Affirmed in Part; Reversed and Rendered in Part and Opinion filed June 30,
2015.




                                   In The

                  Fourteenth Court of Appeals

                            NO. 14-14-00306-CR
                            NO. 14-14-00307-CR
                            NO. 14-14-00308-CR
                            NO. 14-14-00309-CR
                            NO. 14-14-00310-CR

                     ERIC L. BAUMGART, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee

           On Appeal from County Criminal Court at Law No. 6
                           Harris County, Texas
  Trial Court Cause Nos. 1909495, 1909496, 1909497, 1909498, and 1909499

                               OPINION


     A jury convicted appellant Eric L. Baumgart of five counts of violating the
Private Security Act. See Tex. Occ. Code Ann. §§ 1702.102 & 1702.108 (West
2012 & Supp. 2014). For each offense, the trial court assessed punishment at
confinement for one year in the Harris County Jail, probated for two years.
Appellant filed a timely notice of appeal in each case. We affirm in part and
reverse and render in part.

                                  SUFFICIENCY OF THE EVIDENCE

       In his first and second issue, appellant claims the evidence is legally
insufficient to support his conviction in trial court cause number 1909495 on two
grounds. The record reflects this offense arose from appellant acting as a guard for
a construction zone on US 59. The first ground regards the allegation that appellant
acted as a guard on a contractual basis for Alejandro Lopez. The second ground
concerns the allegation that appellant acted as a guard on private property.1

       In this case, the indictment alleged appellant “did then and there unlawfully,
intentionally or knowingly act as a guard company by engaging in the business of a
guard on a contractual basis for another person, namely ALEJANDRO LOPEZ to
prevent, observe or detect unauthorized activity on private property, without
holding a license as a security services contractor.” Appellant’s first issue contends
there is no evidence that he engaged in the business of a guard on a contractual

       1
        “A person acts as a guard company for the purposes of this chapter if the person employs
an individual described by Section 1702.323(d) or engages in the business of or undertakes to
provide a private watchman, guard, or street patrol service on a contractual basis for another
person to:
       (1) prevent entry, larceny, vandalism, abuse, fire, or trespass on private property;
       (2) prevent, observe, or detect unauthorized activity on private property;
        (3) control, regulate, or direct the movement of the public, whether by vehicle or
otherwise, only to the extent and for the time directly and specifically required to ensure the
protection of property;
        (4) protect an individual from bodily harm including through the use of a personal
protection officer; or
       (5) perform a function similar to a function listed in this section.”
Tex. Occ. Code Ann. § 1702.108 (West 2012).

                                                 2
basis for Alejandro Lopez. Appellant’s second issue argues there is no evidence he
acted as a guard on private property. We begin with appellant’s second issue.

      Evidence was introduced that Alejandro Lopez was supervising the
construction crew doing repairs on a bridge on US 59. Lopez worked for Main
Lane Industries, a subcontractor for the Texas Department of Transportation
(“TxDot”). Lopez testified the portion of US 59 that was under repair is not private
property. He also testified the public did not have access to the part of the highway
being repaired. Deputy John E. Clay of the Harris County Sheriff’s Office testified
the public did not have access to that area of the road because it was “marked off”
with barrels but stated it is “public roadway” and agreed it is not private property.
Investigator Kirk Bonsal with the District Attorney’s Office also testified the
public was not able to access the part of the road within the traffic cones. Adam
Galland, the Assistant Area Engineer at the North Harris County Area Office for
TxDot, testified lanes are closed to “keep the public out.”

      The State argues that since the area in question was cordoned-off with
barrels and a security guard was present to keep the public out, that section of the
roadway was a private area. The State asserts that if an area falls outside the
definition of “public place” in the Texas Penal Code, it is private property. See
Tex. Pen. Code Ann. § 1.07(a)(40) (West Supp. 2014). Although the definition of
“public place” expressly includes highways, the State argues it was private because
it was not accessible to the public. The State cites two cases in support of its
argument. In State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.—San Antonio
2007, no pet.), the court concluded a gated community was a public place as
defined by the penal code.

      The penal code defines “public place” as any place to which the
      public or a substantial group of the public has access and includes, but
      is not limited to, streets, highways, and the common areas of schools,
                                          3
      hospitals, apartment houses, office buildings, transport facilities, and
      shops. Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2006). The
      definition of public place is cast in broad language. Shaub v. State, 99
      S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.); State v.
      Nailor, 949 S.W.2d 357, 359 (Tex. App.—San Antonio 1997, no
      pet.). The relevant inquiry is whether the public has access to the
      place. Shaub, 99 S.W.3d at 256; Loera v. State, 14 S.W.3d 464, 467–
      68 (Tex. App.—Dallas 2000, no pet.). The definition of public place is
      open–ended and leaves discretion to the courts to expand its
      parameters where appropriate. Loera, 14 S.W.3d at 467.

Id. at 358-59. In Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.—Fort Worth
2003, no pet.), the court similarly concluded a marina was a public place noting
“the entire marina area appears to be accessible to anyone who wants to use it.”

      These cases are illustrative of what is a public place but we disagree that any
area that is temporarily closed off within a public place becomes private property.
The penal code expressly states a public place includes highways and there is no
limitation in the statute for a partial and temporary closure. The State cites no
authority, and we are aware of none, supporting its premise that a public place is
converted into private property when a portion of it is temporarily closed to public
access.

      Because the alleged offense did not occur on private property, a rational trier
of fact could not have found all the elements of the offense beyond a reasonable
doubt. Accordingly, appellant’s second issue is sustained and the judgment of the
trial court in trial court cause number 1909495 is reversed and a judgment of
acquittal is entered. In light of this, we need not address appellant’s first issue.




                                            4
                           DENIAL OF MOTIONS TO QUASH

       In his third issue, appellant claims the trial court erred in denying his
motions to quash the indictments on the grounds the State failed to negate an
exception to the charged offense. In light of our disposition of appellant’s second
issue, we only consider this issue as to the remaining offenses.2

       The prosecuting attorney must negate the existence of an exception in the
indictment of the offense and prove beyond a reasonable doubt that the defendant
or defendant’s conduct does not fall within the exception. See Tex. Pen. Code.
Ann. § 2.02 (West 2011). Generally, where a penal statute embraces an exception
which is part of the statute itself, the State must negate the exception in the
charging instrument. McElroy v. State, 720 S.W.2d 490, 493 (Tex. Crim. App.
1986). See also Hicks v. State, 18 S.W.3d 743, 744 (Tex. App.—San Antonio
2000, no pet.). This rule applies to penal statutes included in the civil statutes as
well as exceptions to criminal conduct in the penal code. McElroy v. State, 720
S.W.2d at 492. Failing to negate an exception is the same as failing to allege an
essential element of the offense and renders the indictment void. Id.

       “Where an exception is in a separate section from the provision that states
the offense and a prima facie case can be made without proof negating the
exception, it is not an essential requirement that it be negated in the information or
complaint.” McClain v. State, 14-97-00355-CR, 1997 WL 312309, at *1-2 (Tex.
App.—Houston [14th Dist.] June 12, 1997, pet. ref’d) (mem. op.) (not designated
for publication) (citing American Plant Food Corp. v. State, 508 S.W.2d 598, 604-
05 (Tex. Crim. App. 1974); and Bragg v. State, 740 S.W.2d 574, 576 (Tex. App.—
Houston [1st Dist.] 1987, pet. ref’d)). The exception for law enforcement personnel

       2
         These offenses all arose from appellant’s work as a security guard for Humble Bingo
Unit Trust.

                                             5
is in a separate section from the provision stating the offense — “Subchapter N.
Exceptions” of “Chapter 1702. Private Security.” See Tex. Occ. Code Ann. §
1702.322 (West 2012 & Supp. 2014). A prima facie case of acting as a security
services contractor without a license can be made without proof negating the
exception. See id. Therefore, the State was not required to negate the exception in
the indictments and the trial court did not err in denying the motions to quash.
Appellant’s third issue is overruled.

                         ERROR IN THE COURT’S CHARGE

      Appellant’s fourth and final issue contends there was error in the court’s
charge. In light of our disposition of appellant’s second issue, we only consider this
issue as to the remaining offenses.

      Appellant argues the trial court erred in failing to apply the law regarding
law enforcement personnel to the facts of the case, see Tex. Occ. Code Ann. §
1702.322, and in failing to instruct the jury that a reasonable doubt on the issue
required acquittal. Appellant’s initial arguments are premised upon this court first
finding section 1702.322 is a defensive issue, not an exception. As noted above,
section 1702.322 is an exception to the offense. Appellant later asserts that
regardless of whether section 1702.322 is an exception or a defense, the trial court
was obligated to include an application paragraph in connection with that section.
We will consider whether the trial court erred in not applying the law regarding the
law enforcement exception to the facts of the case in the charge given to the jury.

      The abstract portion of the jury charge defines the charged offense as

follows:

              It is unlawful for any person to engage in the business
              of, or to perform any service as a guard company, or to
              offer his services in such capacities or engage in any
                                          6
             business or business activity required to be licensed by
             the Texas Private Security Act, unless the person holds
             a license as a security services contractor.

The abstract portion of the charge also provides a description of section
1702.322’s law enforcement personnel provision:


             It is not a violation of the Private Security Act for
             a person who has full-time employment as a peace
             officer, to receive compensation for private employment
             on an individual or independent contractor basis as a
             guard, if the officer:
                    (A) is employed in an employee-employer
             relationship or is employed on an individual contractual
             basis;
                    (B) is not in the employ of another peace
                    officer;
                    (C) is not a reserve officer; and
                    (D) works as a peace officer on average at least
             32 hours a week, is compensated by the state or
             political subdivision of the state at the rate of minimum
             wage or higher, and is entitled to all employee benefits
             offered to a peace officer by the state or political
             subdivision.
Following the abstract section of the jury charge, the application paragraph
states:

             Now, therefore, if you believe from the evidence
             beyond a reasonable doubt that…the defendant, ERIC
             L. BAUMGART, did then and there unlawfully,
             intentionally or knowingly act as a guard company by
             engaging in the business of a guard on a contractual
             basis for another person…to prevent, observe or detect
             unauthorized activity on private property, without
             holding a license as a security services contractor, then
             you shall find the defendant guilty.



                                        7
The charge further instructed the jurors that:

            The burden of proof in all criminal cases rests upon the
            State throughout the trial and never shifts to the
            defendant.
            ...
            The prosecution has the burden of proving the defendant
            guilty, and it must do so by proving each and every
            element of the offense charged beyond a reasonable
            doubt, and if it fails to do so, you must acquit the
            defendant.


      An application paragraph encompassing the exception could have read as
follows:

             Now, therefore, if you believe from the evidence
             beyond a reasonable doubt that on or about November
             17, 2012, the defendant, ERIC BAUMGART, did then
             and there unlawfully, intentionally, or knowingly act as
             a guard company by engaging in the business of a guard
             on a contractual basis for another person to prevent
             observe or detect unauthorized activity on private
             property, without holding a license as a security services
             contractor, and further find beyond a reasonable doubt
             that: the defendant did not work as a peace officer on
             the average of at least 32 hours a week or; that the
             defendant was not compensated by the state or a
             political subdivision of the state at the rate of the
             minimum wage or higher or; that the defendant was not
             entitled to all employee benefits offered to a peace
             officer by the state or a political subdivision, then you
             shall find the defendant guilty.


      We can find no authority, nor have the parties cited any authority, that stands
for the proposition that the failure to include an application paragraph regarding a
statutory exception to an offense is error. We will assume without deciding that
                                          8
there was in fact error. At the outset, we note that there was no objection to the
court’s charge. Therefore, any harm must be egregious to require reversal.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). An
egregious harm analysis considers: (1) the entire jury charge; (2) the state of the
evidence including the contested issues and the weight of the probative evidence;
(3) the arguments of the parties; and (4) any other relevant information revealed
by the record of the trial as a whole. Id. Jury charge error is egregiously harmful
if it affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory. Id. Egregious harm is a difficult standard to
prove. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

      Regarding the initial factor, a review of the entire jury charge indicates
any error did not result in egregious harm. The “law enforcement personnel” issue
was not presented in the application paragraph. However, it was explained in detail
in the abstract section of the jury charge. A proper recitation of the law in the
abstract section of the charge minimizes error in the application paragraph. Nava v.
State, 415 S.W.3d 289, 298 n.21 (Tex. Crim. App. 2013).

      The application paragraph contained in the charge instructed jurors to find
appellant guilty only if he “unlawfully” acted as a guard without a license. The
jury was required to find appellant was not a law enforcement officer before
finding him guilty of the offense. A review of the entire charge indicates appellant
was not egregiously harmed by any error.

      The second factor looks at the state of the evidence. In determining whether
egregious harm occurred with regard to an error relating to an exception, we must
consider the plausibility of the evidence raising the exception. Villarreal v. State,
453 S.W.3d 429, 436 (Tex. Crim. App. 2015).               We conclude the evidence
negating the exceptions for law enforcement personnel was strong.

                                           9
      To negate an exception under this statute, the State was required to prove
that appellant: (1) did not work as a peace officer at least 32 hours per week on
average; (2) was not compensated by a rate equal to minimum wage at least; and
(3) was not entitled to all employee benefits offered to a peace officer. Tex. Occ.
Code Ann. § 1702.322(1) (West 2012). Chad Pafford3 testified on behalf of
appellant that he worked more than 32 hours per week on average. However, on
cross examination by the State, Pafford admitted there was no documentation to
support this claim. Pafford stated that appellant worked on “the honor system.”
The Liberty County Treasurer, Kim Harris, testified on behalf of the State that
appellant was never a paid employee of Liberty County.

      As to the minimum-wage requirement, Pafford stated that appellant never
received a paycheck while working as a full-time officer for nearly two years.
Pafford testified that appellant’s sole compensation was the use of a “take-home
patrol car” and the use of unspecified “county equipment.” Pafford considered the
value of the use of these items to be more than minimum wage. The car was a
2000 Ford Crown Victoria with approximately 260,000 miles. Pafford did not
report this “compensation” to the Liberty County Tax Assessor, the IRS, or any
other taxing authority.

      With regard to the benefits requirement, Harris stated that county
employees, including law enforcement personnel, are offered various county
benefits. Her office maintains files for workmen’s compensation benefits for all
county employees. There was no record of appellant receiving any benefits.

      On the whole, the State’s evidence regarding the exception for law
enforcement personnel was strong. First, there was no documentation to support
that appellant worked 32 hours per week on average. Furthermore, Pafford’s
      3
          Pafford was the elected constable who gave appellant a job.

                                                10
reliance on “the honor system” reflects that he did not verify appellant’s work
hours. The record demonstrates that Pafford did not have actual knowledge of the
amount of hours worked by appellant.

        Next, there is no evidence that appellant was paid at least minimum wage.
Appellant received no pay at all. The record reflects no evidence was presented
regarding what minimum wage was at the time of the offense or the value of
appellant’s use of the county car and other county equipment.

        As to the next requirement, Pafford testified on cross examination by the
State that he did not know if appellant was entitled to all the benefits offered by
Liberty County. Pafford’s belief that appellant was entitled to receive workmen’s
compensation benefits was contradicted by Harris and her knowledge of the
Liberty County personnel files.

        Given the overall state of the evidence, it is highly unlikely the jury could
have found that the State failed to negate any of the exceptions under the law
enforcement personnel exception to the statute. Additionally, the State brought
forth evidence that appellant was not a full-time officer (as required under section
1702.322). At the time of his arrest at the Lopez construction site, he possessed an
unexpired identification card that identified him as a reserve officer for the
Liberty County Constable. The state of the evidence demonstrates that any
possible error relating to the omission of the exception for law enforcement
personnel in the application paragraph of the charge did not result in egregious
harm.

        We must also consider whether egregious harm occurred as a result of
jury charge error in light of the parties’ arguments. The record reflects that both
parties addressed the exception for law enforcement personnel and applied that
statutory law to the facts of the case. Appellant argued that the State failed to
                                          11
prove that he was not a full-time police officer. The State argued in closing that
they had proved that he was a reserve officer and alternatively that he did not meet
the three requirements. From the arguments the jury would have understood that
the burden was on the State to negate the exception. Therefore, the record clearly
demonstrates that the jury received information applying the law to the facts
despite any error in the jury charge’s application paragraph. Given the foregoing
analysis, we conclude the error, if any, did not cause appellant egregious harm.
Accordingly, we overrule appellant’s fourth issue.

                                   CONCLUSION

      For the reasons set forth above, we reverse the judgment of conviction in
trial court cause number 1909495 and render a judgment of acquittal. The
judgments in trial court cause numbers 1909496, 1909497, 1909498, and 1909499
are affirmed.




                                      /s/    Marc W. Brown
                                             Justice



Panel consists of Justices Christopher, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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