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Click here for the full text of this decision FACTS:In 1998, appellant Cameron O. Bailey began working as a salesperson at Cornerstone Financial, where he sold purported high-yield certificates of deposit (CDs) on behalf of Cambridge International Bank of Grenada. Cambridge is not registered to conduct banking business in the United States or to sell securities in Texas. Although appellant claimed in newspaper advertisements and in the prospectus given to potential investors that the CDs were insured, they were not. Furthermore, appellant was not registered to sell securities in Texas, and in 1999, the Texas Securities Board began investigating him. In 2000, Cornerstone Financial shut down and defaulted on repaying the CDs. In 2002, the state brought criminal charges against appellant for three violations of the Texas Securities Act, including: 1. selling unregistered securities; 2. selling securities without being a registered securities salesperson; and 3. engaging in fraud in the sale of securities. At trial, defense counsel contended that appellant had been improperly indicted, because the certificates of deposits which he had sold to investors did not fall under the definition of securities under the Texas Securities Act. Because there was no controlling Texas or federal case law on the issue, defense counsel argued that the trial judge should decide whether the certificates of deposit constituted securities as a matter of law. The state agreed to this request, and both parties reserved their right to challenge the trial judge’s determination. In its charge to the jury, the court instructed that the certificates of deposit were securities under the Texas Securities Act and that the jury should find appellant guilty if the state had proved the other elements of the offenses beyond a reasonable doubt. After the jury determined appellant’s guilt, the trial judge imposed fines and confinement for each of the offenses. The trial judge sentenced appellant to five years’ confinement and a $1,000 fine on the first two indictments and eight years’ confinement and a $5,000 fine on the third indictment. On appeal, appellant claimed that the certificates of deposit at issue were not securities under the Texas Securities Act as a matter of law and that the trial court had erred in finding otherwise. The 8th Court of Appeals concluded that “whether a nominal certificate of deposit is or is not a security . . . depends on the facts and the determination of that issue must be left to a jury.” It then reframed appellant’s complaint to be that “the trial court erred in charging the jury that the certificates of deposit in this case were securities.” The court of appeals sustained this sole issue and remanded the case for a new trial. The state filed a petition for discretionary review, arguing that the court of appeals erred in finding jury charge error because: 1. The appellant affirmatively requested the trial court and not the jury decide the issue on which the reversal is based; 2. The appellant failed to object to the error at trial; and 3. The appellant did not argue the ground at trial or present it as a point on appeal. HOLDING:Reversed and remanded for resolution of whether the CDs in the case qualify as securities under the Texas Securities Act as a matter of law. On appeal, appellant continued to claim that the certificates of deposit in question were not securities under the Texas Securities Act as a matter of law. Appellant never argued that it was the province of the jury to determine whether the certificates of deposit were securities. The issue upon which the court of appeals reversed the trial court was not before it. In “re-fram[ing]” appellant’s complaint on appeal, the court of appeals relied on two provisions of the Texas Rules of Appellate Procedure 38.1 and 38.9. The Court of Criminal Appeals found no support for the court of appeals’ position under these provisions. Rule 38.1 deals with the requirements an appellant must meet in preparing his brief for the court, and appellant satisfied all of them in submitting his brief to the 8th Court of Appeals. Rule 38.9 instructs that the briefing rules are to be construed liberally, allowing the appellate court to “require additional briefing, and make any other order necessary for a satisfactory submission of the case” if it “determines . . . that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs.” Tex. R. App. Proc. 38.9(b). The court stated that while Rule 38.9 gives the appellate courts some discretion in remedying “substantive defects” in parties’ briefs, it does not allow the court of appeals to reach out and reverse the trial court on an issue that was not raised. The court continued: “The court of appeals reversed this case on an issue that was neither ruled upon by the trial court, nor raised on appeal. Its discretion does not extend so far. In the instant case, the court of appeals should have answered the question posed by Appellant on appeal. We sustain the State’s third ground for review, making it unnecessary to address its other grounds for review, which we dismiss.” OPINION:Meyers, J.

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