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Marks v. State

Court of Appeals of Texas, Fourteenth District

April 27, 2017

WILLIAM MARKS, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court at Law No. 7 Harris County, Texas Trial Court Cause Nos. 1852392, 1852393, 1852394

          Panel consists of Chief Justice Frost and Justices Boyce and Christopher.

          OPINION

          KEM THOMPSON FROST CHIEF JUSTICE.

         Appellant 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.

         I. Factual and Procedural Background

         In each of the three original indictments, appellant was charged with the misdemeanor offense[1] 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.[2] The trial court did not hold a hearing on the motions to quash or rule on the motions.

         In each 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.

         The Jury Trial

         The 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 officer.

         At 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.

         The 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.

         A fraud 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.

         Appellant 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.

         The 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 run concurrently.

         Motion for New Trial

Appellant filed a motion for new trial in each case asserting the following:
(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 different offenses.
(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.

         The trial court signed an order denying appellant's motions for new trial.

         Appellant challenges his convictions, raising three appellate issues.

         II. Issues and Analysis

         A. Was it necessary for the indictments to negate the non-applicability provisions to allege an offense?

         In his 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 offense.

         Texas 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 ...

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