COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-324-CR
NO. 2-07-325-CR
STEPHEN BERNARD JONES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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OPINION
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A jury convicted Appellant Stephen Bernard Jones of three counts of
making a false statement to obtain property or credit of more than $200,000
in each of two cases.1 Upon his plea of true to habitual allegations, the jury
assessed his punishment at forty-five years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice on each count. The trial
1
… See Tex. Penal Code Ann. § 32.32 (Vernon Supp. 2008).
court sentenced him accordingly, ordering the sentences to be served
concurrently.
In three points, Appellant argues that the trial court abused its discretion
by allowing him to represent himself, that his multiple convictions and
sentences under each indictment violate double jeopardy protections, and that
the evidence is insufficient to show the amount of loss. We affirm the trial
court’s judgments as modified.
Background Facts
Appellant was an employee of Legacy Financial Group, a mortgage
company that helps prospective home owners navigate the mortgage loan
process. Appellant submitted uniform residential loan applications for two
separate residential properties, seeking loans in the amounts of $680,000 and
$544,000. Appellant made false statements on the applications, stating that
he owned two fictitious bank accounts. He also submitted another person’s
credit report as his own.
Double Jeopardy
In his second point, Appellant argues that he was denied double jeopardy
protection because he received multiple convictions and punishments under
each indictment, instead of just one conviction and sentence per indictment.
Section 32.32 of the penal code provides in pertinent part,
2
(a) For purposes of this section, “credit” includes:
(1) a loan of money;
...
(7) a mortgage loan.
(b) A person commits an offense if he intentionally or
knowingly makes a materially false or misleading written statement
to obtain property or credit, including a mortgage loan.
(c) An offense under this section is:
...
(7) a felony of the first degree if the value of the
property or the amount of credit is $200,000 or more.2
Each indictment contains three counts, but all of the counts within each
indictment deal only with a single loan application. The State argues that
because each material false or misleading written statement made by Appellant
in the loan applications was an allowable unit of prosecution, no double
jeopardy violation occurred regarding Appellant’s six convictions and sentences.
Appellant argues that each application is a single unit of prosecution. We hold
that the allowable unit of prosecution is the property or credit sought or
obtained via the false or misleading statement or statements. In this case,
because each application in this case sought different credit, there are two, not
2
… Id.
3
six, allowable units of prosecution.
The State relies on language in Cheney v. State, a case addressing not
the issue before us but whether statutes proscribing felony theft and making
a false statement to obtain property or credit were in pari materia. 3 The Cheney
court provided that “[s]ection 32.32, supra, by its own language, proscribes the
making of written false or misleading statements to obtain property or credit.
It is the act of making such statements that is the gravamen of the offense,”
and also stated that “[t]he offense is complete once the written, deceptive
statement relevant to obtaining property or credit is made, even if the
perpetrator is not successful in obtaining the property or credit as a result of his
written deception.” 4
We note that Cheney was decided twenty years ago, when committing
an offense under section 32.32 was a misdemeanor regardless of the value
involved. 5 In 2001, however, the Texas Legislature amended section 32.32 to
make the degree of the offense (and therefore the potential penalty) dependent
3
… Cheney v. State, 755 S.W.2d 123, 130 (Tex. Crim. App. 1988).
4
… Id. at 129.
5
… Act approved June 14, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex.
Gen. Laws 883, 937 (amended 2001) (current version at Tex. Pen. Code Ann.
§ 32.32).
4
on the value of the loan or credit sought.6 Although the Cheney court pointed
out that proof of the value of the property is a critical factor in the offense of
theft but not required to prove an offense under section 32.32 in effect at that
time,7 under the current statute proscribing the making of a false statement to
obtain property or credit, the value of the property is critical in determining both
the degree of the offense and the penalty range. 8
Additionally, the Cheney court was not faced with the issue before us.
As this court has previously explained,
When discerning the meaning of a statute, we begin with its
plain language. We focus our attention on the literal text of the
statute in question. If that language is clear and unambiguous, the
plain meaning of those words is applied. But if the plain language
leads to an absurd result that the legislature could not have
possibly intended, or if the language is ambiguous, we may
consider extra-textual factors to determine the statute’s meaning.
For example, if a statute may be interpreted reasonably in two
different ways, a court may consider the consequences of differing
interpretations in deciding which interpretation to adopt. If one
interpretation yields absurd results while the other interpretation
yields no such absurdities, the latter interpretation is preferred.9
6
… Act of May 24, 2001, 77th Leg., R.S., ch. 1245, 2001 Tex. Gen.
Laws 2934, 2935 (amended 2007) (current version at Tex. Pen. Code Ann. §
32.32).
7
… Cheney, 755 S.W.2d at 130.
8
… See Tex. Penal Code Ann. § 32.32(c).
9
… Adams v. State, 270 S.W.3d 657, 660 (Tex. App.—Fort Worth, pet.
filed) (citations omitted).
5
The State analogizes to the perjury statute in discussing the allowable
unit of prosecution, pointing out that each false statement during a grand jury
proceeding was held to constitute a separate offense in People v. Guppy. 10 We
note that statement is defined for purposes of the penal code perjury chapter
as “any representation of fact” 11 and that monetary value has no connection to
the offense grade or penalty range involved in perjury.12 On the other hand,
statement is not defined in the fraud chapter. 13
But section 32.03 in the fraud chapter provides that “[w]hen amounts are
obtained in violation of this chapter [the fraud chapter, including section 32.32]
pursuant to one scheme or continuing course of conduct, whether from the
same or several sources, the conduct may be considered as one offense and the
amounts aggregated in determining the grade of offense.” 1 4 That is, under
section 32.03, if a defendant successfully obtains a primary and secondary loan
under section 32.32 after submitting a fraudulent document or ten fraudulent
documents containing dozens of “materially false or misleading written
10
… 333 N.E.2d 576, 578–79 (Ill. App. 1975).
11
… Tex. Penal Code Ann. § 37.01(3) (Vernon Supp. 2008).
12
… See id. §§ 37.02–.03 (Vernon 2003).
13
… See id. §§ 32.01–.52 (Vernon 2003 & Supp. 2008).
14
… Id. § 32.03.
6
statement[s],” then the conduct may be considered as one offense and the total
amount received used to determine the grade of offense and therefore the
penalty range. 15 Under the State’s interpretation of the statute at issue,
though, a defendant who lies three times on a document to obtain a single loan
but fails to get the money could be convicted of three offenses and receive
three separate sentences, even though all three lies were focused on getting the
same, single benefit. Such a result would be absurd. 16 We therefore decline
to apply perjury law to this case.
We believe that an offense under current section 32.32 is more analogous
to a theft offense. In theft, the allowable unit of prosecution is the object or
objects stolen.17 The value of the property may be determined by aggregating
the amounts of various items stolen pursuant to one scheme or continuing
course of conduct,18 just like the value of the property sought or obtained in the
15
… See id. §§ 32.03, 32.32(b).
16
… See Adams, 270 S.W.3d at 660.
17
… See Stewart v. State, 44 S.W.3d 582, 588 (Tex. Crim. App. 2001)
(“[T]he gravamen of theft is in depriving the true owner of the use, benefit,
enjoyment or value of his property, without his consent.”) (quoting McClain v.
State, 687 S.W.2d 350, 353 (Tex. Crim. App. 1985)).
18
… Tex. Penal Code Ann. § 31.09 (Vernon 2003).
7
fraud chapter.19
Consequently, we hold that the gravamen, or allowable unit of
prosecution, for the offense of making a false statement to obtain property or
credit is the property or credit sought or obtained pursuant to the false or
misleading statement or statements. We further hold that, here, each false
statement in each case is an alternative manner and means of trying to obtain
the single mortgage loan involved in each case. Therefore each indictment will
support only a single conviction. Because the offenses and sentences are
identical in severity, we modify each judgment to vacate the convictions and
sentences for the second and third counts.20 We address Appellant’s remaining
points only as to the live counts.
Sufficiency of the Evidence
In his third point, Appellant argues that the evidence is insufficient to
show the amount of loss alleged in each indictment. Although he does not
state whether he is arguing that the evidence is legally insufficient or factually
insufficient, he cites cases dealing with both legal and factual sufficiency. In
19
… Id. § 32.03.
20
… See Ex parte Cavazos, 203 S.W.3d 333, 338 & n.8 (Tex. Crim. App.
2006); see also Ex parte Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App.
1991).
8
the interest of justice, therefore, we address his third point under both
standards.
Section 32.32 is an unusual statute because it does not require any harm
to the complainant. The statute does not require that a defendant obtain the
property or credit sought, only that a defendant attempt to obtain such property
or credit through the use of materially false or misleading statements.21 The
amount of property, loan, or credit sought, rather than the amount of loss
suffered by the complainant, determines the severity of the punishment. 22 The
State, therefore, was required to prove in each case only the amount of the
loan sought by Appellant when he made the false statements, not the amount
Appellant received.23 The State proved that Appellant sought property or credit
of more than $200,000 in each case. Viewing all the evidence in the light most
favorable to the prosecution,24 we hold that the evidence is legally sufficient to
support Appellant’s convictions under the first count of each indictment.
21
… See Tex. Penal Code Ann. § 32.32(b).
22
… Id. § 32.32(c); Cheney, 755 S.W.2d at 129.
23
… See Tex. Penal Code Ann. § 32.32(b), (c); Cheney, 755 S.W.2d at
129.
24
… See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (both
providing standard of review for legal sufficiency).
9
Viewing all the evidence in a neutral light,25 we also hold that the evidence is
factually sufficient to support his convictions under the first count of each
indictment. We overrule Appellant’s third point.
Self-Representation
In his first point, Appellant argues that the trial court reversibly erred and
abused its discretion in allowing Appellant to represent himself in the joint jury
trial of the two causes without a written waiver of counsel in those causes in
compliance with article 1.051 of the Texas Code of Criminal Procedure.
The record shows that on March 2, 2007 at a pretrial hearing, the trial
court called the original cause numbers and the re-indicted cause numbers,
explaining that 1054498R was the re-indictment of 1005292D and that
1054601R was the re-indictment of 1005291D. All motions filed in the original
cause numbers were specifically carried over to the re-indicted causes.
At the March 2, 2007 hearing, Appellant insisted on dismissing his court-
appointed attorney, Robert Ford, and representing himself. Appellant signed a
written waiver of counsel that same date, after the re-indictments, and both re-
25
… See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008);
Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson v.
State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006); Johnson v.
State, 23 S.W.3d 1, 8, 9, 12 (Tex. Crim. App. 2000); Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997); Sims v. State, 99 S.W.3d 600, 603
(Tex. Crim. App. 2003) (all providing standard of review for factual sufficiency).
10
indictment numbers are listed at the top of the waiver. Although the waiver
does not specifically track the language of article 1.051(g) of the Texas Code
of Criminal Procedure, 26 it does make clear that Appellant did not want to be
represented by counsel. The trial court asked Appellant his reasons for not
wanting a lawyer and whether he was able to represent himself and went to
great lengths to admonish Appellant orally on the record. Appellant persisted
in demanding to represent himself.
The trial court allowed Appellant to proceed pro se, granting his waiver
of counsel in each case. The trial court nevertheless appointed standby
counsel for Appellant, and in the penalty phase of the trial, Appellant elected
to proceed with counsel.
As the State points out, a defendant is constitutionally and statutorily
entitled to represent himself at trial. 27 The trial court also complied with the
requirement that it advise the defendant of the dangers and disadvantages of
self-representation so that the defendant “knows what he is doing and his
26
… See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2008).
The changes between the version of the statute applicable to Appellant and the
current statute are immaterial to this appeal; we therefore reference the current
statute.
27
… Faretta v. California, 422 U.S. 806, 819–20, 95 S. Ct. 2525, 2533
(1975); Tex. Code Crim. Proc. Ann. art. 1.051(f) (Vernon Supp. 2008).
11
choice will be made with eyes open.” 28 The State correctly argues that a
defendant’s knowing and intelligent choice to represent himself must be
honored.29 The State also correctly argues that article 1.051(g) is not
mandatory and that no writing is required to waive the constitutional right to
counsel.30 No particular form is required to effectively waive counsel, but the
record must reflect that a defendant has intentionally, voluntarily, and with full
knowledge given up his right to be represented by counsel. 31
In this case the oral admonishments and statements by Appellant make
it clear that the trial court complied with the requirements of Faretta and that
Appellant’s waiver was voluntarily, intelligently, and with full understanding
entered on the record. Consequently, we overrule Appellant’s first point.
28
… Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984)
(quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541).
29
… See Faretta, 422 U.S. at 834, 95 S. Ct. at 2541; Blankenship, 673
S.W.2d at 583.
30
… Tex. Code Crim. Proc. Ann. art. 1.051(g); Burgess v. State, 816
S.W.2d 424, 430–31 (Tex. Crim. App. 1991).
31
… See Faretta, 422 U.S. at 835–36, 95 S. Ct. at 2541; Burgess, 816
S.W.2d at 428–29.
12
Conclusion
Having overruled Appellant’s first and third points, but having sustained
his second point and vacated the convictions and sentences under the second
and third counts of each judgment, we affirm the trial court’s judgments as
modified.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON and DAUPHINOT, JJ.; DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).
PUBLISH
DELIVERED: February 5, 2009
13
Stephen Bernard Jones v. State
Combined Opinion