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Sanchez v. State8/16/2000
OPINION ON REMAND
REVERSED AND REMANDED
This appeal was taken from a conviction for official oppression for sexual harassment. See Tex. Pen. Code Ann. ยง 39.03 (a)(3), (c) (Vernon 1994). The jury found appellant, Arthur Garcia Sanchez, guilty of the class A misdemeanor and assessed his punishment at confinement in the county jail for one year and a fine of $3,000. The jury, however, recommended community supervision. The imposition of the sentence was suspended. Appellant was placed on community supervision for two years subject to certain conditions.
On original submission, this Court sustained appellant's contentions, finding that the sexual harassment provision of the statute was (1) unconstitutionally vague on its face and as applied in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and (2) unconstitutionally over broad in violation of the First Amendment to the federal constitution. See Sanchez v. State, 974 S.W.2d 307 (Tex. App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on discretionary review found the sexual harassment statutory provision constitutional, reversed our judgment and remanded the cause for proceedings consistent with its opinion. See Sanchez v. State, 995 S.W.2d 677, 680 (Tex. Crim. App.), cert. denied, 120 S. Ct. 531 (1999) (Sanchez II).
In construing Section 39.03 (a)(3), (c) and finding it constitutional, the Court of Criminal Appeals discussed some of the essential elements of the offense, including some that were case- developed. The Court stated:
We express no opinion concerning whether some or all of the allegations in the indictment contain all of the elements required by the sexual harassment provision as we have construed it. The Court of Appeals may address such issues on remand if those issues are found to be properly before the court. Sanchez II, 995 S.W.2d at 689-90 n.11 (emphasis added).
On remand, in light of the procedure normally utilized, the parties were granted leave by this Court to rebrief the case. See Theus v. State, 863 S.W.2d 489, 491 (Tex. Crim. App. 1993).
POINTS OF ERROR
In his brief following remand, appellant raises six points of error. First, appellant contends that the trial court erred in overruling his motion to set aside the amended indictment because, in violation of the federal and state constitutions, and state statutory provisions, the indictment did not, inter alia, charge an offense. Second, appellant urged the trial court erred in overruling the same motion because the indictment did not specify what "rights, privileges, powers, or immunities" were at issue in the case. Third and fourth, appellant challenges the factual sufficiency of the evidence to sustain the conviction. Fifth and sixth, appellant contends that the trial court erred in admitting into evidence summaries of telephone records in violation of Rules 901 and 1006 of the Texas Rules of Evidence.
Prior to addressing appellant's contentions, some background is necessary, including the statute, the indictment under which appellant was prosecuted, and the Sanchez II opinion. At this point in the appellate process, the instant case presents an out-of-the ordinary situation on remand. As recognized by the earlier quoted portion of the opinion in Sanchez II, there are some case-developed elements of the offense under section 39.03(a)(3), (c) as construed by the Court of Criminal Appeals that were not included in the indictment. Until the court spoke, the grand jury, the parties, and the trial court were not familiar with the construction to be placed on section 39.03(a)(3), (c).
THE STATUTE
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