
    The STATE of Texas, State v. Frank EMPEY, Appellee
    NO. 02-14-00407-CR
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: August 4, 2016
    
      Greg Lowery, District Attorney for Wise County, Decatur, TX, for State.
    Richard Gladden, Law Office of Richard Gladden, Denton, TX, for Appellee.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
   OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

The State of Texas brings this pretrial appeal challenging the trial court’s order that dismissed the grand jury’s indictment for theft of aluminum, bronze, copper, or brass with a value of less than $20,000. In one issue, the State argues that the trial court erred by granting appellee Frank Empey’s motion to dismiss the indictment because - despite the trial court’s finding otherwise, section 31.03(e)(4)(F) of the penal code is constitutional. We conclude that section 31.03(e)(4)(F) is not facially unconstitutional, and we .therefore reverse the trial court’s order dismissing the indictment against appellee.

Background Facts

A grand jury indicted appellee for theft. The indictment charged him with a state jail felony because it alleged that he had stolen “aluminum or bronze or copper or brass, of the value of less than $20,000.” See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).

Appellee filed a pretrial motion to dismiss the indictment. He argued that the indictment was flawed because it was based on section 31.03(e)(4)(F), which he contended to be overbroad and vague because it allows for selective prosecution. Specifically, appellee argued,

[Section 31.03(e)(4)(F)] makes it a state jail felony to steal any amount of aluminum or bronze or copper or brass. This means a person could be charged with stealing a roll of copper pennies and be charged with a State Jail Felony or [the person] could be charged with a Class C Misdemeanor. A person could be charged with stealing a brass ring worth one dollar and be charged either as a State Jail Felony or a Class C Misdemeanor. In this case the defendant is charged with stealing four aluminum bats with a stated value of forty dollars and he is being charged with a State Jail Felony. It is obvious that the statute as it is being applied to him is void for vagueness .... The statute as it is being used against [appellee] allows the prosecution and police too much discretion to either charge him with a felony or a misdemeanor which is clearly impermissible. [Emphases added.]

The State responded to appellee’s motion to dismiss. In the response, the State argued that the trial court should deny the motion because section 31.03(e)(4)(F) clearly defined appellee’s prohibited behavior and was therefore not vague. Also, the State contended that the statute was not infirm merely because it allowed appel-lee’s theft to be prosecuted under different parts of section 31.03 that related either to the value of the allegedly stolen materials or the materials’ substance. The State argued that its ability to exercise discretion in charging appellee with a state jail felony under section 31.03(e)(4)(F) rather than with a lesser theft offense based on the value of the items at issue did not render section 31.03(e)(4)(F) unconstitutional. In part, the State asserted,

The choice of what statute to apply falls to the discretion of the prosecutor. [Ap-pellee] could be charged with a Class C Misdemeanor under [a value provision of section 31.03], or with a State Jail Felony under [section] 31.03(e)(4)(F) for theft of aluminum valued less than $20,000. Both statutes clearly explain the prohibited behavior in a way that gives fair notice to a person of ordinary intelligence as to what conduct [the person] may not partake in. This fair notice allows the statutes to stand up to constitutional muster. As the Supreme Court makes clear, allowing discretion in choosing how to charge a defendant is not unconstitutional if the statutes individually are constitutional. In this case, because the statutes are not vague in the conduct they prohibit, they are both valid aspects of the criminal penal code in Texas[,] and allowing for prosecutorial discretion in charging ... in no way renders the statutes void for vagueness.

Without conducting a hearing, the trial court granted appellee’s motion to dismiss. The State asked the trial court to file findings of fact and conclusions of law, and the court did so. The court’s findings and conclusions state:

Findings of Fact:
[Appellee] was charged and indicted under Texas [Penal Code Section] 31.03(e)(4)(F). That Statute makes theft of any amount of aluminum, copper, brass[,] or bronze a State Jail Felony. The State alleges that on April 24, 2013, a theft was reported from the scrap yard of Bridgeport Iron and Metal. There was a surveillance video showing [appellee], an employee of the company, gathering up four aluminum baseball bats, three cast iron skillets, and a heavy-duty chain out of a company vehicle and into his personal vehicle, and leaving the property without paying for them. ... [Appellee], through his attorney, filed a Motion to Dismiss arguing that the Statute is overly broad and void for vagueness, as it allows the police too much discretion in charging someone with either a Class C Misdemeanor or a State Jail Felony. The State filed its opposition to the Motion. Under the State’s theory, the theft of a copper penny from the top of someone’s desk would be a felony; an ounce of gold[,] a misdemeanor; an empty aluminum Coors Light can, a felony.
Conclusions of Law:
The Court considered [appellee’s] Motion and the State’s Opposition .and decided that the Statute is overly broad and void for vagueness as it is being applied to [appellee] ....
The Legislative intent of [section] 31.03(e)(4)(F) did not envision its application in this alleged circumstance. [Emphases added.]

To the findings of fact and conclusions of law, the trial court attached documents from another case before the court. Those documents included arguments related to a motion to quash an indictment filed by another defendant who had also contested the constitutionality of section 31.03(e)(4)(F). The attachments also included an affidavit from the attorney in that case, who stated that she had called State Senator Royce West’s office concerning the legislation that led to the enactment of current section 31.03(e)(4)(F), and an e-mail from Senator West’s legislative aide concerning the purposes of the statute and of recent amendments to it. The State brought this appeal from the trial court’s order dismissing the indictment against appellee.

The Constitutionality of Section 31.03(e)(4)(F)

The State contends that the trial court erred by granting appellee’s motion to dismiss, which both parties on appeal characterize as a motion to quash the indictment. When a trial court’s ruling on a defendant’s motion to quash an indictment concerns a matter unrelated to the credibility or demeanor of witnesses, such as the constitutionality of a statute, we review the ruling de novo and therefore give no deference to the ruling. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007), cert. denied, 553 U.S. 1007, 128 S.Ct. 2056, 170 L.Ed.2d 798 (2008); State v. Richardson, 439 S.W.3d 403, 404 (Tex.App.-Fort Worth 2014, pet. ref'd) (mem. op.).

When a defendant challenges the constitutionality of a statute, “we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. The burden normally rests upon the person challenging the statute to establish its unconstitutionality.” Ex parte Lo, 424 S.W.3d 10, 15 (Tex.Crim.App.2013) (footnote omitted); see State v. Rosseau, 396 S.W.3d 550, 557 (Tex.Crim.App.2013). A pretrial motion to quash an indictment may be used only for a facial challenge to the constitutionality of a statute. Jimenez v. State, 419 S.W.3d 706, 714 (Tex.App.-Houston [1st Dist.] 2013, pet. ref'd); see State ex rel, Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.Crim.App. 2011) (orig. proceeding) (stating that because a contention that a statute is unconstitutional as applied requires a recourse to evidence, it cannot be properly raised by a pretrial motion to quash the charging instrument); Gillenwaters v. State, 205 S.W.3d 534, 536 n.4 (Tex.Crim.App.2006).

A facial challenge is an attack on a statute itself as opposed to a particular application. Peraza v. State, 467 S.W.3d 508, 514 (Tex.Crim.App.2015), cert. denied, — U.S. -, 136 S.Ct. 1188, 194 L.Ed.2d 202 (2016). To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally. Rosseau, 396 S.W.3d at 558 (“Because ap-pellee has failed to show that it is unconstitutional in every possible respect, the statute is not facially unconstitutional.”); see Salinas v. State, 464 S.W.3d 363, 367 (Tex.Crim.App.2015); Peraza, 467 S.W.3d at 514. Thus, in considering a facial challenge to a statute, we must determine whether there are potential constitutional applications. See Peraza, 467 S.W.3d at 515; see also Fine, 330 S.W.3d at 908 (“If Mr. Green is mounting a facial challenge to the Texas death-penalty scheme, then he must prove that the system can never be constitutionally applied to any Texas defendant charged with capital murder, no matter what the individual facts and circumstances of the particular case.”). A facial challenge to a statute is the most difficult challenge to mount successfully. Salinas, 464 S.W.3d at 367.

Section 31.03(e)(4)(F) makes theft of certain metals a state jail felony when the theft might otherwise constitute a less serious offense when measured by the value of the metals. See Tex. Penal Code Ann. § 31.03(e)(4)(F). On appeal, the parties contest whether section 31.03(e)(4)(F) is unconstitutionally vague. Appellee does not argue that this section is vague in , the sense that he cannot understand what it prohibits. He also does not explicitly raise a complaint about substantive due process. Rather, he contends that the section is vague, and violates his due process rights, because it fails to “provide minimal guidelines necessary to prevent arbitrary or discriminatory enforcement.” Specifically, he argues that section 31.03(e)(4)(F) is infirm because it “delegates to law enforcement unfettered discretion to prosecute a defendant for either a Class C misdemeanor offense punishable by only a $500 fine[] or for a State Jail felony offense punishable by two years[’] confinement, for a theft of any measurable amount of aluminum, bronze, copper[,] or brass.” The State acknowledges that the decisive question we must answer is whether the legislature failed to establish minimal guidelines to cover prosecutorial discretion in. applying section 31.03(e)(4)(F).

A statute may be unconstitutionally vague when it defines an offense in such a way that it encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.), cert. denied, 549 U.S. 824, 127 S.Ct. 176, 166 L.Ed.2d 41 (2006); see also State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App.1996) (“[T]he rationale for the vagueness doctrine extends beyond fair warning. A second rationale descends from the notion that a legislature must provide minimal guidelines to govern law enforcement ”). The trial court’s findings of fact manifest the court’s concern that section 31.03 could bé enforced arbitrarily; the court noted that “theft of a copper penny ... [c]ould be a felony; an ounce of gold[,] a misdemeanor; [and] an empty aluminum ... can, a felony.” Nonetheless, we conclude that federal and state precedents foreclose appellee’s argument that section 31.03(e)(4)(F) is infirm because it delegates to prosecutors unfettered discretion to charge a defendant with either a misdemeanor or.felony.

The Supreme -Court considered a circumstance analogous to the one at issue in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed,2d 755 (1979). There, two federal statutes each prohibited convicted felons from committing the same act—receiving firearms—but the statutes had different maximum penalties. Id. at 116, 99 S.Ct. at 2200. Batchelder was charged and convicted under the statute that authorized the greater penalty, but a federal court of appeals , reversed his sentence, on the basis, in part, that a prosecutor’s authority to select one of two statutes that were identical except for their penalty provisions implicated important constitutional protections. Id. at 116-17, 99 S.Ct. at 2200-01. The court of appeals suggested that the statutes might “(1) be void for vagueness, (2) implicate ‘due process and equal protection interests] in avoiding excessive prosecutorial discretion and in obtaining equal justice,’ and ,(3) constitute an impermissible delegation of congressional authority.” Id. at 122-23, 99 S.Ct. 2203.

The Supreme Court reversed the court of appeals’s decision and held that the prosecutor’s choice between two statutes that proscribed the same conduct but carried different penalties did not violate due process. Id. at 123-26, 99 S.Ct. at 2203-05. The unanimous Court explained,

It is a fundamental tenet of due process that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” A criminal statute is therefore invalid if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.
The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.
This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute!] under either so long as it does not discriminate against any class of defendants. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.
... [T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced.
Approaching the problem of prosecu-torial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissi-bly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty.

Id. (emphases added) (citations omitted); see also Mannix v. Phillips, 619 F.3d 187, 200 (2d Cir.) (“[N]o clearly established constitutional prohibition of statutory vagueness is violated when two statutes proscribe the same conduct and a defendant is charged under the one subjecting him to greater punishment.”), cert, denied, 562 U.S. 1049, 131 S.Ct. 611, 178 L.Ed.2d 445 (2010); State v. Rourke, 773 N.W.2d 913, 917 (Minn.2009) (citing Batchelder and stating that the “sentencing uncertainty-caused by two statutes that prohibit the same conduct, but prescribe different penalties, does not render the statutes unconstitutionally vague as long as each statute unambiguously specifies the activity proscribed and the penalty available on conviction”).

Like the Supreme Court in Batchelder, the Texas Court of Criminal Appeals has held that a prosecutor’s choice between penalty provisions related to the same conduct by the defendant does not violate the defendant’s constitutional rights. Earls v. State, 707 S.W.2d 82, 86-87 (Tex.Crim.App.1986). In Earls, the defendant was convicted of theft “from a person,” which enhanced the penalty from an ordinary theft charge. Id. at 82, 84. On appeal, he argued that the State’s ability to charge him under multiple parts of the theft statute for the same act rendered the statute arbitrary and void for vagueness. Id. at 86. The court of criminal appeals disagreed, reasoning,

A statute is void for -vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. ... The fact that a defendant might not know which of several penalty provisions he will actually be charged with does not render the provisions vague.
... [TJheft from a person requires certain specific conduct—a taking from the person or from their immediate possession. The availability of alternative jurisdictional or penalty elements does not render the statute vague so long as those 'elements are sufficiently described—
Nor does the fact that the jurisdictional element which determines the basis of punishment ... may be charged under several provisions render the statute arbitrary. The State has limited discretion within the guidelines of the statute to charge an offense under one part of a statute or another or even as to charge one particular offense as opposed to another offense when a person’s conduct meets the requirements. The fact that a person’s .conduct violates two parts of a statute or even two different statutes does not make the statute vague as long as the proscribed conduct is described so as to give a person fair notice that it violates the statute.

Id. at 86-87 (emphases added); see also Porter v. State, 806 S.W.2d 316, 320-21 (Tex.App.-San Antonio 1991, no pet.) (citing Earls for the proposition that a “statute is not unconstitutionally vague simply because the defendant might not know in advance within-what range of penalties he will actually be charged as long as the statute sufficiently describes the offense, giving a person of ordinary intelligence fair notice that the contemplated conduct is forbidden”).

Finally, echoing the holdings in Batchel-der and Earls, we have concluded that the “fact that different consequences are authorized by more than one applicable statute does not reduce the notice given to the defendant of the consequences provided for in each.” Tex. Dep’t of Pub. Safety v. Chavez, 981 S.W.2d 449, 452-53 (Tex.App.-Fort Worth 1998, no pet.); see also Ex parte Luster, 846 S.W.2d 928, 930 (Tex.App.-Fort Worth 1993, pet. ref'd) (“[T]he fact that a defendant’s conduct violates more than one statute does not make the statute vague so long as the proscribed conduct is described in a manner that gives fair notice of what is forbidden. Similarly, the fact that different punishments are authorized by more than one applicable statute does not detract from a defendant’s notice of the punishment under each.” (citation omitted)).

We conclude that these cases, which we are bound to follow, foreclose appellee’s position that section 31.03 violates due process and encourages arbitrary and discriminatory enforcement merely because a prosecutor may choose between pursuing alternative but clearly defined penalties that may apply to the same act of theft. See Batchelder, 442 U.S. at 122-26, 99 S.Ct. at 2203-05; Earls, 707 S.W.2d at 86-87; Luster, 846 S.W.2d at 930.

The dissenting opinion does not address or attempt to distinguish these prece-dential and controlling decisions from the United States Supreme Court, the court of criminal appeals, and this court. Instead, the dissenting opinion bases a large part of its analysis on chapter 1956 of the occupations code, which neither party cited. But chapter 1956 explicitly provides prosecutors with the very discretion that the dissenting opinion decries. Section 1956.040(e) states, “If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.” Tex. Occ. Code Ann. § 1956.040(e) (West Supp. 2015). We cannot disregard this clearly expressed intent to authorize a prosecution under, either section 31.03 of the penal code or section 1956.040 of the occupations code. See Jones v. State, 396 S.W.3d 558, 563 (Tex.Crim.App.2013) (upholding the legislature’s clear intent to allow for prosecutorial choice in charging either fraudulent use of identifying information or failure to identify, which are contained in different sections of the penal code and carry different penalties).

The dissenting opinion does raise thoughtful questions about how and whether section 31.03(e)(4)(F) applies when one of the metals listed in the' section is a secondary or insignificant component of a stolen object. But appellee’s contention on appeal is not that he cannot understand what section 31.03(e)(4)(F) prohibits but that the State has too much discretion to charge theft under that section or other provisions within section 31.03. And the dissenting opinion’s fact-driven concerns are out of.place in this facial constitutional challenge, in which we must uphold section 31.03(e)(4)(F) if it could ever be applied constitutionally. See Peraza, 467 S.W.3d at 515; Rosseau, 396 S.W.3d at 558.

Finally, the dissenting opinion raises a constitutional issue concerning the specificity of the notice provided by appellee’s indictment. But this issue is not the subject of this appeal, and neither party has discussed it. We should not address it sua sponte. See Pena v. State, 191 S.W.3d 133, 138 (Tex.Crim.App.2006) (holding that an appellate court erred by deciding an un-briefed constitutional issue). .

We hold that section 31.03(e)(4)(F) may operate constitutionally under some circumstances and therefore is not facially void for vagueness. Thus, we sustain the State’s sole issue.

Conclusion

Having sustained the State’s issue, we reverse the trial court’s order granting appellee’s motion to dismiss the indictment against him for theft under section 31.08(e)(4)(F), and we remand this case to the trial court for further proceedings.

DAUPHINOT, J., filed a dissenting opinion.

SUDDERTH, J., filed a concurring opinion.

BONNIE SUDDERTH, JUSTICE,.

concurring.

Because I agree that Appellee has not established that the statute always operates unconstitutionally—the standard that the court of criminal appeals has directed us to apply with regard to facially unconstitutional challenges like the one presented here—I join with Chief Justice Livingston’s opinion in both reasoning and result. I write separately only to express that while I share the concerns regarding the statute raised by the trial court in its findings of fact and conclusions of law and by Justice Dauphinot in her dissenting opinion, I believe that the facts and arguments in this case do not present an opportunity to address the concerns raised.

LEE ANN DAUPHINOT, JUSTICE,

dissenting.

John Locke discussed the purpose of government in his Two Treatises of Gov-emment, Many of his ideas are reflected in Thomas Jefferson’s writings, including our Constitution. People join together to create a society and empower their leaders to'govern because they seek protection of their lives, liberty, and property. A government is created and rightfully exists only by the consent of the governed “and is but the expression of their aggregate will, designed to secure and protect them in the enjoyment of life, liberty, and property ”

But, inevitably, tension arises between the epjoyment of life-and'liberty and the enjoyment of property when claims to property are in conflict. As ■ Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals has explained,

The Supreme Court has interpreted the Due Process Clause as having both substantive and procedural components. The substantive component protects the individual against government action that either lacks a rational basis or unduly infringes on- a fundamental right.or liberty interest. A statute that infringes upon a fundamental right or liberty interest violates the substantive component of the Due Process Clause unless the infringement is narrowly tailored to serve a compelling state interest. A substantive-due-process analysis that is based .upon the infringement of a fundamental right or liberty interest must provide a careful description of the asserted fundamental liberty interest. A fundamental right or liberty interest is one that is deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if (it) were sacrificed.

And as our sister court has pointed out, “Substantive due process protects against the arbitrary and oppressive exercise of government power over a person’s life, liberty, or property, regardless of the fairness of the procedures used to implement the government action.”

My differences with the majority opinion are founded in such constitutional guarantees of due process. Unfortunately, in expressing my concerns with the statute in question and with the majority opinion, I am not sufficiently skillful to make these concerns clear to the thoughtful and articulate majority. The legislature alone, within the boundaries described by our constitutions, delineates those acts that violate our criminal laws. This obligation may not be delegated to other branches of the government. When statutes are so vague or contain terms that overlap and conflict so that an ordinary person cannot tell which statute he or she has violated or whether he or she has violated a criminal statute, the legislature, and no other branch of government, has the authority to establish certainty in the law. Other branches of government may not determine the elements of an offense on an ad hoc basis. To hold otherwise is to disregard the clear mandate of the due process guarantees of our state and federal constitutions.

Not only must a statute be sufficiently specific to place the ordinary citizen on notice of the forbidden conduct; it must also provide sufficient notice to law enforcement personnel to prevent arbitrary or discriminatory enforcement. A statute must be sufficiently definite to avoid the possibility of arbitrary and erratic arrests and convictions. Lack of notice and the lack of guidelines for law enforcement each provide an independent ground for finding a statute void for vagueness.

A penal statute encourages arbitrary enforcement when it fails to provide clear guidelines, thereby giving law enforcement officials unbounded discretion to apply the law selectively.

The pertinent portion of the theft statute in the penal code provides that no matter how minimal the value, a person commits a state jail felony if “the value of the property stolen is less than $20,000 and the property stolen is” aluminum, bronze, copper, or brass. At the same time, the occupations code provides a different offense level and therefore a different punishment. Under the occupations code, theft by purchase, and thereby possession, of stolen regulated metals is a misdemeanor that may be enhanced by evidence of prior convictions. Section 1956.001 of the occupations code defines different “materials,” “regulated materials,” and “regulated metals”:

(1) “Aluminum material” means a product made from aluminum, an aluminum alloy, or an aluminum by-product. The term includes aluminum wiring and an aluminum beer keg but does not include another type of aluminum can used to contain a food or beverage.
(2) “Bronze material” means:
(A) a cemetery vase, receptacle, or memorial made from bronze;
(B) bronze statuary; or
(C) material readily identifiable as bronze, including bronze wiring.
(4) “Copper or brass material” means:
(A) a power inverter or insulated or noninsulated copper wire or cable that contains copper or an alloy of copper or zinc and is of the type used by:
(i) a public utility or common carrier;
(ii) a telecommunications provider as defined by Section 51.002, Utilities Code;
(iii) a cable service provider as defined by Section 66.002, Utilities Code; or
(iv) a video service provider as defined by Section 66.002, Utilities Code;
(B) a copper or brass item of a type commonly used in construction or by:
(i) a public utility;
(ii) a telecommunications provider as defined by Section 51.002, Utilities Code;
(iii) a cable service provider as defined by Section 66.002, Utilities Code; or
(iv) a video service provider as defined by Section 66.002, Utilities Code; or
(C)copper pipe or copper tubing.
(6-a) “Lead material” means:
(A) a commercial grade lead battery, lead-acid battery, or spiral cell battery; or
(B) a material or an item readily identifiable as being made of or containing lead.
(9) “Regulated material” means:
(A) aluminum material;
(B) bronze material;
(C) copper or brass material;
(D) lead material; or
(E) regulated metal.
(10) “Regulated metal” means:
(A) manhole covers;
(B) guardrails;
(C) metal cylinders designed to contain compressed air, oxygen, gases, or liquids;
(D) beer kegs made from metal other than aluminum;
(E) historical markers or cemetery vases, receptacles, or memorials made from metal other than aluminum;
(F) unused rebar;
(G) street signs;
(H) drain gates;
(I) safes;
(J) communication, transmission, and service wire or cable;
(K) condensing or evaporator coils for central heating or air conditioning units;
(L) utility structures, including the fixtures and hardware;
(M) aluminum or stainless steel containers designed to hold propane for fueling forklifts;
(N) metal railroad equipment, including tie plates, signal houses, control boxes, signs, signals, traffic devices, traffic control devices, traffic control signals, switch plates, e-clips, and rail tie functions;
(O) catalytic converters not attached to a vehicle;
(P) fire hydrants;
(Q) metal bleachers or other seating facilities used in recreational areas or sporting arenas;
(R) any metal item clearly and conspicuously marked with any form of the name, initials, or logo of a governmental entity, utility, cemetery, or railroad;
(S) insulated utility, communications, or electrical wire that has been burned in whole or in part to remove the insulation;
(T) backflow valves;
(U) metal in the form of commonly recognized products of the industrial metals recycling process, including bales, briquettes, billets, sows, ingots, pucks, and chopped or shredded metals; and
(V) commercial grade lead batteries or lead-acid batteries.

So if the person purchases and thereby possesses certain stolen metals included in the penal code section 31.03(e)(4)(F) list— aluminum, copper, bronze, and brass— knowing the metal is stolen, and regardless of the amount or value, it appears that the offense is a Class A misdemeanor under the occupations code.

Thus, if I knowingly go to mylocal fence and purchase stolen “aluminum material,” I have committed a Class A misdemean- or, unless, of course, either the arresting officer or the prosecutor decides to prosecute the “aluminum material” as plain aluminum. Then, I may be charged with a state jail felony unless I buy more than $20,000 worth. If I steal a $1,400 silver coin, I have committed a Class A misdemeanor, but if I pick an aluminum can up off the street and someone else claims it belongs to him, I am facing a state jail felony charge, unless either the arresting officer or the prosecutor decides to prosecute me based on the value of the can under section 31.03(e)(1) of the penal code, in which case theft of that same can becomes a Class C misdemeanor carrying no jail time. And what about the sandwich I take out of the office refrigerator because I’m, really hungry? If the sandwich is wrapped in aluminum foil, the theft is a state jail felony. .If that same sandwich is in a plastic baggie, the theft is only a Class C misdemeanor.

My confusion has many sources. What constitutes- aluminum, bronze, copper, or brass for purposes of penal code section 31.03(e)(4)(F)? Does each term mean something made of the respective metal, alloyed with the respective metal, containing the respective metal, or decorated with the respective metal? If I steal an automobile and some of its parts are made of aluminum, have I stolen a car, aluminum, or both? That is, have I committed two offenses? When a person, such as Appel-lee, is accused of stealing aluminum bats, is he accused of committing one offense or two? What about copper coins? Does the theft of each coin constitute a separate offense?

Most baking powders for the home and antiperspirant deodorants contain aluminum. If I grab a biscuit off the buffet without paying for it, am I going to be charged with a state jail felony? How much of the object must be of the forbidden metal? More than 50%? Any amount? From the wording of the statute, logic suggests that the object must be primarily made of the forbidden metal. Otherwise, why would the statute specifically enumerate aluminum, copper, , brass, and bronze, since brass and bronze are alloys containing copper, and sometimes aluminum, Indeed, bronze is an alloy consisting primarily of copper. Are courts to conclude that any amount of the forbidden metal dooms the object in which it may hide? Are courts to hold that an object must contain sufficient forbidden metal that a person knows that he possesses it, as courts have held regarding controlled substances? Or is it sufficient that someone knows it?

And returning to coins, does copper plating transform a penny from zinc to copper? Or is it a state jail felony to steal a 1981 penny but a Class C misdemeanor to steal a 1943 penny because it was made with no copper? The legislature does not inform us. Does this mean that the police officer or the prosecutor decides this issue on an ad hoc basis?

As section 31.03 of the penal code and section 1956.040(b)-(b-l) of the occupations code currently exist, the same act may be punished as a Class C misdemean- or, a Class A misdemeanor, or a state jail felony, depending on the whim or sound judgment of the arresting officer or the prosecutor, not the legislature. If the officer decides the offense is a Class C misdemeanor, there will likely be no arrest because the penalty carries no jail time and custodial arrest requires promptly taking the defendant before a magistrate. If the officer decides the offense is a Class A misdemeanor, the bail amount will likely be lower than if the officer decides the offense is a felony. Similarly, the ultimate punishment ranges from a tiny fine to two years’ imprisonment and a large fine, dependent on the officer’s choice. And after the officer makes this determination, the prosecutor weighs in and may make different determinations, both the officer and the prosecutor acting within the discretion improperly delegated them by the legislature. This is the very definition of unbounded discretion.

As the Texas Court of Criminal Appeals has repeatedly reminded us,
The federal constitution affords the states broad authority to narrowly construe a statute to avoid a constitutional violation. ... Texas courts have a duty to employ a reasonable narrowing construction for that purpose. But ... a narrowing construction should be employed only if the statute is readily susceptible to one. We may not rewrite a statute that is not readily subject to a narrowing construction because such a rewriting constitutes a serious invasion of the legislative domain and would sharply diminish the legislature’s incentive to draft a narrowly tailored statute in the first place.
... [A] law “is not susceptible to a narrowing construction when its meaning is unambiguous.” This statement accords with our longstanding practice of giving effect to the plain meaning of a statute unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. It also accords with our more recent statements that a statute is ambiguous if the statutory language “is reasonably susceptible to more than one understanding.”

Penal code section 31.03(e)(4)(F) is another example of special-interest legislation intended to benefit real estate developers who were tired of repeated burglaries and thefts of wiring and air conditioner parts. With the increased value of copper and aluminum, other owners of houses, apartments, and buildings were also the victims of these thefts and burglaries. In 2011, the governor signed Senate Bill 694, which removed the requirement that at least 50% of the stolen item be made of specific metals, such as copper or aluminum. The removal of this scope limitation generated many questions. That is, now that the legislature specifically removed this quantitative restriction from section 31.03(e)(4)(F), the statute is clearly ambiguous.

The indictment that tracks that, section also creates an additional constitutional issue. The Texas Court of Criminal Appeals has repeatedly held that generally, “an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature.” In contrast, the Texas Legislature has established a baseline for indictments requiring that “[i]f known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.”

Clearly, besides ownership, the gravamen of the theft offense under section 31.03(e)(4)(F) is theft of any amount of the forbidden metals. The indictment that tracks the statute gives no notice of the item containing or made of the forbidden metal. The prosecution is only for the theft of the forbidden metal, not the rest of the item. Nor does the indictment that tracks this statute give any notice of the identity of the item. But both the code of criminal procedure and the Texas Court of Criminal Appeals have provided that •

[t]he purpose of an indictment is “to give the defendant notice of the particular offense with which he' is charged, and enable the court, on conviction, to pronounce the proper judgment”; an indictment must also be specific enough to “enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

How does an indictment that tracks this vague statute give Appellee notice of the particular offense with which he is’charged or enable the court to pronounce the proper' judgment on conviction? How can a court conclude that the indictment here, which does not mention the baseball bats, is sufficiently specific to “enable the accused to plead the judgment that may be given upon it in bar of any prosecution” for stealing those same baseball bats? ;

Because I believe that due process demands both that we uphold the trial court’s decision in this specific case and that the legislature revise section 31.08(e)(4)(F) so that it provides adequate notice to citizens and law enforcement, I must respectfully dissent. 
      
      . In the response, the State alleged that ap-pellee had stolen four aluminum baseball bats, three cast iron skillets, and a heavy duty chain from a scrap yard at which he had been employed. The indictment does not include these details.
     
      
      . Based on our analysis below, we need not detail the contents of the affidavit and e-mail. We note that the Texas Supreme Court has stated that courts should give “little weight to post-enactment statements by legislators. Explanations produced, after the fact, by individual legislators are not statutory history, and can provide little guidance as to what the legislature collectively intended.” In re Doe, 19 S.W.3d 346, 352 (Tex.2000).
     
      
      . We note that both appellee’s motion to dismiss and the trial court’s conclusion of law supporting dismissal, which we have quoted above, rely on as-applied language concerning the constitutionality of section 31.03(e)(4)(F). Neither party relies on an as-applied challenge in briefing, however, and they both address the merits of a facial challenge without explicitly discussing whether such a challenge was preserved. In the interest of justice and because appellee’s overall vagueness complaint in the trial court comports with his vagueness complaint on appeal, we address the parties’ arguments concerning a facial challenge to the statute.
     
      
      . The trial court concluded that the statute is "overly broad and void for vagueness.” The parties’ briefs do not focus on overbreadth. Therefore, we do not discuss overbreadth here. .
     
      
      . See Tex, Penal Code Ann. § 31.03(e)(1); see also Tex. Penal Code Ann, § 12.23 (West 2011) ("An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.").
     
      
      . This is undoubtedly the focus of appellee’s argument. Appellee summarizes his argument by stating,
      Section 31.03(e)(4)(F) ,.. vests unfettered discretion in local prosecutors to. decide whether the theft [of a certain metal] should be prosecuted as a Class C misdemeanor, or as a State Jail felony. The vagueness doctrine of the Fourteenth Amendment imposed a constitutional duty on the Texas Legislature .., to establish "minimum guidelines” to govern prosecutorial discretion and thereby prevent any “real possibility” that Section 31.03(e)(4)(F) could be enforced by local prosecutors in such an arbitrary fashion. In the argument portion of appellee’s brief, he contends,
      [T]he question presented on this appeal is whether, when enacting Section
      31.03(e)(4)(F), the Texas Legislature failed to "[establish] minimal guidelines” to govern prosecutorial discretion in a way that "authorizes or even encourages arbitrary and discriminatory enforcement.”
      [T]his, and only this, is the question.
      
        
      
      ... [Section 31.03(e)(4)(F) confers] totally unfettered-discretion upon a prosecutor to decide whether a defendant should be charged with a Class C misdemeanor punishable by a relatively small fine, or whether the defendant should be charged with a felony offense punishable by two years[’] confinement in a State Jail facility, for the identical conduct. ,.. It "authorizes .... arbitrary and discriminatory enforcement.”
     
      
      . These metals do not appear to be secondary or insignificant components of an aluminum baseball bat, a cast iron skillet, or a chain, all of which appear to be associated with appel-lee’s theft charge.
     
      
      . We express no opinion concerning whether there are some circumstances in which the statute may operate unconstitutionally. Appel-lee concedes that any as-applied challenge to the statute at this stage is not cognizable. Thus, we do not reach the trial court's as-applied conclusion, which it supported by its attachments to its findings of fact and conclusions of law, that the Legislature "did not envision [the application of section 31.03(e)(4)(F)] in this alleged circumstance.” [Emphasis added.]
      We also decline to opine about whether . section 31.03(e)(4)(F) must trump other parts of the theft statute under the in pari materia rule—an issue that appellee discusses in a postsubmission letter brief—because that issue is not necessary to the disposition of this appeal. See Tex. R. App. P. 47,1; Little v. State, 376 S.W.3d 217, 221 (Tex.App.-Fort Worth 2012, pet. ref’d).
     
      
      
        .See generally John Locke, Two Treatises of Government (Peter Laslett ed., Cambridge Univ. Press, 2d ed. 1967) (1690).
     
      
      . See generally David L. Wardle, Reason to Ratify: The Influence of John Locke’s Religious Beliefs on the Creation and Adoption of the United States Constitution, 26 Seattle U. L. Rev..291 (2002).
     
      
      . Galveston, H. & S.A. Ry. Co. v. De Groff, 110 S.W. 1006, 1010 (Tex.Civ.App.-Fort Worth 1908), rev'd on other grounds, 102 Tex. 433, 118 S.W. 134 (Tex.1909).
     
      
      . Fleming v. State, 455 S.W.3d 577, 589-90 (Tex.Crim.App.2014) (Keller, PJ., dissenting) (footnotes and internal quotation marks omitted), cert. denied, — U.S. -, 135 S.Ct. 1159, 190 L.Ed.2d 913 (2015).
     
      
      . Garcia v. Kubosh, 377 S.W.3d 89, 97 (Tex.App.-Houston [1st Dist.] 2012, no pet.).
     
      
      . See Tex. Const, art. III, § 1; Miller v. French, 530 U.S. 327, 341, 120 S.Ct. 2246, 2255, 147 L.Ed.2d 326 (2000); Ex parte Hayward, 711 S.W.2d 652, 655 (Tex.Crim.App.1986); Grant v. State, 505 S.W.2d 279, 282 (Tex.Crim.App.), cert. denied, 417 U.S. 968, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated in part on other grounds, 408 U.S. 937, 937, 92 S.Ct. 2862, 2862, 33 L.Ed.2d 755 (1972); Sasser v. State, 131 Tex.Crim. 347, 349, 98 S.W.2d 211, 212 (1936).
     
      
      . See Ex parte Granviel, 561 S.W.2d 503, 514 (Tex.Crim.App.1978) (relying on Margolin v. State, 151 Tex.Crim. 132, 138, 205 S.W.2d 775, 778-79 (1947), and Williams v. State, 146 Tex.Crim. 430, 438-39, 176 S.W.2d 177, 183 (1943)); see also In re Johnson, 554 S.W.2d 775, 781-82 (Tex.Civ.App.-Corpus Christi 1977), writ ref'd n.r.e., 569 S.W.2d 882, 883 (Tex.1978).
     
      
      . Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110(1972).
     
      
      . See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-504, 102 S.Ct. 1186, 1193-96, 71 L.Ed.2d 362 (1982); Smith v. Goguen, 415 U.S. 566, 575-82, 94 S.Ct. 1242, 1248-52, 39 L.Ed.2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972); Kramer v. Price, 712 F.2d 174, 176-78 (5th Cir.1983), reh'g en banc granted, 716 F.2d 284 (5th Cir.1983), grant of relief aff'd, 723 F.2d 1164 (5th Cir. 1984).
     
      
      . See Grayned, 408 U.S. at 108, 92 S.Ct. at 2298-99; Kramer, 712 F.2d at 178.
     
      
      . Chicago v. Morales, 527 U.S. 41, 64, 119 S.Ct. 1849, 1863, 144 L.Ed.2d 67 (1999) (holding loitering ordinance unconstitutionally vague because it "afford[ed] too much discretion to the police and too little notice to citizens who wish[ed] to use the public streets”); Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989).
     
      
      . Kolender, 461 U.S. at 357, 103 S.Ct. at 1858; Papachristou, 405 U.S. at 162, 92 S.Ct. at 843.
     
      
      . Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App.1985), cert. denied, 479 U.S. 815, 107 S.Ct. 68, 93 L.Ed.2d 26 (1986); State v. Wofford, 34 S.W.3d 671, 679 (Tex.App.-Austin 2000, no pet.).
     
      
      . May v. State, 765 S.W.2d 438, 440 (Tex.Crim.App.1989) (op. on reh'g); Goocher v. State, 633 S.W.2d 860, 865 (Tex.Crim.App. [Panel Op.] 1982); Wofford, 34 S.W.3d at 680.
     
      
      . See Tex. Penal Code Ann. § 31.03(e)(4)(F) (West Supp. 2015).
     
      
      . Tex. Occ. Code Ann. § 1956.040(b)-(b-l) (West Supp. 2015).
     
      
      . Id. § 1956.001.
     
      
      . See Tex. Penal Code Ann. § 31.03(e)(4)(F).
     
      
      . See Tex. Occ. Code Ann. §§ 1956.001(9), .040(b)—(b-1).
     
      
      . See id, §§ 1956.001(9), .040(b)-(b-l).
     
      
      . See Tex, Penal Code Ann. § 31.03(b)(2), (e)(4)(F).
     
      
      . See id. § 31.03(e)(3).
     
      
      . See ¿d. § 31.03(e)(4)(F),
     
      
      . See id. § 31.03(e)(1),
     
      
      . See id. § 31.03(e)(4)(F).
     
      
      . See id. § 31.03(e)(1). .
     
      
      . See Johnson v. State, 364 S.W.3d 292, 297 (Tex.Crim.App.) ("Theft has two. gravamina: the property and ownership.”), cert. denied, — U.S. -, 133 S.Ct. 536, 184 L.Ed.2d 351 (2012).
     
      
      . Baking Powder, Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/wiki/ Baking-
      powder# Usage_oL.aluxninum_compounds (last visited July 27, 2016) (permalink at https://en.wikipedia.Org/w/index.php7ti tle= Baking_powder&oldic=707002615); Antiper-spifant Safety; Should You Sweat It?, WebMD, http://www.webmd.com/skin-problems-and-treatments/features/antiperspirant-facts-safety (last visited July 27, 2016).
     
      
      . See Tex. Penal Code Ann. § 31.03(e)(4)(F),
     
      
      . See id.
      
     
      
      . Brass vs. Bronze, Diffen, ,http://www.diffen. com/difference/Brass_vs_Bronze (last visited July 27, 2016).
     
      
      . Id.
      
     
      
      . See Shults v. State, 575 S.W.2d 29, 29 (Tex.Crim.App. [Panel Op.] 1979).
     
      
      . Which U.S. Coin Has Absolutely No Copper in It?, About.com, http://coins.about.com/od/ uscoins/f/coin_nocopper.htm (last visited July 27, 2016).
     
      
      . See Tex. Code Crim. Proc. Ann. art. 14.06(b) (West Supp. 2015) (allowing peace officer to issue citation to person charged with Class C offense instead of taking the person before a magistrate); Tex, Penal Code Ann. § 12.23 (West 2011) (providing Class C punishment is a fine up to $500); Berrett v. State, 152 S.W.3d 600, 606 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd).
     
      
      . See Ex parte Castellanos, 420 S.W.3d 878, 882 (Tex.App-Houston [14th Dist.] 2014, no pet.) ("The defendant’s potential sentence and the nature of the crime are significant factors for us to consider when assessing the reasonableness of a bail amount.”) (citing Montalvo v. State, 315 S.W.3d 588, 593 (Tex.App-Houston [1st Dist.] 2010, no pet.), and Ex parte Hunt, 138 S.W.3d 503, 506 (Tex.App-Fort Worth 2004, pets, ref'd)).
     
      
      . Compare Tex, Penal Code Ann. § 12.23 (providing that person convicted of "Class C misdemeanor shall be punished by a fine not to exceed $500”), with Tex. Penal Code Ann. § 12.35(a)-(b) (West Supp. 2015) (providing that person convicted of state jail felony faces up to two years’ confinement in state jail and a fine of up to $10,000).
     
      
      . Ex parte Thompson, 442 S.W.3d 325, 339-40 (Tex.Crim.App.2014) (citations omitted).
     
      
      . See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling Roundup—April 2011, http://www.dallassierraclub.org/indeix. Ktm?c=con&s=24&sc=212311 (last visited July 27, 2016); Press Release, The Office of Tex. State Senator Royce West, Senator West Announces New State Law to Fight Metals Theft (Apr. 4, 2008), available at http://www. senate.state.tx.us/75r/Senate/Members/Dist23/ pr08/p040408a.htm (last visited July 27, 2016).
     
      
      . See Dallas Sierra Club Lone Star Chapter, Rita Raccoon, Recycling Roundup—April 2011; Press Release, The Office of Tex. State Senator Royce West, Senator West Announces New State Law to Fight Metals Theft (Apr. 4, 2008).
     
      
      . See Act eff. Sept. 1, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3309, 3310 (West) (codified at Tex. Penal Code Ann. § 31.03(e)(4)(F)).
     
      
      . State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998).
     
      
      . Tex. Code Crim. Proc, Ann. art. 21.09 (West 2009).
     
      
      . Lehman v. State, 792 S.W.2d 82, 84 (Tex.Crim.App.1990) (citing Tex. Code Crim. Proc. Ann. arts. 21.04, 21.11 (West 2009)).
     