Opinion
Nos. 05-07-00258-CR, 05-07-00259-CR.
Opinion Filed February 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause Nos. F06-00734-X and F06-00735-X.
Before Justices O'NEILL, RICHTER, and LANG.
OPINION
Phillip E. Bridwell appeals the trial court's judgments convicting him of the fraudulent sale of securities in two cases. The jury found Bridwell guilty and assessed his punishment at twenty-five years of imprisonment in each case. Bridwell raises three issues on appeal: (1) the trial court's jury instructions authorized verdicts that deprived him of his right to a unanimous verdict; (2) the trial court did not have jurisdiction to hear the cases and render judgments because the cases were not properly transferred to its docket; and (3) the trial court erred when it instructed the jury that it only had to find $100,000 was alleged in the indictments, rather than instructing the jury to find $100,000 was obtained during the sale of the securities. Bridwell's failure to file a plea to the jurisdiction waived any complaint he may have had with regard to the trial court's jurisdiction in the absence of written transfer orders. We conclude the trial court's jury instructions did not authorize verdicts that deprived Bridwell of his right to a unanimous verdict. Also, we conclude the trial court did not instruct the jury that it only had to find $100,000 was alleged in the indictments and, even if the trial court erred, Bridwell did not suffer egregious harm. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
In cause nos. F06-00734-X and F06-00735-X, Bridwell was indicted for the fraudulent sale of securities in the 283rd Judicial District Court. Bridwell appeared in Criminal District Court No. 6 and entered pleas of not guilty. He did not file a plea to the jurisdiction challenging Criminal District Court No. 6's jurisdiction. The cases against Bridwell were tried to a jury in Criminal District Court No. 6. The jury found Bridwell guilty and assessed his punishment at twenty-five years of imprisonment in each case.II. TRIAL COURT'S JURISDICTION
In issue two, Bridwell argues the trial court did not have jurisdiction to hear the cases and render judgments because the cases were not properly transferred to its docket. He argues the trial court never acquired jurisdiction because the indictments were presented to the 283rd Judicial District Court, but tried in Criminal District Court No. 6, without written transfer orders. Bridwell acknowledges that he did not raise the question of jurisdiction to the trial court and case law requires the issue to be presented to the trial court or it is waived. However, he argues the case law does not cite any constitutional or statutory authority in support of the proposition that a jurisdictional defect can be cured by procedural default and appears to ask this Court to reconsider the issue. The State responds that Bridwell failed to file a plea to the jurisdiction or otherwise challenge the trial court's jurisdiction, and the requirement of a written transfer order is a procedural requirement, not a jurisdictional requirement.B. Applicable Law
Article V, section 8 of the Texas Constitution provides that district court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except where such jurisdiction is conferred by the Constitution or other law on a different court, tribunal, or administrative body. See Tex. Const. art. V, § 8; Tex. Gov't Code Ann. § 24.007 (Vernon 2004). Criminal district courts have original jurisdiction in felony criminal cases. Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). The criminal district courts of Dallas County have concurrent jurisdiction. Tex. Gov't Code Ann. §§ 24.115(d), 24.906(d) (Vernon Supp. 2007). Under article 4.16 of the Texas Code of Criminal Procedure, when two or more courts have concurrent jurisdiction of any criminal offense, the court where the indictment or complaint was first filed retains jurisdiction. See Tex. Code Crim. Proc. Ann. art. 4.16. The purpose of article 4.16 is to prevent any confusion or contention between different courts having concurrent jurisdiction. Banks v. State, 503 S.W.2d 582, 584 (Tex.Crim.App. 1974); Flores v. State, 487 S.W.2d 122, 125 (Tex.Crim.App. 1972); Ex parte Lohse, 157 Tex. Crim. 488, 491, 250 S.W.2d 215, 217 (Tex.Crim.App. 1952); Mills v. State, 742 S.W.2d 831, 835 (Tex.App.-Dallas 1987, no pet.); Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.). Its purpose is not to shield an accused from prosecution. Flores, 487 S.W.2d at 125; Sharkey, 994 S.W.2d at 419; . However, in any county in which there are two or more district courts, the judges of those courts may, in their discretion, transfer any criminal case or proceeding on their dockets to the docket of one of those other district courts. See Tex. Gov't Code Ann. § 24.303(a) (Vernon 2004). Also, in counties having two or more district courts, "the judges of the courts may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts." Tex. Gov't Code Ann. § 24.304; Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. ref'd). Accordingly, although a specific district court may impanel a grand jury, it does not necessarily follow that all cases returned by that grand jury are assigned to that court. Bourque, 156 S.W.3d at 678; see also Moore v. State, 36 Tex. Crim. 88, 35 S.W. 668 (Tex. Crim App. 1896) (nothing in Texas Constitution prohibiting this practice). The fact that no transfer order is contained in the record is a procedural error, not a jurisdictional matter. Lemasurier v. State, 91 S.W.3d 897, 899 (Tex.App.-Fort Worth 2002, pet. ref'd); Evans v. State, 61 S.W.3d 688, 690 (Tex.App.-Fort Worth 2001, no pet.); Sharkey, 994 S.W.2d at 419; Garcia v. State, 901 S.W.2d 731, 732 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). The absence of a transfer order in the record does not render the actions of the transferee court void. Flores, 487 S.W.2d at 125; Ex parte Lohse, 250 S.W.2d at 217; Lemasurier, 91 S.W.3d at 899; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 732-33. Rather, it merely makes the transferee court's action subject to a timely plea to the jurisdiction. Lemasurier, 91 S.W.3d at 899; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 733. If a defendant fails to file a timely plea to the jurisdiction, he waives any right to complain that a transfer order does not appear in the record. Flores, 487 S.W.2d at 125; Daniels v. State, 171 Tex. Crim. 596, 597, 352 S.W.2d 267, 268 (Tex.Crim.App. 1961); McNeal v. State, 171 Tex. Crim. 180, 181, 346 S.W.2d 345, 346 (Tex.Crim.App. 1961); Gower v. State, 169 Tex. Crim. 81, 84, 332 S.W.2d 328, 330 (Tex.Crim.App. 1960) (op. on reh'g); Mills, 742 S.W.2d at 835; Lemasurier, 91 S.W.3d at 899-900; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 733.C. Application of the Law to the Facts
The indictments against Bridwell were filed in the 283rd Judicial District Court. There are no written orders transferring the cases against Bridwell from the 283rd Judicial District Court to Criminal District Court No. 6. Bridwell did not file a plea to the jurisdiction or otherwise challenge the jurisdiction of Criminal District Court No. 6. Bridwell appeared in Criminal District Court No. 6 and entered pleas of not guilty. After a trial in Criminal District Court No. 6, a jury found Bridwell guilty and assessed his punishment at twenty-five years of imprisonment for each offense. As a result, Criminal District Court No. 6 entered judgments against Bridwell. Accordingly, we conclude Bridwell waived any complaint he may have had with regard to the trial court's jurisdiction in the absence of written transfer orders because he failed to file a plea to the jurisdiction or otherwise challenge the trial court's jurisdiction. See Flores, 487 S.W.2d at 125; Daniels, 352 S.W.2d at 268; McNeal, 346 S.W.2d at 346; Gower, 332 S.W.2d at 330; Mills, 742 S.W.2d at 835; Lemasurier, 91 S.W.3d at 899-900; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 733. Bridwell has acknowledged that case law does not support his argument, but asks this Court to reconsider this issue because the existing case law does not cite to any constitutional or statutory authority to support the proposition that a jurisdictional defect can be cured by a procedural default. The fact that no transfer orders are contained in the record is a procedural error, not a jurisdictional matter. Lemasurier, 91 S.W.3d at 899; Evans, 61 S.W.3d at 690; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 732. Further, we disagree with Bridwell's assertion that there is no statutory authority and decline to revisit this well-settled issue. See Tex. Gov't Code Ann. §§ 24.303(a), 24.304, 24.115(d), 24.906(d); Flores, 487 S.W.2d at 125; Daniels, 352 S.W.2d at 268; McNeal, 346 S.W.2d at 346; Gower, 332 S.W.2d at 330; Mills, 742 S.W.2d at 835; Lemasurier, 91 S.W.3d at 899-900; Sharkey, 994 S.W.2d at 419; Garcia, 901 S.W.2d at 733. Issue two is decided against Bridwell.III. JURY CHARGE ERROR
In issues one and three, Bridwell argues the trial court erred because the jury instructions authorized verdicts that deprived him of his right to a unanimous verdict and instructed the jury it only had to find $100,000 was alleged in the indictments, rather than instructing the jury to find $100,000 was obtained during the sale of the securities.A. Standard of Review
Texas Code of Criminal Procedure article 36.19 prescribes the manner of appellate review of jury charge error. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). Appellate review of error in a jury charge involves a two-step process: (1) the determination of whether an error actually exists in the jury charge; and (2) an evaluation of whether sufficient harm resulted from the error. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005).B. Unanimous Jury Verdict
In issue one, Bridwell argues the trial court's jury instructions authorized verdicts that deprived him of his right to a unanimous verdict. Bridwell maintains the indictments returned against him alleged three types of nondisclosure that create three separate offenses of securities fraud in each indictment. Bridwell argues the jury should have been instructed that it had to be unanimous about a particular finding of nondisclosure in order to find him guilty. The State responds that the indictments alleged Bridwell engaged in the fraudulent sale of securities by intentionally failing to disclose a material fact and alleged three facts were not disclosed, each fact being a means or mode of committing the offenses. Also, the State argues each indictment alleged an act that involved the same injury, to the same complainant, during the same transaction.1. Applicable Law
Under the Texas Constitution, jury unanimity is required in felony cases. Tex. Const. art. V, § 13; Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App. 2007); Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App. 2006), cert. denied, 127 S.Ct. 386 (2006); Ngo, 175 S.W.3d at 745; see also Harrod v. State, 203 S.W.3d 622, 625 (Tex.App.-Dallas 2006, no pet.); Dolkart v. State, 197 S.W.3d 887, 892 (Tex.App.-Dallas 2006, pet. ref'd). Likewise, the Texas Code of Criminal Procedure requires jury unanimity in all criminal cases. Tex. Code Crim. Proc. Ann. arts. 36.29 (felony cases), 37.02 (misdemeanor cases in district court), 37.03 (misdemeanor cases in county court), 45.034-45.036 (justice and municipal courts); Pizzo, 235 S.W.3d at 714; Jefferson, 189 S.W.3d at 311; Ngo, 175 S.W.3d at 745; see also Harrod, 203 S.W.3d at 625; Dolkart, 197 S.W.3d at 892. A unanimous verdict ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense. See Jefferson, 189 S.W.3d at 311; Dolkart, 197 S.W.3d at 892; see also Pizzo, 235 S.W.3d at 714; Ngo, 175 S.W.3d at 747; Harrod, 203 S.W.3d at 625. When a defendant challenges the unanimity of the jury's verdict, courts engage in a two-step process: (1) an examination of the statutory language to determine the elements of the offense and whether the legislature created a single offense with multiple or alternate modes of commission; and (2) an evaluation of whether the lack of jury unanimity on the alternate means or modes of commission violates due process. See Jefferson, 189 S.W.3d at 311-12; see also Pizzo, 235 S.W.3d at 714. Jury unanimity is required on the essential elements of the offense, but when a statute establishes different modes or means by which an offense may be committed, unanimity is generally not required on the alternate means of commission. Pizzo, 235 S.W.3d at 714; Jefferson, 189 S.W.3d at 311; Dolkart, 197 S.W.3d at 892. Therefore, different modes of commission may be presented in a jury instruction in the disjunctive, when the charging instrument, in a single count, alleged the different means in the conjunctive. Pizzo, 235 S.W.3d at 715. However, when the indictment alleges, in a single count, two separate offenses arising under the same penal code provision, the jury must agree on which offense it finds the defendant committed. Jefferson, 189 S.W.3d at 311; Dolkart, 197 S.W.3d at 892. As a result, it is necessary to identify the essential elements or gravamen of an offense and the alternate modes of commission, if any. 235 S.W.3d at 714. This is accomplished by diagraming the statutory text according to the rules of grammar. Id. The essential elements of an offense are, at a minimum: (1) the subject or defendant; (2) the main verb; (3) the direct object, if the main verb requires a direct object, i.e., the offense if it is a result oriented crime; (4) the specific occasion; and (5) the requisite mental state. Id. at 714-15. The means of commission or nonessential unanimity elements are generally set out in adverbial phrases that describe how the offense was committed. Id. at 715. Such phrases are commonly preceded by the preposition "by." Id. Also, the transitive verb indicates the prohibited conduct about which a jury must be unanimous. See White v. State, 208 S.W.3d 467, 468 (Tex.Crim.App. 2006) (citing Jefferson, 189 S.W.3d at 314 (Cochran, J., concurring)). Federal constitutional due process considerations limit a state's ability to define a crime so as to dispense with the requirement of jury unanimity on the alternate means or modes of committing it. Jefferson, 189 S.W.3d at 312. An evaluation of whether the lack of jury unanimity on the alternate means or modes of commission violates due process "involves an inquiry into the fundamental fairness and rationality of the legislative choice, starting, however, with a presumption that the legislature has made its determination fairly and rationally." Id. Dispensing with jury unanimity does not violate due process when the acts or omissions that combine to establish the offense are basically morally and conceptually equivalent. See Jefferson, 189 S.W.3d at 313. When the acts and omission all involve the same injury, to the same complainant, during the same transaction, with a similar level of culpability, dispensing with jury unanimity does not violate due process. See id. Article 581-29(C)(1) of the Texas Securities Act prohibits the use of fraud or fraudulent practices in connection with the sale or offer of securities. Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(1) (Vernon Supp. 2007); Bridwell v. State, 804 S.W.2d 900, 903 (Tex.Crim.App. 1991) ( Bridwell II), affirming 761 S.W.2d 401, 405 (Tex.App.-Dallas 1988) ( Bridwell I). Article 581-4(F) defines fraud or fraudulent practice to include "an intentional failure to disclose a material fact." Tex. Rev. Civ. Stat. Ann. art. 581-4(F); Hawkins v. State, 656 S.W.2d 70, 72 (Tex.Crim. 1983); Bridwell II, 804 S.W.2d at 903; Bridwell I, 761 S.W.2d at 404. The purpose of the Texas Securities Act is to require sellers of securities to be truthful and provide investors will all material facts, allowing them to make informed decisions. Bridwell I, 761 S.W.2d at 405; Gant v. State, 814 S.W.2d 444, 449 (Tex.App.-Austin 1991, no pet.). An omitted fact is material if there is a substantial likelihood that it would have assumed actual significance in the deliberations of a reasonable investor, in that it would have been viewed by the reasonable investor as significantly altering the total mix of available information used in deciding whether to invest. Bridwell II, 804 S.W.2d at 904; see also Bridwell I, 761 S.W.2d at 404. Under the plain meaning of the statute, a defendant is charged and tried for only one offense when he is charged with intentionally failing to disclose to the complainant a material fact or facts in violation of article 581-29(C). See Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(1); Murchison v. State, 93 S.W.3d 239, 257-59 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The material facts a defendant is charged with failing to disclose are alternate means or modes of committing the same offense. See Murchison, 93 S.W.3d at 257-59. A trial court's failure to instruct a jury that, in order to convict the defendant of securities fraud, the jury must unanimously agree the defendant failed to disclose at least one of the material facts listed in the jury charge, does not violate a defendant's right to a unanimous verdict. Id.2. Application of the Law to the Facts
The indictment in cause no. F06-00734-X alleged Bridwell unlawfully offered for sale to Dick Ferrell, as evidenced by a private placement memorandum dated September 26, 2003, security in a working interest in oil and gas leases. The indictment in cause no. F06-00735-X alleged Bridwell unlawfully offered for sale to Fred Chaney, as evidenced by a private placement memorandum dated May 26, 2004, security in a working interest in oil and gas leases. Both indictments alleged that in connection with those offers, Bridwell engaged in fraud by intentionally failing to disclose: (1) on September 18, 1986, in cause no. F86-97259-TN, he was convicted of fraud in the sale of a security in violation of the Texas Securities Act and was sentenced to twenty years of confinement; (2) on September 18, 1986, in cause no. F86-97260-TN, he was convicted of fraud in the sale of a security in violation of the Texas Securities Act and was sentenced to twenty years of confinement; and (3) on December 17, 1999, in cause no. CC-99-13676-A, Bridwell was sued, in part, for fraud and violations of the Texas Securities Act, and on October 12, 2000, an agreed judgment was entered against Bridwell. The trial court instructed the jury in both causes as follows: Now bearing mind all the instructions and definitions contained in the [trial] court's charge, if in paragraphs 1, 2, or 3, of the indictment, you find and believe from the evidence in this case beyond a reasonable doubt that the Defendant, Phillip E. Bridwell, on or about September 26, 2003 [in the charge relating to Dick Ferrell or May 26, 2004, in the charge relating to Fred Chaney] in Dallas County, Texas did sell or offer for sale to Dick Ferrell [or Fred Chaney], a security as evidenced by a private placement memorandum letter agreement dated September 26, 2003 [in the charge relating to Dick Ferrell or May 26, 2004, in the charge relating to Fred Chaney], and said security is a working interest in oil and gas leases, or an investment contract, and, in connection with the sale or offer for sale of said security to Dick Ferrell [or Fred Chaney], did then and there directly or indirectly engage in fraud by:1. Intentionally failing to disclose to said Dick Ferrell [or Fred Chaney] that on or about September 18, 1986 in cause number F86-97259[-]TN in the 195th Judicial District Court of Dallas County, Texas, he, the said Defendant, was convicted of the offense of committing fraud in the sale of a security in violation of the State Securities Act and was sentenced to confinement in the Texas Department of Corrections for a period of 20 years, and said information being then and there well known by him, the said Defendant, and the said information being a material fact; or
2. Intentionally failing to disclose to said Dick Ferrell [or Fred Chaney] that on or about September 18, 1986 in cause number F86-97260[-]TN in the 195th Judicial District Court of Dallas County, Texas, he, the said Defendant, was convicted of the offense of committing fraud in the sale of a security in violation of the State Securities Act and was sentenced to confinement in the Texas Department of Corrections for a period of 20 years, and said information being then and there well known by him, the said Defendant, and the said information being a material fact; or
3. Intentionally failing to disclose to the said Dick Ferrell [or Fred Chaney] that on or about December 17, 1999 in cause number CC-99-13767-A in the County Court of Dallas County, Texas a suit was filed against him, the said Defendant, and Bridwell Oil Exploration, Inc.[,] wherein Plaintiffs Philip R. Cerpanya, Susan Cerpanya and C. Randy Berry alleged that he, the said Defendant, and Bridwell Oil Exploration, Inc.[,] committed fraud, negligent misrepresentation, violations of the Texas Securities Act, civil conspiracy, breach of fiduciary duty and/or duty of good faith and fair dealing and/or reasonably prudent operator, constructive fraud, breach of contract[,] and unjust enrichment in said suit and, as a result of said suit, on or about October 12, 2000[,] an agreed judgment was entered against the said Defendant and Bridwell Oil Exploration, Inc., and said information being then and there well known by him, the said Defendant and the said information being a material fact[.]The indictments alleged Bridwell committed securities fraud by failing to disclose three different material facts in the conjunctive. However, the trial court's jury instructions presented those three, different material facts in the disjunctive. See Pizzo, 235 S.W.3d at 715. Also, in the indictments and the trial court's jury instructions, the three means of committing securities fraud were set out in adverbial phrases that describe how the offense was committed and were preceded by the preposition "by." See id. First, we examine the statutory language to determine the elements of the offense and whether the legislature created a single offense with multiple or alternate modes of commission. Article 581-29(C)(1) of the Texas Securities Act requires the jury to unanimously find the defendant committed "fraud" or a "fraudulent practice" in the sale of a security. See Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(1); White, 208 S.W.3d at 468 (discussing felony murder). The transitive verb of the portion of article 581-29(C)(1) at issue here is "engage," which is followed by the terms "fraud or fraudulent practice." See Tex. Rev. Civ. Stat. Ann. art. 581-29(C)(1); White, 208 S.W.3d at 468 (transitive verb "commits," followed by "felony"). Fraud or a fraudulent practice includes "an intentional failure to disclose a material fact." See Tex. Rev. Civ. Stat. Ann. art. 581-4(F); Hawkins, 656 S.W.2d at 72; Bridwell II, 804 S.W.2d at 903; Bridwell I, 761 S.W.2d at 404. The material facts a defendant is charged with failing to disclose are alternate means or modes of committing the same offense. See Murchison, 93 S.W.3d at 257-59; see also White, 208 S.W.3d at 468-69 (specific felonies alleged in felony murder prosecution are not elements about which jury must be unanimous). Although the parties do not cite Murchison, that case addressed the issue of whether the failure of a jury to agree unanimously that the defendant failed to disclose at least one of the material facts listed in the jury charge violates a defendant's right to a unanimous verdict. See Murchison, 93 S.W.3d at 257-59. In Murchison, the Houston Court of Appeals for the Fourteenth District concluded a trial court's failure to instruct a jury that, in order to convict the defendant of securities fraud, the jury must unanimously agree the defendant failed to disclose at least one of the material facts listed in the jury charge, does not violate a defendant's right to a unanimous verdict. Id. Second, we evaluate whether the lack of jury unanimity on the alternate means or modes of commission violates due process. In each indictment and jury charge, the acts and omissions all involve the same injury, to the same complainant, during the same transaction, with a similar level of culpability. See Jefferson, 189 S.W.3d at 313. We conclude the trial court's jury instructions did not authorize verdicts that deprived Bridwell of his right to a unanimous verdict. Bridwell's first issue is decided against him.