Opinion issued June 9, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00032-CR
VANCE GALVIN ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 3
Galveston County, Texas
Trial Court Cause No. 220,950
MEMORANDUM OPINION
Vance Galvin Allen, appellant, pleaded not guilty to theft, in the amount of $500, but less than $1500. The jury found him guilty and assessed punishment at 60 days’ confinement and a fine of $1,500. In five points of error, appellant contends that the trial court erred in (1) denying his requested jury instruction on value; (2) denying his requested jury instruction on mistake of fact; (3) denying his requested jury instruction on impeachment by conviction; (4) submitting a charge to the jury that contained fundamental error; and (5) denying his right to effective assistance of counsel at trial. We affirm.
BACKGROUND
In March 2002, appellant started work as a truck driver for Angel Moving, a moving company that transports goods across the country. John Therrell, complainant, owned Angel Moving and was responsible for hiring appellant. Angel Moving employees are required to keep in close contact with the main office when they are on the road. Drivers have a mandatory 7:00 a.m. check-in every day they are on the road. They are required to call the office to provide updates on their whereabouts and to obtain directions. The company provides all financial assistance required for a driver to complete the move. Each driver is paid partially by his mileage at a rate of 30 cents per mile.
On May 24, 2002, Therrell told appellant that his truck needed maintenance before appellant embarked on another move. Because Therrell did not know the correct spelling of the alignment company’s name, but appellant knew where it was located, Therrell gave appellant a check, which was left blank except for Therrell’s signature. Therell claimed the purpose of the check was for appellant to pay for the alignment on his truck. Therrell also testified that another employee, Jeffrey Akin, was present when Therrell gave appellant the check.
At the same time, Therrell gave appellant a completely filled-out check from the payroll account. Therrell testified that the purpose of this check was to advance appellant $600 for expenses on the road before his paycheck came due. Drivers were not paid until after all the work was completed, the total milage and expenses calculated, and no damage was found on the equipment. According to Therrell, the blank check he gave appellant was from the business account for expenses, not payroll. Checks from the business account were marked by the name Angel Moving, whereas the payroll account checks were marked by the name Angel Relocation, Incorporated.
Later that day, Therrell discovered that the amount in the business expense account had decreased $3,200. Therrell was unable to get in touch with appellant or locate his truck. The next day, appellant called the office and indicated that the truck was at a truckstop one hour north of Houston. Therrell drove there and recovered the truck.
When it was recovered from the bank, the signed blank check Therrell had given to appellant to pay for an alignment was made out to Vance Allen for $3,200. Therrell testified that he did not write in either the amount or the name. Therrell also said he did not authorize appellant to write the check out to himself or for that amount, but trusted him to fill in the check for the amount the alignment would cost. Appellant testified that, when Therell gave appellant the blank check on May 25, Therrell said, “Here, take it. This is what I owe you.” Appellant claimed that Therrell wanted appellant to take the blank check and cash it in the amount that Therrell owed him. Appellant testified that they argued about how much Therrell owed him, but appellant claimed he had not been paid in at least six weeks. Appellant believed he was owed between $3,800 and $4,500. Contrary to Therrell’s testimony, appellant said that he was not supposed to get his truck aligned on May 24. Appellant testified that he took the truck for maintenance as requested by Therrell and that he was given two checks. Appellant testified that there was no one else present when Therrell gave these checks to appellant. Therrell gave appellant the first check in the amount of $600 for money that was allegedly owed appellant. However, after appellant complained that he wanted the rest of the money that Therrell still owed him, Therrell wrote out another check, which was blank except for his signature. Appellant testified that Therrell, after receiving a phone call, tossed appellant the check. Appellant took the check and left. Appellant put his name on the check and wrote it out for $3,200. Appellant then cashed both the $3,200 check and the $600 check. Appellant claimed he was still owed money from Therell.
DISCUSSION
Value Instruction
In his first point of error, appellant asserts that the trial court erred by not submitting his requested jury instruction on value. Specifically, appellant contends that an instruction should have been included in the court’s charge to the jury explaining that he was entitled to a deduction from the amount allegedly stolen in the amount of the value of the property for which appellant gave consideration or in which he had a legal interest. Tex. Pen. Code Ann. § 31.08(d) (Vernon 2003).
A defendant has the right to an instruction on any defensive issue raised by the evidence upon a timely request, whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).
Appellant submitted his proposed instruction in writing and dictated it into the record. The requested instruction read as follows:
In this case, the State has alleged that Defendant, Vance Gavin Allen, is guilty of theft of property, the value of at least $500.00 and less than $1,500.00. In order to prove the value of the property allegedly stolen, the State must prove the fair market value of the property at the time and place of the offense beyond a reasonable doubt. However, if Defendant, Vance Gavin Allen, proves by a preponderance of the evidence that he gave consideration for the property allegedly stolen, the amount of the consideration so proven shall be deducted from the value of the property in determining the value for purposes of this case.
The court denied appellant’s requested instruction.
In requesting this instruction, appellant cited to section 31.08(d) of the Texas Penal Code, which states, “If the Defendant proves by the preponderance of the evidence that he gave consideration for the property allegedly stolen, the amount of the consideration so proven shall be deducted from the value of the property in determining value for purposes of this case.” Tex. Pen. Code Ann. § 31.08(d).
At trial, appellant submitted evidence regarding the amount of money he was owed for his services by the complainant, Mark Therrell. Appellant testified that he was owed about $3,800. Appellant testified that he had not been paid in over a month. Appellant also testified that he was given the blank check by Therrell to pay him for his labor and mileage. Appellant claims Therrell admitted that appellant was owed $1,100, but Therrell testified that he did not owe appellant any money at the time he gave appellant the blank check. Therrell testified that the approximately $1,100 that appellant had earned for a prior run had not yet come due according to the company pay schedule.
Appellant’s testimony at trial that he had continued to do work for Therrell even after he was allegedly owed money was evidence of consideration for the $3,200 cash that appellant received after making out the blank check given to him by Therrell for that amount. Appellant provided some evidence that he had given consideration for the property he allegedly stole. Because appellant’s requested instruction was proper, the trial court erred in rejecting the instruction.
Having determined that the charge contains error, and that appellant specifically objected to the error at trial, we reverse if the error was calculated to injure the rights of appellant, which means no more than that there must be “some harm” to the accused from the error. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). Under that analysis, reversal is required if the error resulted in some harm to the accused, “some” meaning “any.” Arline, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). In determining whether the error was harmful and reversal is required, an evidentiary review must be conducted, as well as review of any part of the record as a whole that may illuminate the actual, not just theoretical, harm to the accused. Id.; Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). For this review, the presence of actual harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Almanza, 686 S.W.2d at 171. If any harm is found after conducting this review, then reversal is required. Abdnor, 871 S.W. 2d at 732.
We begin by analyzing the jury charge itself. See Almanza, 686 S.W.2d at 171; Madden v. State, No. 01-02-01243-CR, 2005 WL 615624, at *4 (Tex. App.—Houston [1st Dist.] Mar. 17, 2005, no pet.). The jury was given an instruction on the elements of theft, specifically that a person “commits an offense of Theft if he unlawfully appropriates property with intent to deprive the owner of the property.” (emphasis added). This was followed by an article 38.10 instruction, indicating that it is not a defense that the accused had an interest in the property stolen if another person had the right of exclusive possession of the property. The charge contained a number of definitions, including a definition of “appropriation,” which ended by stating that “[a]ppropriation of property is unlawful if it is without the owner’s effective consent.” An “[o]wner” was defined as “a person who has title to the property, possession of the property, or a greater right to possession of the property than the person charged; or is a holder in due course of a negotiable instrument.” The charge gave the jury the ability to find appellant not guilty if they believed his testimony and thus found that he did not unlawfully appropriate the money.
We next examine the state of the evidence. See id. Therrell testified that he told appellant that the blank check that he signed and gave to appellant was to be used to pay for an alignment on the truck appellant was driving. Therrell contested that he told appellant that the check was to be written out in the amount of money Therrell owed to appellant. In fact, Therrell testified that any money appellant was supposedly owed had not yet come due. Therrell also testified that although the last paycheck appellant had received was on April 2, 2002, he sent appellant money numerous times through Western Union for appellant’s labor, fuel, and to cover his expenses on the road.
However, appellant offered a different version of events. Appellant testified that Therrell owed him thousands of dollars for his labor. Appellant also stated that before he received the two checks from Therrell on May 24, he had not received a paycheck in six weeks. Appellant admitted into evidence a log chronicling the miles he had driven one of Therrell’s trucks in between his last paycheck on April 2 and May 24. Finally, appellant testified, contrary to Therrell’s testimony, that it was his understanding that Therrell gave him the checks as payment for the wages that he was owed by Therrell. Appellant was able to offer evidence in support of his defensive theory that he did not unlawfully appropriate the money from Therrell. The jury was presented with testimony presenting two different perspectives detailing for what purpose the blank check with Therrell’s signature was to be used.
We must also examine the arguments of counsel. See id. Appellant’s argument centered on the idea that only one element of the theft offense was not proven, unlawful appropriation of property. Appellant’s counsel claimed that the case came down to witness credibility and whether the jury believed appellant or Therrell. She expressed her inability to explain how the State came up with the value of the allegedly stolen property of $500 but less than $1,500. She told the jury to look carefully at the issue of whether there was consent, who was the owner of the property, and how much money was owed to appellant.
The jury’s decision to believe the testimony of Therrell over the testimony of appellant was not affected by the trial court’s erroneous refusal to include appellant’s instruction on value because the contested issue at trial was whether Therrell had consented to appellant’s appropriation of the check in the first instance, regardless of the amount that appellant filled in the blank. It was not an issue of whether it should have been filled out for $50.00 or $500.00 or any other amount. The court’s denial of appellant’s requested instruction did not affect appellant’s ability to argue to the jury that Therrell had consented to appellant’s appropriation of the property or that appellant was the rightful “owner” of the property.
In its closing argument, the State brought attention to article 38.10. The State stated
But you remember in voir dire she told you that there was a defense to theft if the complaining witness, Mark Therrell, owed some money to the Defendant? That’s what she told you. Well, that’s not the law. If you look at No. 2 that’s what it says. There it’s no defense from prosecution if the actor has an interest in the property or service stolen if the other person has the right of exclusive possession of the property.
This was the only mention the State made of instructions or defensive theories. The State instead argued that, whatever the amount, Therrell had never consented to the appropriation of the money from his checking account. The State told the jurors that all they needed to decide was whether Therrell gave appellant the check for an alignment or not. If the alignment was the purpose for which Therrell gave appellant the signed check, the prosecutor asked the jury to find appellant guilty of theft. The remainder of the State’s argument was a summary of the evidence the jurors heard throughout the trial.
After examining the jury charge, the jury verdict, the evidence at trial, the weight of the probative issues, and the arguments of counsel, we conclude that the failure to provide an instruction on value did not produce any actual harm to appellant. See id. at 172. Accordingly, we overrule appellant’s first point of error.
Mistake of Fact Instruction
In his second point of error, appellant asserts that the trial court erred by denying his requested jury instruction on the defense of mistake of fact. See Tex. Pen. Code Ann. § 8.02 (Vernon 2003).
Appellant dictated the following proposed instruction into the record:
Under our law it’s a defense of prosecution that a person, through a mistake formed a reasonable belief about a matter of fact, if the mistaken belief negated the kind of culpability required for commission of the offense. The tern [sic] ‘reasonable belief’ as used herein means a belief that would be held by an ordinary and prudent man in the same circumstances as the Defendant. Therefore, if Mr. Allen reasonably believed that he was the owner of the property and that acting under such belief, he kept the property or if you have a reasonable doubt thereof, then you will find the Defendant not guilty.
The mistake of fact defense is codified in the Texas Penal Code, which provides that “[i]t is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.” Tex. Pen. Code Ann. § 8.02(a) (Vernon 2003). A defendant is entitled to a jury instruction on every defense theory raised by the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). Appellant contends that the evidence supported a defensive theory that appellant formed a reasonable, but mistaken belief about his authority to fill in the check and cash the check as payment for services rendered, which negated the culpability required for commission of the charged offense.
When determining the validity of a mistake of fact defense, the inquiry is into the mistaken belief of appellant. Montgomery v. State, 588 S.W.2d 950, 953 (Tex. Crim. App. 1979). The defense impliedly looks to the conduct of others only to the extent that such conduct contributes to the actor’s mistaken belief, and does not look at all to the belief or state of mind of any other person. Id.
Applying the law on mistake of fact in Gardner v. State, the Court of Criminal Appeals held that a mistake of fact instruction was proper in an unauthorized use of a motor vehicle case where the defendant alleged that he had been given permission to operate the vehicle by a third party he believed to be the owner. 780 S.W.2d 259, 263 (Tex. Crim. App. 1989). The defendant did not claim that he had the consent of the “true” owner, but rather a third party whom he believed to be the owner. Id. at 260. The court held the instruction was proper because the jury could have believed both (1) that the defendant believed that he had the consent of the third party to use the vehicle and (2) that the true owner had not given the defendant permission. Id. at 262-63. However, in Bruno v. State, the Court of Criminal Appeals held that such an instruction was not proper when the defendant testified that the owner of the vehicle gave him permission to use her car. 845 S.W.2d 910, 912-13 (Tex. Crim. App. 1993). In Bruno, no third party was involved to create the mistaken belief as to who the true owner was. Id. at 913. Therefore, the jury could only believe the defendant’s version or the owner’s version, but not both. The court concluded that “[s]imply because appellant testified that he had the consent of the owner of the vehicle does not entitle him to a mistake of fact instruction.” Id.
Similarly, the proposed instruction here did not constitute a mistake of fact defense. Appellant testified that Therrell gave him permission to fill out the check as a paycheck for the amount that he was owed by Therrell. As in Bruno, there was no third party involved. Appellant did not rely on the words, representations, or conduct of any third party as would be required to support his argument that he was entitled to an instruction on the mistake of fact defense. Bertrand v. State, 22 S.W.3d 660, 662 (Tex. App.—Amarillo 2000, pet. ref’d). In the absence of a third party, the jury could not believe both the testimony of Therrell and the testimony of appellant. Only one of the incompatible stories could be believed. A mistake of fact instruction was, therefore, improper. See id.
Accordingly, we overrule appellant’s second point of error.
Impeachment by Conviction
In his third point of error, appellant asserts that the trial court erred by denying his requested jury instruction on the limited admissibility of prior convictions for impeachment.
Appellant made the following request for a limiting instruction on appellant’s prior conviction into the record:
A limine [sic] instruction on that impeachment that that [sic] evidence of that conviction goes to impeachment only and not as proof that he committed this crime and that they can’t use proof of conviction of that crime to find that he committed this crime.
Although appellant alleges that he submitted a proposed instruction to the court, appellant’s proposed instruction does not appear in the record on appeal. The court later refused to submit such an instruction, stating, “I’ve read both proposals, and I know that I said earlier that we should rework it to fit both, because I think that both of you have stated and the record has reflected that there are prior convictions not only by the witness but also the Defendant. And I believe that this Court’s charge is going to adequately address the credibility of the witnesses and the weight to be given their testimony.” The court’s charge, however, did not contain a limiting instruction regarding the use of extraneous offenses or prior convictions.
We note that appellant made no request for any limiting instruction until after both sides had closed and argued the case. However, prior to the reading of the court’s charge, appellant objected to the omission of a limiting instruction on impeachment by conviction.
Texas Rule of Evidence 105(a), upon which appellant relies, provides “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Tex. R. Evid. 105(a). This rule provides a basis for the trial court to instruct the jury on the limited admissibility of certain evidence at the time it is admitted. The rule provides no support for the contention that error is preserved by a request for a limiting instruction made, not during the presentation of evidence, but as an objection to the court’s charge. McNiel v. State, 757 S.W.2d 129, 136 (Tex. App.—Houston [1st Dist.] 1988, no writ). Appellant did not request a limiting instruction when the evidence was admitted. See Tex. R. Evid. 105(a); McNiel, 757 S.W.2d at 136 (stating that Texas Rule of Evidence 105(a) provides for limiting instruction only at time evidence is admitted). An objection to, or request for, an instruction in the jury charge is not sufficient to preserve error if no limiting instruction is requested when the evidence is admitted. Id. Thus, the trial court had no obligation under Rule 105(a) to provide a limiting instruction for appellant.
Accordingly, we overrule appellant’s third point of error.
Jury Charge
In his fourth point of error, appellant asserts that the trial court erred by (1) denying his requested jury instructions as outlined in the three previous points of error, (2) failing to instruct the jury sua sponte on two lesser-included offenses, and (3) improperly including an instruction based on section 31.10 of the Texas Penal Code. See Tex. Pen. Code Ann. § 31.10 (Vernon 2003). Because this point of error complains of numerous alleged errors, we conclude that this point of error is multifarious. See Wells v. State, 576 S.W.2d 857, 859 (Tex. Crim. App. 1979).
Article 40.09(9) of the Code of Criminal Procedure states, in relevant part,
[A]nd if the court, upon consideration of such ground of error in light of the arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness, or any other technical defect that may exist in the language employed to set forth such ground of error.
Tex. Code Crim. Proc. Ann. art. 40.09(a) (Vernon Supp. 2004-2005). Because we can identify and understand appellant’s various contentions concerning the court’s charge, we will address appellant’s contentions regarding lesser-included offenses and the court’s section 31.10 instruction. See Ben-Schoter v. State, 638 S.W.2d 902, 902-03 (Tex. Crim. App. 1982).
Regarding lesser-included offenses, appellant argues that the trial court should have instructed the jury on the class B misdemeanor of theft of a value of $50 to $500 and the class C misdemeanor of theft of a value of less than $50. If the facts presented at trial raise the issue of a lesser-included offense and a jury charge is properly requested, then a charge on the issue must be given. Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App. 1991). However, appellant never requested such a charge at trial. In Posey v. State, the Court of Criminal Appeals held the trial judge had no duty to sua sponte instruct the jury on defensive issues. 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired and obtain a ruling upon the party’s request, objection, or motion. Tex. R. App. P. 33.1(a). Therefore, appellant failed to preserve this issue for appeal.
Regarding the court’s instruction on section 31.10 of the Texas Penal Code, appellant argues that the instruction negated appellant’s defense and theory of the case and removed the jury from its role as fact finder in this case. Because appellant failed to object to this instruction at trial, we find that appellant failed to preserve this issue for appeal.
Accordingly, we overrule appellant’s fourth point of error.
Ineffective Assistance of Counsel
In his fifth point of error, appellant asserts that he received ineffective assistance of counsel at trial. Appellant contends that his trial counsel was ineffective because of cumulative errors occurring before and during trial, including (1) failing to properly identify the applicable Penal Code provision on value as a definition; (2) failing to conduct voir dire on the defense of mistake of fact; (3) failing to request a jury charge on lesser-included offenses; (4) using civil statutes and case law as a basis for moving for a directed verdict; (5) failing to object to improper evidence; (6) failing to properly impeach testimony; (7) failing to preserve error on excluded defense evidence; (8) failing to file adequate discovery; and (9) failing to properly object to the State’s improper jury argument.
Under Strickland v. Washington, to prevail on an ineffective assistance of counsel claim, the applicant must show that (1) counsel’s performance was deficient by falling below an objective standard of reasonableness and (2) there is a probability sufficient to undermine the confidence in the outcome that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We “indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance,” and that “the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)).
Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The appellant must overcome this presumption. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no writ). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: “[i]n the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at 813-14.
In his first claim, appellant asserts that his trial counsel was ineffective because during voir dire he failed to distinguish the difference between a definition and a defense. As discussed under point of error one, this definition was inapplicable and, therefore, trial counsel could not be deficient for failing to properly identify it.
In his second claim, appellant asserts that counsel was ineffective because he failed to voir dire on mistake of fact. This court will not engage in speculation about counsel’s reasons or strategy. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Because counsel used all the time allotted for his voir dire, he was not deficient or lacking in tactical or strategical decision-making so as to overcome the presumption that counsel’s performance was reasonable and professional. In the absence of a record reference concerning counsel’s reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his actions. Thompson, 9 S.W.3d at 814; Gamble, 916 S.W.2d at 93.
In his third through ninth claims, the record is silent as to why trial counsel chose to act the way in which she did. To find trial counsel ineffective would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Therefore, appellant has not met his burden to overcome the presumption that the challenged actions might be considered sound trial strategy.
Accordingly, we overrule appellant’s fifth point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Do not publish. Tex. R. App. P. 47.2(b).