                                                                           ACCEPTED
                                                                       14-15-00111-CR
                                                       FOURTEENTH COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                 10/28/2015 9:43:56 AM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

              No. 14-15-00111-CR

IN THE FOURTEENTH COURT OF APPEALS FILED IN
                                14th COURT OF APPEALS
      SITTING IN HOUSTON, TEXAS    HOUSTON, TEXAS
                                               10/28/2015 9:43:56 AM
                                               CHRISTOPHER A. PRINE
                                                        Clerk
        LEIROI MICKELE DANIELS,
                          Appellant,

                        vs.

              STATE OF TEXAS,
                         Appellee.


        On appeal from Cause No. 1399598
in the 230th District Court of Harris County, Texas


            APPELLANT’S BRIEF



                                   HEATHER M. LYTLE
                                   SBN: 24046487
                                   202 Travis Street, Suite 300
                                   Houston, Texas 77002
                                   Tel. 713-204-7060
                                   Fax 281-786-4539
                                   heather@lytle-law.com

                                   ATTORNEY FOR APPELLANT
                                   LEIROI MICKELE DANIELS



     ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL


Appellant:                       Leiroi Mickele Daniels

Appellant’s Trial Counsel:       Byron Keith Watson
                                 7322 Southwest Freeway, Suite 580
                                 Houston, Texas 77074
                                 Tel. 713-771-8777

Appellant’s Appellate Counsel:   Heather M. Lytle
                                 202 Travis Street, Suite 300
                                 Houston, Texas 77002
                                 Tel. 713-204-7060


Appellee:                        State of Texas

Appellee’s Trial Counsel:        Lynne Parsons
                                 Rachel Palmer
                                 Assistant District Attorneys
                                 Harris County District Attorney’s Office
                                 1201 Franklin Street, Suite 600
                                 Tel. 713-755-5800

Appellee’s Appellate Counsel:    Alan Curry
                                 Chief Prosecutor, Appellate Division
                                 Harris County District Attorney’s Office
                                 1201 Franklin Street, Suite 600
                                 Tel. 713-755-5800

Trial Court:                     Hon. Judge Brad Hart
                                 230th Judicial District Court
                                 Harris County, Texas




                                    i
                                          TABLE OF CONTENTS
                                                                                                                 Page No.

IDENTITY OF PARTIES AND COUNSEL ......................................................... i

TABLE OF CONTENTS ........................................................................................ ii

TABLE OF AUTHORITIES .................................................................................. iv

STATEMENT OF THE CASE ............................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT ............................................ vi

ISSUE PRESENTED ........................................................................................... vii

STATEMENT OF FACTS ..................................................................................... 1

SUMMARY OF THE ARGUMENT ..................................................................... 3

ARGUMENT .......................................................................................................... 4

         The trial court erred in denying Mr. Daniels’ Motion to Quash
         and Exception to the Substance of the Indictment because it does
         not appear, from the allegations made in the indictment, that a
         criminal offense was committed by Mr. Daniels. .................................... 4

              De novo review is warranted for the questions of law before the
              Court. ....................................................................................................... 6

              Texas Code of Criminal Procedure vs. Texas Constitution .................... 8

              Whose car is it, anyway? .......................................................................... 11

              Mr. Daniels upheld his duty as a surety. ................................................. 14

              Risk vs. Reward ....................................................................................... 17

              As a matter of fact, it’s a matter of law. .................................................. 18

PRAYER .................................................................................................................19
                                                              ii
CERTIFICATE OF COMPLIANCE ......................................................................20

CERTIFICATE OF SERVICE ...............................................................................20




                                                  iii
                                 TABLE OF AUTHORITIES
                                                                                               Page No.

Cases

Berry v. State,
      424 S.W.3d 579 (Tex.Crim.App. 2014) ................................................. 15

Casillas v. State,
      733 S.W.2d 158 (Tex.Crim.App. 1986) ................................................ 17

Cook v. State,
     902 S.W.2d 471 (Tex.Crim.App. 1995) ................................................ 8,9

Demond v. State,
    452 S.W.3d 435 (Tex.App.—Austin 2014)............................................ 17

Mills v. Baird,
       147 S.W.2d 312 (Tex.App.—Austin 1941, writ ref'd) ........................... 16

State v. Krizan-Wilson,
       354 S.W.3d 808 (Tex.Crim.App. 2011) ................................................. 6

Martinez v. State,
      753 S.W.2d 165 (Tex.App.—Beaumont 1988) ...................................... 13

State v. Salinas,
       982 S.W.2d 9 (Tex.App.—Houston [1st Dist.] 1997)............................. 7

Studer v. State,
      799 S.W.2d 263 (Tex.Crim.App. 1990) ................................................. 9

Thomas v. State,
     621 S.W.2d 158 (Tex.Crim.App. 1981) ................................................. 6

Statutes and Rules

TEX. CODE CRIM. PROC. art. 27.08(1) ............................................................... 8

TEX. CODE CRIM. PROC. art. 59.02(b) ............................................................... 12
                                                    iv
TEX. CODE CRIM. PROC. art. 59.02(d) ............................................................... 12,13

TEX. PENAL CODE § 1.07(a)(35)(A) .................................................................. 11,12

TEX. PENAL CODE § 32.45(b) ............................................................................ 14,15

TEX. PENAL CODE § 32.45(a)(1)(C) .................................................................. 15

TEX. CONST. art. V, § 12 .................................................................................. 8




                                                         v
                          STATEMENT OF THE CASE

      Appellant, LEIROI MICKELE DANIELS, was indicted on November 22,

2013, for the third-degree felony offense of Misapplication of Fiduciary Property.

Clerk’s Record, Vol. 1, p. 261 (hereinafter abbreviated CR vol:pg.). Mr. Daniels

filed a Motion to Quash the Indictment, an Amended Motion to Quash the

Indictment, and a Second Amended Motion to Quash and Exception to the

Substance of the Indictment. CR 1:307, 332; CR 2:2261. The trial court heard the

motions and subsequently denied them. Reporter’s Record, Vol. 1, p. 16; Vol. 3,

pp.9-10 (hereinafter abbreviated RR vol:pg.). See also CR 1:310. Mr. Daniels then

entered a plea of “No Contest,” without an agreed recommendation of punishment

from the State. The trial court sentenced Mr. Daniels to five years’ deferred

adjudication probation, and certified his right to appeal the pre-trial motions. CR

2:2266, 2268. Mr. Daniels filed his Notice of Appeal (CR 2:2273), and now

brings this appeal, challenging the trial court’s denial of his Motion to Quash the

Indictment.


              STATEMENT REGARDING ORAL ARGUMENT

      Mr. Daniels respectfully requests that this Court grant oral argument. This

case distinguishes between the constitutional and statutory requirements for a valid

indictment. Oral argument would not only benefit the Court in rendering its

decision, but is necessary for a thorough analysis of the issues.
                                          vi
                       ISSUE PRESENTED

The trial court erred in denying Mr. Daniels’ Motion to Quash and
Exception to the Substance of the Indictment because it does not
appear, from the allegations made in the indictment, that a criminal
offense was committed by Mr. Daniels.




                                vii
                            STATEMENT OF FACTS

      Leiroi Mickele Daniels is an established criminal defense attorney,

practicing in Houston, Texas. In September 2006, Angel Rodriguez hired Mr.

Daniels to represent him in defending against a felony charge of possession, with

intent to distribute, a controlled substance, pending in the 208th District Court of

Harris County, Texas. CR 1:265; RR 1:10; RR 2:25. Mr. Rodriguez gave Mr.

Daniels his car, a 2000 Mercedes Benz S 500, in partial payment for Mr. Daniels’

legal services. CR 1:332. On November 7, 2006, Mr. Daniels signed a transfer of

title, and on November 8, 2006, he filed that document. RR 2:6. On November 22,

2006, a new title was issued, showing Mr. Daniels as the lawful owner. CR 1:289.

      On November 29, 2006 – after Mr. Daniels became the rightful owner of the

car – the State of Texas filed an asset forfeiture lawsuit in civil court, alleging that

it had the right to seize the car because it was used in furtherance of Mr.

Rodriguez’ alleged crime. CR 1:265. In response to the lawsuit, Mr. Daniels

informed the Assistant District Attorney prosecuting the asset forfeiture lawsuit

that he had title to the car, which he had received as payment for legal services. RR

2:6-7. Despite this fact, the State continued with the lawsuit.

      The asset forfeiture lawsuit was set to be heard in the 157th District Court of

Harris County, Texas. That court issued a surety bond to Mr. Rodriguez on March

30, 2007, which obligated him – not Mr. Daniels – to return the vehicle to the


                                           1
Court on the day of “the forfeiture hearing,” or pay the agreed-upon value of the

car, $23,000.00. CR 1:273. Both Mr. Daniels and his law firm signed as co-

sureties to the bond, and were obligated to ensure payment in the amount of

$23,000.00 if the vehicle was not produced on the day of trial. Id. The Court then

released the vehicle to the possession of Mr. Daniels.

      On April 9, 2008, over a year following the issuance of the bond, but before

the forfeiture hearing, Mr. Daniels sold the vehicle and later purchased another in

Florida. CR 1:266. He had already paid a significant amount of money in repairs,

and only sold it for $12,000.00 trade-in value. Id. When the court date arrived, Mr.

Rodriguez did not appear, and Mr. Daniels did not produce the vehicle pursuant to

the replevy bond, because it had been sold. CR 1:282-83.

      The forfeiture court ordered the bond forfeited on August 16, 2010. CR

1:282-83. The State filed an abstract of judgment on November 18, 2010, but then

cancelled it, and made no further attempt to collect on the judgment or execute the

order of bond forfeiture. See Appendix A, attached hereto. Instead of proceeding

with the available remedy to obtain the value of the vehicle – which was the

purpose of the forfeiture lawsuit to begin with – the State charged Mr. Daniels with

the third-degree felony offense of Misapplication of Fiduciary Property. The State

eventually did abstract the judgment on January 8, 2014, which was well into the




                                         2
pre-trial litigation of Mr. Daniels’ criminal charge and after Mr. Daniels challenged

the legality of the indictment. RR 2:9-10; See Appendix B, attached hereto.


                       SUMMARY OF THE ARGUMENT

      This is not a case of misappropriation of fiduciary property. This is a case of

the State prosecuting a grudge against Mr. Daniels for a perceived attempt to

thwart an asset forfeiture and seizure.

      Mr. Daniels did not commit a crime, and the allegations contained in the

indictment do not describe criminal behavior as a matter of law. When he sold the

vehicle subject to asset forfeiture, the State had every right and opportunity to

demand payment from the bond forfeiture or execute the agreed judgment but

failed to do so. In fact, the State filed, and then withdrew, an abstract of the

judgment, choosing instead to indict Mr. Daniels years later. The trial court should

have dismissed such an indictment, which reached far outside the letter and spirit

of the law.

      The indictment in this case fails, pursuant to Article 27.08(1) of the Texas

Code of Criminal Procedure, because it does not appear from the allegations

claimed in the indictment that an offense was committed by Mr. Daniels.

Specifically, the allegations do not describe a criminal offense because: (1) Mr.

Daniels, not the 157th District Court, was the lawful owner of the vehicle and one

cannot misappropriate his own property; (2) Mr. Daniels did not, as a matter of
                                          3
law, fail to honor any fiduciary obligation bestowed by the surety bond; and (3) the

existence of the bond legally precludes any risk of loss that Mr. Daniels’ actions

may have caused. Therefore, the trial court erroneously applied the law when it

denied Mr. Daniels’ several attempts to quash the indictment.

                                   ARGUMENT

      The trial court erred in denying Mr. Daniels’ Motion to Quash
      and Exception to the Substance of the Indictment because it does
      not appear, from the allegations made in the indictment, that a
      criminal offense was committed by Mr. Daniels.

      Mr. Daniels does not stand before this Court claiming, like so many before

him, “I didn’t do it.” Mr. Daniels freely admits that he did do exactly what the

State claims he did. It just isn’t a crime to have done so. Therefore, the State’s

allegations do not, as a matter of law, describe criminal conduct.

       Even though the indictment tracks the language of Section 32.45 of the

Texas Penal Code, it is substantively defective because it does not allege conduct

which actually violates that statute. In two paragraphs, the indictment charged Mr.

Daniels with the third-degree felony of Misapplication of Fiduciary Property, and

in pertinent part reads:

      [I]n Harris County, Texas, LEIROI MICKELE DANIELS, hereinafter
      styled the Defendant, heretofore on or about MARCH 30, 2007
      CONTINUING THROUGH NOVEMBER 15, 2010, did then and
      there unlawfully, while a fiduciary, namely a co-surety to the Court’s
      replevy bond, intentionally and knowingly misapply property, to wit:
      a 2000 Mercedes Benz S 500… of a value of over twenty-thousand
      dollars and under one hundred thousand dollars by dealing with said
                                          4
      property contrary to an agreement under which the Defendant held the
      property and in a manner that involved a substantial risk of loss to the
      157th District Court, the owner of said property, by selling the vehicle
      and failing to return the motor vehicle to the court on the day of trial.

      It is further presented that LEIROI MICKELE DANIELS … did then
      and there unlawfully, while a fiduciary, namely a co-surety to the
      Court’s replevy bond, recklessly misapply property, to wit: a 2000
      Mercedes Benz S 500 … by dealing with said property contrary to an
      agreement under which the Defendant held the property and in a
      manner that involved a substantial risk of loss to the 157th District
      Court, the owner of said property, by not abiding by the conditions in
      the replevy bond and Chapter 59.02 of the Code of Criminal
      Procedure, by failing to return the motor vehicle to the court on the
      day of trial and by selling the vehicle and using the proceeds from the
      sale of the above referenced property to purchase a motor vehicle for
      Rhoda Daniels.

CR 1:261. These allegations fail as a matter of law because (1) Mr. Daniels was

the lawful owner of the vehicle, rather than the 157th District Court, and cannot

unlawfully misappropriate his own property; (2) Mr. Daniels did not breach a

fiduciary duty when he sold the vehicle; (3) the bond and agreed judgment

necessarily eliminate any risk of loss.

      The relevant facts are undisputed: Mr. Rodriguez gave Mr. Daniels his

vehicle in payment for legal services, and Mr. Daniels took both title and

possession of the vehicle. The State subsequently subjected Mr. Daniels’ vehicle

to an asset forfeiture lawsuit. In order to maintain possession of his property

during the pendency of the lawsuit, Mr. Daniels signed as a co-surety to a surety

bond issued to Mr. Rodriguez. Mr. Daniels sold his property before the civil trial


                                          5
court determined whether the State had the right to seize the property. Mr. Daniels

agreed to honor his obligation as surety and agreed to pay the bond amount. The

State, however, failed to pursue the remedy given by the civil trial court in its order

of bond forfeiture and agreed judgment. Instead, the State sought criminal charges

against Mr. Daniels.

      What is disputed in this case is the legal impact of the facts. Mr. Daniels

asserts that, as a matter of law, the State’s indictment fails because the allegations

do not amount to a violation of the law. The State will argue that the indictment

tracks the language of the statute, and Mr. Daniels’ complaints are simply fact

issues to be argued to a jury, rather than legal issues to be determined prior to trial.

However, as demonstrated below, the State’s arguments fail because they

misunderstand the applicable law.

De novo review is warranted for the questions of law before the Court.

      Precedent dictates that appellate courts review a denial of a motion to quash

for abuse of discretion, while a motion to dismiss an indictment is reviewed under

a bifurcated standard. See Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.

1981) (motion to quash);         State v. Krizan-Wilson. 354 S.W.3d 808, 816

(Tex.Crim.App. 2011) (motion to dismiss). Under the bifurcated standard, almost

total deference to the trial court’s findings of fact, both express and implied, which




                                           6
are supported by the record. Id. But the Court will review de novo questions of

law and mixed questions of law and fact that do not turn on credibility. Id.

      There is sometimes confusion in the case law created by failing to

distinguish between a motion to quash and a motion to dismiss. See State v.

Salinas, 982 S.W.2d 9, 10, n.1 (Tex.App.—Houston [1st Dist.] 1997). The Code of

Criminal Procedure uses the term “motion to set aside,” although in practice

attorneys title their motions interchangeably with “motion to set aside,” “motion to

quash,” and “motion to dismiss.” Id. Rather than base the standard of review on

the title of the motion presented to the trial court, the better practice is to determine

whether the issue presented to this Court is one of law or of fact. Id. If it is a

question of law, then this Court applies a de novo standard of review. Id.

      The issues presented to this Court are legal, rather than factual issues, as will

be discussed more thoroughly below. Mr. Daniels presented three motions to the

trial court, all using the words “motion to quash” and/or “exception to the

substance” of the indictment.        All issues raised in this appeal turn on the

substantive defects of the indictment, pursuant to Article 27.08(1) of the Texas

Code of Criminal Procedure. Accordingly, Mr. Daniels urges this Court to review

this case de novo, as claims against the substantive defects of an indictment are

legal issues.




                                           7
Texas Code of Criminal Procedure vs. Texas Constitution

      The State will undoubtedly argue before this Court, as it did in the trial

court, that the indictment suffices because it meets all the requirements necessary

to “charge an offense.” CR 1:267-68. Mr. Daniels does not dispute that the

indictment sufficiently tracks the language of Section 32.45 of the Penal Code. In

doing so, the indictment is indeed sufficient to “charge an offense,” as required by

Article V, Section 12 of the Texas Constitution in order to confer jurisdiction on

the trial court. TEX. CONST. art. V, § 12. See also Cook v. State, 902 S.W.2d 471,

482-483 (Tex.Crim.App. 1995) (J. Maloney concurring).

      However, Mr. Daniels does not suggest that the indictment is

constitutionally infirm. Rather, the indictment is substantively defective, pursuant

to Article 27.08(1) of the Texas Code of Criminal Procedure, which holds that

exception to the substance of an indictment may be made when “it does not appear

therefrom that an offense has been committed by the defendant.” TEX. CODE CRIM.

PROC. art. 27.08(1). “‘That it does not appear that an offense was committed’ is far

different from ‘that it does not charge an offense.’” Cook, 902 S.W.2d at 482 (J.

Maloney concurring).

       It is possible, as in this case, for an indictment to satisfy the constitutional

requirement to “charge the commission of an offense,” while containing fatal and




                                          8
substantive defects in which it does not “appear that an offense was committed.”

As Judge Maloney succinctly explained in his concurring opinion in Cook v. State:

      Under a true reading of the provisions, the constitution requires that
      an indictment charge the commission of an offense; article 27.08
      provides that it is a defect of substance “that it does not appear that an
      offense was committed.” The constitution speaks in terms of what is
      necessary to charge the commission of an offense; article 27.08
      speaks in terms of whether it appears from the allegations that an
      offense was committed.

      … In order to charge “the commission of an offense” an indictment
      must allege enough so that the offense alleged can be identified. This
      vests the court with subject matter jurisdiction. … Rather, if enough is
      alleged to enable the identification of an offense for purposes of
      subject matter jurisdiction under the constitution, but the allegations
      are nevertheless deficient so that technically it does not appear that an
      offense was committed, there is a waivable defect of substance.

Id. at 482-83.

      It is well-settled law that substantive defects under Article 27.08(1) include,

among other things, failure to allege an element of the offense. See Studer v. State,

799 S.W.2d 263, 267 (Tex.Crim.App. 1990).             In this case, the indictment

referenced every element of Misappropriation of Fiduciary Property according to

Section 32.45, but alleged elements that are legal impossibilities or misidentified

certain elements of the crime. Such defects should be considered as a failure to

allege an element of the offense, such that it is no longer apparent from the face of

the indictment that an actual criminal offense was committed by the defendant.




                                          9
      Said another way, it is not enough for the State to simply fill in the blanks of

the statute. In order to meet both the constitutional and statutory standards of a

valid indictment, it must correctly allege the elements of the crime. Alleging a

legal impossibility, or misidentifying an essential element of the crime, is fatal to

the indictment in the same way as omitting an element altogether.

      In this case, the indictment was fatally flawed in three ways, as discussed

more fully below, even though it tracked the language of the correct criminal

statute. First, the indictment named the 157th District Court as the owner of the

vehicle, when: (1) that is a legal impossibility; and (2) Mr. Daniels at all times

retained legal ownership over the vehicle.        Accordingly, the indictment fails

because the State both alleged a legal impossibility and misidentified the correct

element of ownership.

      Second, the indictment alleged that the misapplication of the vehicle took

place while Mr. Daniels was acting in a fiduciary capacity as a co-surety to the

surety bond issued by the 157th District Court to Mr. Rodriguez. However, as a

matter of law, Mr. Daniels’ duty as co-surety was to pay the bond amount, should

anything happen to the vehicle. The bond did not convey a fiduciary duty to Mr.

Daniels to care for the vehicle itself, nor did the bond establish that Mr. Daniels

owed that fiduciary duty to the District Court.




                                         10
      Finally, the indictment alleges that Mr. Daniels’ selling of the vehicle

created a substantial risk of loss to the 157th District Court. The existence of the

bond necessarily eliminates any such risk as a matter of law. And furthermore, the

statute requires a substantial risk of loss to the owner of the vehicle – in this case,

Mr. Daniels and not the 157th District Court.

      For all these reasons, the trial court should have granted Mr. Daniels’ pre-

trial challenges to the indictment and should have dismissed the indictment

because it is not apparent from the allegations that an actual crime was committed.

Whose car is it, anyway?

      Mr. Daniels argued before the trial court that the 157th District Court cannot

legally own property, and provided ample evidence of Mr. Daniels’ possession and

ownership of the vehicle including: (1) an agreement between Mr. Daniels and Mr.

Rodriguez in which Mr. Rodriguez gave Mr. Daniels the car in partial payment for

legal services; (2) a signed and filed transfer of title document; and (3) an actual

title issued to Mr. Daniels. All of these documents were dated prior to the filing of

the asset forfeiture lawsuit.

        The State countered that the 157th District Court had the “greater right of

possession” of the vehicle, as contemplated under the Texas Penal Code, which

defines “owner” as “a person who… has title to the property, possession of the

property, whether lawful or not, or a greater right to possession of the property


                                          11
than the actor.” TEX. PENAL CODE § 1.07(a)(35)(A). RR 4:6. The State’s argument

fails because it ignores Mr. Daniels’ title and possession of the vehicle, and the

provisions of the asset forfeiture statute, Article 59.02 of the Texas Code of

Criminal Procedure.

        The 157th District Court did not have a greater right of possession over the

vehicle which would override Mr. Daniels’ title and actual possession. The fact

that the State filed an asset forfeiture lawsuit does not somehow confer ownership

upon the district court which randomly draws the case. Article 59.02 of the Texas

Code of Criminal Procedure governs the procedure of asset forfeiture cases, and

speaks directly to this issue.

        First, Article 59.02 holds that the property subject to seizure “may be

replevied by the owner or interest holder, on execution of a good and valid bond

with sufficient surety in a sum equal to the appraised value of the property

replevied.” TEX. CODE CRIM. PROC. art. 59.02(b) (emphasis added). Thus, the

statute presumes that a person (likely a party to the forfeiture suit) is the “owner,”

not the court presiding over the case. More importantly, Article 59.02 specifically

holds that ownership does not revert to the Court or the State during the pendency

of the lawsuit:

      Notwithstanding any other law, if property is seized from the
      possession of an owner or interest holder who asserts an ownership
      interest, security interest, or lien interest in the property under
      applicable law, the owner or interest holder’s rights remain in effect
                                         12
      during the pendency of proceedings under this chapter as if
      possession of the property had remained with the owner or interest
      holder.

TEX. CODE CRIM. PROC. art. 59.02(d) (emphasis added).

        Article 59.02 makes clear that the District Court was not, as a matter of

law, the “owner” of the vehicle. Mr. Daniels secured title prior to the filing of the

lawsuit and asserted his interest in the forfeiture court. The law both defines him

as the owner and secures ownership rights with him during the pendency of the

forfeiture lawsuit.

        This case is analogous to Martinez v. State, in which the Ninth Court of

Appeals rendered an acquittal in a misappropriation of fiduciary property case for

the failure to prove ownership as a matter of law. In that case, the State alleged

that Mr. Martinez misapplied property of the Gospel Tabernacle while holding the

property as a trustee. Martinez v. State, 753 S.W.2d 165, 166 (Tex.App.—

Beaumont 1988). A jury convicted Martinez, and he appealed, claiming evidence

was insufficient to prove a substantial risk of loss to Gospel Tabernacle, or that he

held property as a trustee for Gospel Tabernacle, because Gospel Tabernacle did

not legally exist as an entity. Id. at 167. The Ninth Court agreed, holding that,

because the Gospel Tabernacle “was not in existence as a matter of law,” at time of

the alleged misappropriation, the “State failed to prove that the owner was ‘the

membership of the Gospel Tabernacle,’” as alleged in the indictment. Id.


                                         13
        As in the Martinez case, the State here has alleged a legal impossibility in

the ownership element of the crime. In Martinez, the defendant did not actually

commit the crime alleged because it is legally impossible to misappropriate

property from an entity that does not exist.       In the same way, it is legally

impossible for Mr. Daniels to misappropriate property from himself. It is of little

consequence that the Martinez case dealt with the issue as sufficiency of the

evidence, rather than a pre-trial motion to quash or dismiss the indictment. The

holding is dispositive in either setting. Neither the jury during trial, nor the judge

prior to trial, are permitted to disagree with the law and allow for a conviction

based upon a legally defective indictment.

        Accordingly, the trial court erred in denying Mr. Daniels’ exception to the

substance of the indictment, and erred in holding that ownership was a fact issue to

be determined by the jury. The jury would not be permitted to disagree with the

law, as set out in Section 1.07(a)(35) and Article 59.02. As a matter of law, the

indictment should have been dismissed as substantively defective.

Mr. Daniels upheld his duty as a surety.

        Section 32.45 of the Penal Code provides that a person commits the

offense of Misapplication of Fiduciary Property if he:

      intentionally, knowingly, or recklessly misapplies property he holds
      as a fiduciary or property of a financial institution in a manner that
      involves substantial risk of loss to the owner of the property or to a
      person for whose benefit the property is held.
                                         14
TEX. PENAL CODE § 32.45(b) (emphasis added).             A fiduciary is defined, in

pertinent part, as “any … person acting in a fiduciary capacity, but not a

commercial bailee…” Id. at § 32.45(a)(1)(C).

        “Fiduciary capacity” has been defined as encompassing “only special

relationships of confidence or trust in which one party is obligated to act primarily

for the benefit of the other.” Berry v. State, 424 S.W.3d 579, 580 (Tex.Crim.App.

2014). In reaching this holding, the Berry court analyzed the meaning and purpose

of a fiduciary, and observed:

      [T]he plain meaning of a fiduciary is one “who is required to act for
      the benefit of another person on all matters within the scope of their
      relationship.”
      …
      An individual who acts as a fiduciary is further defined as “one who
      owes to another the duties of good faith, trust, confidence and
      candor,” or, “[o]ne who must exercise a high standard of care in
      managing another's money or property.”
      …
      [O]ne acts in a “fiduciary capacity” for purposes of the misapplication
      statute if his relationship with another is based not only on trust,
      confidence, good faith, and utmost fair dealing, but also on a
      justifiable expectation that he will place the interests of the other party
      before his own.

Id. at 583, 585.

        The State alleged that Mr. Daniels held the vehicle as a fiduciary because

he was a co-surety to the bond issued by the Court. However, Mr. Daniels’ role as




                                          15
co-surety does not create the type of fiduciary relationship intended by the

misapplication of fiduciary property statute.

        As a surety to the bond issued by the court, Mr. Daniels was obligated to

ensure payment of the bond amount, should the property not be returned to the

court. CR 1:273. The surety bond specifically stated that Mr. Daniels, as co-

surety, was bound to the State of Texas, in the sum of $23,000.00. Id. It did not

confer fiduciary responsibility to Mr. Daniels for the vehicle.

        The law has long held that a surety’s duty is to “make good any breach of

official duty of its principal, whether or not tainted with fraud not because of

anything the surety may have done or failed to do, but because the surety has so

bound itself by its undertaking.” Mills v. Baird, 147 S.W.2d 312, 316 (Tex.App.—

Austin 1941, writ ref'd).    In this case, Mr. Daniels at all times fulfilled his

obligation as a surety by agreeing to pay the amount of the bond.

        Importantly, Mr. Daniels was not holding the vehicle as a fiduciary to

anyone else, as contemplated by the criminal statute. As discussed above, he was

holding the property as the owner and at all times retained ownership rights.

Therefore, his possession of the vehicle was not conferred upon him in a

relationship of trust in which he was required to act for the benefit of someone

else. He was simply holding his own property, awaiting the outcome of the asset

forfeiture lawsuit. At the time he sold the car, no judgment had been made giving


                                         16
the State the right to seize the vehicle. Accordingly, Mr. Daniels was obligated

only to provide the State of Texas with $23,000, should the vehicle be judged to be

forfeited as contraband and not available to be handed over to the State.

        The trial court erred in denying Mr. Daniels Motion to Quash and

Exception to the Substance of the Indictment because, as a matter of law, he was

not acting as a fiduciary when he sold the vehicle.

Risk vs. Reward

        The indictment is also fatally flawed because, as a matter of law, there can

be no substantial risk of loss to the 157th District Court, as alleged. First, the 157th

District Court is not the owner of the vehicle and cannot, as a matter of law, have

sustained any loss by Mr. Daniels’ selling it. As discussed above, Mr. Daniels was

the owner of the vehicle and cannot legally cause himself risk of loss by selling his

own property. Even if this Court finds that Mr. Daniels was not the legal owner of

the vehicle, there can be no substantial risk of loss as a matter of law because the

surety bond necessarily eliminates all such risk.

        “Substantial risk of loss,” as contemplated by Section 32.45, has been

interpreted to mean that it must be “more likely than not” that the property would

be lost. Demond v. State, 452 S.W.3d 435, 445(Tex.App.—Austin 2014) (citing

Casillas v. State, 733 S.W.2d 158, 164 (Tex.Crim.App. 1986)). On one hand, it is

obvious that selling a vehicle means it is “more likely than not” that the vehicle


                                          17
would be lost. However, the purpose of the surety bond – and indeed the forfeiture

lawsuit itself – is to procure the value of the vehicle, rather than the property itself.

With the bond in place, even if the property is lost, the value is still assured to be

awarded to the State of Texas as a matter of law.

        In fact, the State was entitled to receive – and did eventually receive – over

$23,000.00 for a vehicle that Mr. Daniels was only able to sell for a $12,000.00

trade-in value. CR 1:266. So rather than a substantial risk of loss, the State

actually received twice the value of vehicle.

        The surety bond is a legally binding document, with legal effect. The trial

court was mistaken in concluding that a jury could weigh and consider whether or

not, factually, the bond eliminated the risk of loss. It is not up for interpretation by

a jury whether or not Mr. Daniels obligated himself legally to pay the bond in the

amount of $23,000.00, or whether the State had the legal right to obtain that sum.

As a matter of law, the surety bond ensures such payment.

As a matter of fact, it’s a matter of law.

        This case turns on which issues can be determined prior to trial as matters

of law, and which issues remain in the province of the jury as the trier of fact. The

trial court’s ruling essentially delegated to the jury its responsibility of determining

the law. The State cannot be permitted to proceed with an indictment merely

because it fills in the blanks of a criminal statute. This Court must hold the State to


                                             18
a higher burden than that, and require the State to make allegations that are legally

sound before subjecting a citizen to a trial and possible loss of liberty.

                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, Mr. Daniels respectfully

requests that this Court reverse the trial court’s ruling on his pre-trial motions and

render a judgment of acquittal.



                                                   Respectfully submitted,

                                                   __/s/ Heather M. Lytle
                                                   HEATHER M. LYTLE
                                                   SBN: 24046487
                                                   202 Travis Street, Suite 300
                                                   Houston, Texas 77002
                                                   Tel. 713-204-7060
                                                   Fax 281-786-4539
                                                   heather@lytle-law.com

                                                   ATTORNEY FOR APPELLANT
                                                   LEIROI MICKELE DANIELS




                                           19
                     CERTIFICATE OF COMPLIANCE

      I certify that this brief complies with Texas Rule of Appellate Procedure 9.4.

It was prepared in 14-point Times New Roman font. It contains 5,367 words.

                                                ___/s/ Heather M. Lytle_______
                                                HEATHER M. LYTLE


                         CERTIFICATE OF SERVICE

      This is to certify that on the 28th day of October, 2015, a true and correct

copy of the foregoing instrument was served upon the following counsel of record

in accordance with the Texas Rules of Appellate Procedure:



Alan Curry
Chief Prosecutor, Appellate Division
Harris County District Attorney’s Office
1201 Franklin St., Suite 600
Houston, Texas 77002


                                                /s/ Heather M. Lytle
                                                HEATHER M. LYTLE




                                           20
              No. 14-15-00111-CR

IN THE FOURTEENTH COURT OF APPEALS
      SITTING IN HOUSTON, TEXAS


        LEIROI MICKELE DANIELS,
                          Appellant,

                        vs.

              STATE OF TEXAS,
                         Appellee.


        On appeal from Cause No. 1399598
in the 230th District Court of Harris County, Texas


   APPENDIX TO APPELLANT’S BRIEF



                                   HEATHER M. LYTLE
                                   SBN: 24046487
                                   202 Travis Street, Suite 300
                                   Houston, Texas 77002
                                   Tel. 713-204-7060
                                   Fax 281-786-4539
                                   heather@lytle-law.com

                                   ATTORNEY FOR APPELLANT
                                   LEIROI MICKELE DANIELS
                               TABLE OF CONTENTS

Request for Abstract of Judgment – November 18, 2010 ..................... Appendix A

Request for Abstract of Judgment - January 8, 2014.............................. Appendix B
APPENDIX A
Un
   o   ffic
           ial
              C
                 op
                    yO
                        ffic
                            e
                               of
                                 C
                                    hr
                                      is
                                         Da
                                            nie
                                               lD
                                                  ist
                                                        ric
                                                              tC
                                                                    ler
                                                                       k
Un
     of
       fic
          ial
             C
                o   py
                      O
                         ffic
                             e
                                of
                                  C
                                     hr
                                       is
                                          Da
                                             nie
                                                lD
                                                   ist
                                                         ric
                                                             t   Cl
                                                                    er
                                                                      k
Un
  of
    fic
        i   al
               Co
                 py
                   O
                        ff
APPENDIX B
                                                              2/7/2014 3:27:17 PM
                                        Chris Daniel - District Clerk Harris County
                                                             Envelope No. 417418
                                                                 By: Duane Gilmore




                                            k
                                         ler
                                      tC
                                  ric
                               ist
                              lD
                           nie
                         Da
                      is
                      hr
                    C
                 of
                 e
             ffic
           yO
        op
       C
   ial
  fic
  of
Un
Un
  of
    fic
       ial
             C
                  op
                     yO
                         ffic
                             e
                                of
                                  C
                                     hr
                                       is
                                          Da
                                             nie
                                                lD
                                                   ist
                                                      ric
                                                          tC
                                                             ler
                                                                k
