46.08 defines the offense of possession of a hoax

bomb as follows:

           A person commits an offense if the person knowingly
      manufactures, sells, purchases, transports, or possesses a hoax
      bomb with the intent to use the hoax bomb to:

            (1) make another believe that the hoax bomb is an explosive
      or incendiary device; or

            (2) to cause alarm or reaction of any type by an official of a
      public safety agency or volunteer agency organized to deal with
      emergencies.

Tex. Penal Code Ann. § 46.08(a) (Vernon 2003). Section 46.01(13) defines

“hoax bomb” as

      a device that (A) reasonably appears to be an explosive or
      incendiary device or (B) by its design causes alarm or reaction of
      any type by an official of a public safety agency or a volunteer
      agency organized to deal with emergencies.

Id. § 46.01(13) (Vernon Supp. 2008). The code does not define “explosive or

incendiary device,” but it does define “explosive weapon” as

      any explosive or incendiary bomb, grenade, rocket, or mine, that is
      designed, made, or adapted for the purpose of inflicting serious
      bodily injury, death, or substantial property damage, or for the
      principal purpose of causing such a loud report as to cause undue
      public alarm or terror, and includes a device designed, made, or
      adapted for delivery or shooting an explosive weapon.

Id. § 46.01(2).



                                      21
      B.     Can a “real” bomb be a “hoax” bomb?

      Appellant focuses on the colloquial meaning of “hoax” and argues that a

real bomb cannot be a hoax bomb because “the core meaning of ‘hoax’ is

. . . falsity.”   See Webster’s Ninth New Collegiate Dictionary 574 (1987)

(defining “hoax” as “an act intended to trick or dupe . . . something accepted

or established by fraud or fabrication”). Appellant contends that because the

practice bomb was a “real” bomb, it could not be a false or hoax bomb.

      But the statutory definition of hoax bomb is not so constrained. Section

46.01(13) defines “hoax bomb” as a device that (A) reasonably appears to be

an explosive or incendiary device or (B) by its design provokes a public safety

reaction. Tex. Penal Code Ann. § 46.01(13). Both halves of the definition are

broad enough to encompass “real” bombs; neither half is limited to “fake”

bombs. Part (A) of the definition includes a device that reasonably appears to

be an explosive device, regardless of whether it truly is an explosive device or

turns out to be fake. Part (B) of the definition includes a device that by its

design provokes a public safety reaction, regardless of whether the device is a

real bomb or a fake bomb. Despite the legislature’s use of the word “hoax” in

sections 46.01(13) and 46.08, nothing in the penal code suggests that the




                                      22
legislature intended those sections to apply only to fake bombs, 6 and its

expansive definition of “hoax bomb” unambiguously rules out that possibility. 7

      Thus, in this case, it makes no difference whether the practice bomb was

a real bomb or a fake bomb as long as the evidence supports the elements of

section 46.01(13) and 46.08. With this in mind, we turn to Appellant’s legal

and factual sufficiency arguments.



      6
        … In this regard, the Texas hoax bomb law is unique. Four other
states—Florida, Nevada, New Mexico, and West Virginia—prohibit possession
of “hoax” bombs (other states prohibit the possession of devices that appear
to be bombs, but their statutes do not use the word “hoax”). But the relevant
Florida, New Mexico, and West Virginia statutes define “hoax bomb” as a
device that appears to be an explosive device but is, in fact, “an inoperative [or
inert] facsimile or imitation.” Fla. Stat. Ann. § 790.165(1) (West 2008); N.M.
Stat. Ann. § 30-7-20 (West 2008); W. Va. Code Ann. § 61-3E-1(c) (2008).
The Nevada statute defines “hoax bomb” as “(a) An inoperative facsimile or
imitation of an explosive or incendiary device; or (b) A device or object that
appears to be or to contain an explosive or incendiary device.” Nev. Rev. Stat.
Ann. § 202.263(4)(a)-(b) (West 2008). Thus, only Texas law prohibits
possession of a “hoax bomb” without any reference whatsoever to whether the
device is “an inoperative facsimile or imitation” or a real bomb. We note that
the second half of Nevada’s “hoax bomb” definition appears—like both parts
of Texas’s definition—broad enough to include both real and fake bombs that
appear to be real.
      7
        … Appellant urges us to consider the legislative history of the hoax bomb
statute. But the court of criminal appeals has admonished Texas courts that
“[i]f the plain language of a statute would lead to absurd results, or if the
language is not plain but rather ambiguous, then and only then, out of absolute
necessity, is it constitutionally permissible for a court to consider . . . legislative
history.” Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991).
Because we hold the hoax bomb statute is unambiguous, we need not resort
to its legislative history to guide our analysis.

                                          23
      C.    Legal and factual sufficiency: standards of review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

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

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

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.

      D.    The evidence is legally sufficient.

      Appellant concedes that she “planted” the practice bomb, which

necessarily means that she also knowingly possessed it. See Tex. Penal Code

                                       24
Ann. § 46.08(a). The State offered into evidence a similar practice bomb (the

State lost the one Appellant possessed) and photographs of other, similar

bombs; they reasonably appear to be explosive devices. The evidence also

shows that the device “caused a reaction of any type” by a public safety

agency, namely, police were dispatched to the location where Appellant said

she found the bomb. Thus, the evidence is legally sufficient to support the

jury’s implied finding that the device was a “hoax bomb” as defined by either

half of section 46.01(13).

      The evidence also shows that upon “finding” the bomb, Appellant

attempted to call 9-1-1 and, when she could not do so on her own phone,

asked McCartney to do so. This is some evidence that Appellant possessed the

practice bomb with the intent to cause alarm or a reaction of any type by an

official of a public safety agency organized to deal with emergencies, namely,

the police. The fact that neither of the police officers who were dispatched to

the scene was especially alarmed by the practice bomb is irrelevant; the

question is what Appellant intended, and her 9-1-1 call shows that she intended

to provoke a police reaction.

      Considering the evidence in the light most favorable to the prosecution,

we hold that a rational jury could have found beyond a reasonable doubt that

(1) Appellant knowingly possessed a device (2) that reasonably appeared to be

                                      25
an explosive device or by its design caused a reaction of any type by a public

safety agency (3) with the intent to cause a reaction of any type by a public

safety agency. See id. §§ 46.01(13), 46.08(a). Thus, the evidence is legally

sufficient to support her conviction for possession of a hoax bomb, and we

overrule her third issue. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W.3d at 778.

      E.    The evidence is factually sufficient.

      In addition to the foregoing evidence, the record shows that the Corps of

Engineers and other agencies advised residents to call 9-1-1 if they found a

practice bomb. If Appellant had simply found the bomb, then her calling 9-1-1

would not necessarily show that she intended to provoke a public safety

reaction. But if Appellant had simply found the bomb, rather than possessing

it, then her action would not fall within the conduct prohibited by section 46.08

at all. Thus, the testimony about instructions to call 9-1-1 upon discovery of

a bomb does not militate against the jury’s verdict.

      Appellant argues that “[p]roof the bomb was harmless is extremely

weak.” But because the penal code does not distinguish between real and fake

bombs in the definition of “hoax bomb,” the State was not required to prove

that the bomb was harmless. Testimony that neither the Corps of Engineers

nor any other agency regarded the practice bombs to be “hoax bombs” in the

                                       26
colloquial sense of “hoax” does not preclude them from being “hoax bombs”

in the statutorily-defined sense. Likewise, evidence that government agencies

warned residents that the practice bombs could be dangerous does not preclude

them from falling within section 46.01(13)’s definition of “hoax bomb.”

       Considering all of the evidence in a neutral light, we hold that the

evidence supporting Appellant’s conviction is not so weak, nor the conflicting

evidence so strong, that the jury’s verdict was manifestly unjust. See Lancon,

253 S.W .3d at 704; Watson, 204 S.W.3d at 414–15, 417.                  Thus, the

evidence is factually sufficient to support Appellant’s conviction, and we

overrule her fourth issue.

III.   Decision to Reopen Trial for Additional Testimony

       In her fifth issue, Appellant argues that the trial court erred by granting

the State’s motion to reopen the evidence to establish venue.

       The State argues that Appellant failed to preserve error by not specifically

objecting at trial. We disagree. Appellant must show she timely presented her

complaint and the grounds therefore to the trial court and obtained an adverse

ruling. Tex. R. App. P. 33.1(a)(1). The objection need not be specific if the

trial judge was aware of the substance of the objection when it was made.

Cooper v. State, 961 S.W.2d 222, 228 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d); Kelly v. State, 903 S.W.2d 809, 811 (Tex. App.—Dallas 1995, pet.

                                        27
ref’d). Appellant’s objection, although general, immediately followed a lengthy

discussion of venue, in which she voiced her complaint that there was no

evidence the events took place in Tarrant County. The trial judge was clearly

aware of the substance of the objection. See, e.g., Shedden v. State, 268

S.W.3d 717, 730 (Tex. App.—Corpus Christi 2008, pet. ref’d) (holding no

waiver where, prior to “no objection” statement, the parties had held “a lengthy

discussion about the suppression issues”); see also Alcocer v. State, 256

S.W.3d 398, 402 (Tex. App.—San Antonio 2008, no pet.) (concurring with

judgment on grounds that courtroom discussion apprised trial judge of grounds

of objection because “[p]ublic confidence in our criminal justice system is

eroded when we fail to address the merits of a complaint because we too

broadly construe the rules applicable to waiver.”) (mem. op.) (Hilbig, J.,

concurring). Thus, we will address the merits of Appellant’s claim.

      The decision to reopen is left to the sound discretion of the trial court.

Doyle v. State, 24 S.W.3d 598, 601 (Tex. App.—Corpus Christi 2000, pet.

ref’d).   The trial judge has the discretion to reopen a case to introduce

additional evidence if that evidence is vital to “due administration of justice.”

Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). The trial judge should

therefore reopen the case if the evidence would materially change the case in

the proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App.

                                       28
2003). A trial court’s decision to reopen and allow the State to prove venue

is not an abuse of discretion. See, e.g., Cox v. State, 494 S.W.2d 574, 575

(Tex. Crim. App. 1973); Martin v. State, 160 Tex. Crim. 364, 366–67, 271

S.W.2d 279, 280 (1954). A trial court’s decision to reopen is discretionary

even when the motion to reopen was responsive to defendant’s motion for

directed verdict. Boatright v. State, 472 S.W.2d 765, 770 (Tex. Crim. App.

1971); Wall v. State, 878 S.W.2d 686, 690 (Tex. App.—Corpus Christi 1994,

pet. ref’d); Wolf v. State, 674 S.W.2d 831, 842 (Tex. App.—Corpus Christi

1984, pet. ref’d), overruled on other grounds, Reed v. State, 744 S.W.2d 112

(Tex. Crim. App. 1988).

      Appellant asks this court to create an exception to the trial court’s

discretion to reopen that would prevent the State from waiting until the last

minute to prove the essential elements of the offense. We decline Appellant’s

invitation to depart from settled law. See Garcia v. State, 829 S.W.2d 796,

800 (Tex. Crim. App. 1992) (discouraging courts from “invading the

legislature’s province by reading into the law that which is clearly not there.”),

cert. denied, 538 U.S. 1059 (2003). We note that Appellant herself waited

until the last available moment to object to venue by raising the issue just

before closing arguments. See Hernandez v. State, 198 S.W.3d 257, 268




                                       29
(Tex. App.—San Antonio 2006, pet. ref’d) (stating venue is presumed unless

raised at trial); see also Tex. R. App. P. 44.2(c)(1).

      Because the trial court had the discretion to reopen the evidence and

allow the State to prove its venue allegations and Appellant has not shown an

abuse of that discretion, we overrule her fifth issue.

IV.   Fair Notice

      In her sixth issue, Appellant contends the indictment deprived her of fair

notice of the charges against her as guaranteed by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and article I, section

nineteen of the Texas Constitution.8 We review Appellant’s argument under a

de novo standard because the sufficiency of a charging instrument presents a

question of law. State v. Barbernell, 257 S.W.3d 248, 251–52 (Tex. Crim.

App. 2008)

      All defendants have a constitutional right to notice of the specific charge

against them in state and federal courts. Cole v. Arkansas, 333 U.S. 196, 201,

68 S. Ct. 514, 517 (1948). The Sixth Amendment requires that the defendant




      8
       … Because Appellant has not argued that the protections in the Texas
Constitution exceed or differ from the protections in the United States
Constitution regarding this point, we only address Appellant’s arguments under
the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex.
Crim. App. 1993), cert. denied, 513 U.S. 830 (1994).

                                       30
be apprised of the “nature and cause” of the accusation against him with such

clarity and detail that he can adequately prepare a defense. Moff, 154 S.W.3d

at 601; Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). A

reviewing court therefore looks to the indictment to determine whether notice

was sufficient. See Lawrence, 240 S.W.3d at 916 (applying state and federal

constitutional protections). Indictments that follow the language of the criminal

statute under which a defendant is charged provide adequate notice.           Id.

Indictments need not define terms when a statutory definition is available.

State v. Laird, 208 S.W .3d 667, 669 (Tex. App.—Fort Worth 2006, no pet.)

(citing Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988)

(applying state and federal constitutional provisions)).

      Appellant’s notice argument, like her sufficiency arguments, hinges on

what she identifies as the distinction between “real” bombs and “hoax” or fake

bombs; she argues that the State indicted her for possessing a hoax bomb but

prosecuted her for possessing a real bomb.

      But as we explained in our sufficiency analysis, section 46.01(13) does

not distinguish between real and fake bombs; both can be “hoax” bombs if they

otherwise meet the statutory definition.     The State indicted Appellant for

possessing a hoax bomb and prosecuted her for possessing a hoax bomb,

regardless of whether the bomb was real or fake, live or inert. The statutory

                                       31
definition of hoax bomb is broad enough to include real bombs. The indictment

was not required to set out the statutory definition of a hoax bomb. See id.

Thus, the indictment for possessing a hoax bomb was notice to Appellant of

the specific charge against her, even if the evidence showed that the practice

bomb was a real bomb. We overrule Appellant’s sixth issue.

V.    Lost Evidence

      In Appellant’s final issue, she argues that because the State lost the

practice bomb before trial, the trial court erred by not granting Appellant’s

combined motion in arrest of judgment/motion for new trial. Appellant further

contends the failure to preserve the bomb denied her due course of law under

article I, section nineteen of the Texas constitution.

      To preserve her complaint, Appellant was required to submit this issue to

the trial court. See Tex. R. App. P. 33.1(a)(1); Carroll v. State, 266 S.W.3d 1,

3 (Tex. App.—Waco 2008, pet. ref’d). Neither Appellant’s combined motion

in arrest of judgment/motion for new trial nor her motion to quash raised this

argument. Therefore, she forfeited her complaint. See Mendez v. State, 138

S.W.3d 334, 338–39 (Tex. Crim. App. 2004) (en banc); see also Carroll, 266

S.W.3d at 3 (holding that defendant forfeited her spoliation argument by not

raising objection at trial). We overrule Appellant’s seventh issue.




                                       32
                                Conclusion

     Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.




                                         ANNE GARDNER
                                         JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. concurs without opinion.

PUBLISH

DELIVERED: August 26, 2009




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