Appeal from the County Criminal Court at Law No. 7 Harris
County, Texas Trial Court Cause Nos. 1852392, 1852393,
consists of Chief Justice Frost and Justices Boyce and
THOMPSON FROST CHIEF JUSTICE.
William Marks challenges his three convictions for violating
the Private Security Act by accepting employment as an armed
security guard without holding the proper commission.
Appellant asserts that the judgments are void because the
indictments failed to negate various non-applicability
sections of the Private Security Act that he claims must be
negated for each of the indictments to allege an offense.
Appellant also asserts that the trial court erred in allowing
the State to amend the indictments. We conclude that the
judgments are not void but that the trial court reversibly
erred by allowing the State to amend the indictments over
appellant's objection that the amended indictments
charged appellant with new and different offenses. In doing
so, we address an issue of apparent first impression in
Texas-whether a trial court's violation of article
28.10(c) of the Code of Criminal Procedure is subject to a
harm analysis under Cain v. State-and we conclude
that it is. We reverse and remand.
Factual and Procedural Background
of the three original indictments, appellant was charged with
the misdemeanor offense of "unlawfully, intentionally[, ]
and knowingly act[ing] as a guard company, by providing
security services, without holding a license as a security
services contractor" on three different dates. Appellant
filed motions to quash the indictments, asserting that the
facts alleged in each of the indictments did not constitute a
criminal offense. In particular, appellant asserted that the
Private Security Act does not apply to a person who has
full-time employment as a peace officer. The State then filed
motions for leave to amend each of the indictments to allege
that on the respective dates appellant "did then and
there unlawfully, intentionally[, ] and knowingly accept
employment as a security officer to carry a firearm in the
course and scope of his duties, without holding a security
officer commission." At the hearing on the State's
motions, appellant objected to the State's requests to
amend the indictments on the grounds that the amendments
alleged new and different offenses. The trial court granted
the State's motions for leave to amend the
indictments. The trial court did not hold a hearing on
the motions to quash or rule on the motions.
case appellant filed a second motion to quash. Again,
appellant alleged that the amendments charged him with new
offenses. Appellant argued the amendments prejudiced him
because the offenses alleged in the amended indictments
occurred outside of the statute of limitations. The trial
court did not hold a hearing on these motions to quash, nor
did the trial court rule on the motions.
three cases were tried together in one jury trial as to guilt
or innocence. The State argued that appellant violated the
Private Security Act by accepting employment as a security
guard when he was not commissioned to carry a firearm.
Appellant asserted that he did not need a commission to carry
a firearm because he was a full-time peace officer working
for the City of Kenefick. Appellant asserted alternatively
that if he did not qualify as a full-time peace officer, he
did not intentionally or knowingly violate the Private
Security Act because he believed he was a full-time peace
trial, the evidence showed that U.S. Security Associates, a
company in the business of providing security officers to
work as security guards for private companies, employed
appellant to work as an armed security officer. The evidence
also showed that, as part of his employment with U.S.
Security Associates, appellant worked as an armed security
officer at a large department store on each of the dates
alleged in the three indictments. Anthony Ybarra, an employee
of U.S. Security Associates, testified that the company
provides two types of security officers: (1) commissioned
security officers who carry guns and (2) non-commissioned
security officers who do not carry guns. Appellant accepted
employment with U.S. Security Associates as a security
officer who carried a gun as part of his duties.
Texas Department of Public Safety is in charge of issuing
commissions to individuals to carry firearms. Renearl Bowie,
the Department's assistant director, testified that
appellant was not commissioned.
investigator for the District Attorney's Office, George
Walter Jordan IV, testified that he concluded from subpoenaed
records that appellant received compensation from the City of
Kenefick for serving warrants, but was not officially on the
city's payroll. Jordan testified that in 2011 appellant
worked 288 hours, but to have been considered a fulltime city
employee, appellant would have needed to work 1664 hours.
According to Jordan, a full-time employee making minimum wage
would earn $12, 064 per year. In 2011, appellant made
approximately $3, 800 from his city employment. Appellant
also received some employment benefits from the city, such as
the use of a police vehicle. Jordan did not include any of
those benefits in his calculations.
testified that he graduated from the police academy in 1983
and is a certified peace officer. According to appellant, he
contacted the Texas Commission on Law Enforcement Officer
Standards and Education (now known as the Texas Commission on
Law Enforcement) about his private security work. After
speaking with a representative, appellant concluded that
accepting the job would be legal. Appellant testified that he
did not intentionally violate the Private Security Act.
jury found appellant guilty as charged in each of the three
amended indictments. The trial court assessed punishment at
one year's confinement in the Harris County Jail for each
count, probated over one year, and ordered the sentences to
for New Trial
Appellant filed a motion for new trial in each case asserting
(1)Article 28.10(c) of the Code of Criminal Procedure
provides that an indictment may not be amended over a
defendant's objection if the amended indictment charges
an additional or different statutory offense.
(2)The amendments to the three indictments charged appellant
with different statutory offenses.
(3) The trial court violated article 28.10(c) of the Code of
Criminal Procedure by granting the State's motion for
leave to amend the indictments over appellant's objection
that the amended indictments charged appellant with new and
(4) The amended indictments alleged new offenses that were
precluded by the two-year statute of limitations in article
12.02 of the Code of Criminal Procedure because the alleged
offenses occurred more than two years before the date the
indictments were amended.
(5) The statute of limitations was not tolled under article
12.05(b) of the Code of Criminal Procedure because the
original and amended indictments did not allege the same
conduct, act, or transaction.
trial court signed an order denying appellant's motions
for new trial.
challenges his convictions, raising three appellate issues.
Issues and Analysis
Was it necessary for the indictments to negate the
non-applicability provisions to allege an offense?
second issue, appellant asserts that the judgments are void
because the indictments failed to negate various
non-applicability sections of the Private Security Act that
he claims must be negated for each indictment to allege an
Occupations Code section 1702.322, entitled "Law
Enforcement Personnel" provides:
This chapter does not apply to:
(1)a person who has full-time employment as a peace officer
and who receives compensation for private employment on an
individual or an independent contractor basis as a patrolman,
guard, extra job coordinator, or watchman if the officer:
(A) is employed in an employee-employer relationship or
employed on an individual contractual basis:
(i) directly by the recipient of the services; or
(ii) by a company licensed under this chapter;
(B)is not in the employ of another peace ...