Torrance Ray Evans v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN








NO. 03-01-00013-CR

NO. 03-01-00014-CR


Torrance Ray Evans, Appellant

v.



The State of Texas, Appellee








FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT,

NOS. B-99-0269-S & B-99-0270-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING


A jury convicted Torrance Ray Evans of two counts of theft. Evans was convicted of depriving Lynn Alexander, a car dealer, of money on several occasions. Evans managed a body shop owned by a company Alexander wholly owned. The State's theory was that Evans, through companies he controlled (Baxter Auto Parts and Auto Trim Out), billed and took payment from Alexander's company for parts not delivered. The court assessed as punishment terms of fifteen and thirty years in prison. Evans raises four issues on appeal, complaining of the court's admission of evidence and of the insufficiency of the evidence to support the conviction. We will affirm the judgments.

Though there are two trial and appellate cause numbers, we will consider the cases together. The causes arise from a continuous sequence of events. In appellate cause No. 03-0100013-CR, the jury found Evans guilty of taking between $1500 and $20,000 on several instances from September 1996 to September 1997, taking between $20,000 and $100,000 in all. In appellate cause No. 03-01-00014-CR, the jury found him guilty of taking between $1500 and $20,000 on several instances from November 1997 to March 1998, taking between $100,000 and $200,000 in all. The charges in the two indictments were tried in a single trial with no discernable differentiation. There is one reporter's record. The issues on appeal are identical and the briefs, but for the different cause numbers and punishments detailed, are identical.

Evans first contends that the court erred by admitting bank records obtained through a grand jury subpoena. He contends that the admission of these records violated his expectation of privacy in these records, violating the federal and state constitutions. See U.S. Const. Amend. IV; Tex. Const. art. I, § 9. He also complains about the State's use of the grand jury subpoena to develop a prosecution instead of simply to deliver evidence to the grand jury.

The Supreme Court has rejected almost identical concerns. See United States v. Miller, 425 U.S. 435 (1976). In Miller, the district court denied a defendant's motion to suppress records obtained from a bank pertaining to the defendant's accounts at that bank by use of a grand jury subpoena. Id. at 438-39. The court of appeals reversed, holding that the subpoena of the records from the bank improperly circumvented the defendant's Fourth Amendment protection against unreasonable searches and seizures. Id. at 439. The Supreme Court reversed the appellate court's judgment, holding that the defendant had no privacy right that covered the bank's records, reasoning that such documents as checks, deposit slips, and financial statements are conveyed to the bank voluntarily and are viewed by parties to the transaction as well as bank employees, defeating any claim of privacy interest. Id. at 442. The Court wrote that



the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.



Id. at 442-43.

The court of criminal appeals has rejected a similar challenge to the admission of a hospital's records of a defendant's blood-alcohol test obtained by grand-jury subpoena. State v. Hardy, 963 S.W.2d 516, 518 (Tex. Crim. App. 1997). The court wrote, "[W]hatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident." Id. at 527. Though both cases were decided under the federal constitution only, we see no basis on which to conclude that the state constitution would provide more protection on these facts. We resolve issue one in favor of the judgments.

Evans next contends that the district court erred by admitting evidence of his character to show action in conformity with that character. See Tex. R. Evid. 404(a). An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). A reviewing court should not reverse a trial court whose ruling falls within the "zone of reasonable disagreement." Id. at 391. Evidence of other acts is not admissible to show character conformity, but may be admissible for other purposes such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident. Tex. R. Evid. 404(b). Evans alleges that the State introduced statements he made in his personnel records to show that he lied, hoping the jury would infer that he was more likely to have committed theft. (1) The State contends that it introduced the evidence, not to prove character conformity, but to link Evans to phony parts purchases made from Auto Trim Out by linking him to Rachella Leggett. Testimony showed that Evans introduced Rachella as his wife. Documentary evidence introduced showed that on some personnel documents, Evans claimed Rachella as his wife. Concerns about Evans's credibility arise from the State's introduction of other evidence in which he claimed Tina Evans as his wife, and still others claiming Tina as his sister or his daughter. Rachella's driver's license listed the same address as Evans's former address in Mesquite, Texas. Rachella signed a document saying she did business as Auto Trim Out and endorsed many checks made to that company. Though the varying representations in the personnel documents indicate some deceit, they are admissible to link Evans to Auto Trim through Rachella. The district court did not abuse its discretion in admitting this evidence.

The court also admitted over objection evidence showing that on one insurance form Evans listed Tina Evans as his sister. Even if the court erred by admitting this evidence, the error is harmless. Other evidence, admitted without objection, showed that Evans variously claimed Tina Evans as his wife and as his daughter. Admission of one representation that he claimed Tina as his sister can have little effect on his credibility in light of other evidence admitted without objection that shows he has claimed both Tina and Rachella as his wife, has claimed both as his dependents along with his children, and has also claimed Tina as his daughter. If admission of this evidence was error, we hold that it did not affect his substantial rights. See Tex. R. App. P. 44.2(b). We resolve issue two in favor of the judgments.

By his third and fourth issues, Evans contends that the verdicts were not supported by legally and factually sufficient evidence. When reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). Any inconsistencies in the evidence should be resolved in favor of the verdict. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App . 1988). This standard of review is the same for both direct and circumstantial evidence. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). When reviewing the factual sufficiency of the evidence, we consider all the evidence in a neutral light and reverse only if the verdict is so contrary to the overwhelming weight of the evidence as to be unjust. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We must accord the jury's verdict due deference and should not, in effect, become the thirteenth juror. See id. at 133. We cannot interfere with the jury's resolution of conflicts in the evidence or pass on the weight of testimony or credibility of a witness; unless the record clearly reveals that a different result was appropriate, we defer to the jury's determination concerning what weight to give contradictory testimonial evidence because the jurors' resolution of such conflicts often turns on an evaluation of credibility and demeanor by the jury. See Johnson, 23 S.W.3d at 8.

Evans was charged with theft. Tex. Penal Code Ann. § 31.03 (West Supp. 2001). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of property. Id. "Appropriate" means to acquire or otherwise exercise control over property. Id. § 31.01(4)(B). Appropriation is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1). Consent is not effective if it is induced by deception or coercion. Id. § 31.01(3)(A).

The State called many witnesses and introduced hundreds of documents in support of the charges. About two years after Evans became body-shop manager, Alexander's staff (2) grew concerned about the high numbers of accounts receivable in the body shop. There was a significant discrepancy between the number of cars listed in the records as "work in process" and the number of cars actually in the shop. All of the suspicious accounts involved purchases of parts from Baxter Auto Parts and Auto Trim Out.

Further investigation showed many abnormalities in invoices and repair orders involving parts from Baxter and Auto Trim. More than $250,000 in insurance claims for parts purchased from these companies remained unpaid. On cars with these unpaid claims, there were often two repair orders or two invoices for the same car. The first document would show parts purchased and paid for by insurance; the second would show the parts from the first documents plus many more parts purchased from Baxter or Auto Trim, but not paid for by the insurance company. Often, these extra parts were duplicative of parts on the first documents; sometimes, the duplicative parts were listed by different names referring to the same part, while other times the second documents would show the ordering of a multi-part assembly and, separately, the components of that assembly. Some repair orders listed many parts but would not account for the labor needed to install them. Evona Artzel, the body-shop office worker, testified that many of these extra parts appeared unnecessary given the original description of the damages--for example, replacement of front-end parts to repair a rear-end collision, or parts supplied to repair totaled cars. (3) More than sixty times, the second documents included the purchase of a clip--a portion (often the front third or back third) severed from a "donor car" and installed onto a customer's car; this struck Artzel as unusual because she did not remember seeing more than five such clips delivered during the eighteen or so months she worked for Evans; Artzel said that, because clips were massive, their arrival and unloading created quite a stir in the shop and required the assistance of many shop employees. Artzel also testified that Evans told her that she was to bill for parts that were not delivered or installed as a means of eliminating a shortfall in the parts inventory of a car dealership purchased by Alexander; she said that d'Atri dismissed her concerns about this procedure. Artzel said she was surprised to learn later that Alexander had paid Baxter and Auto Trim for these nonexistent parts. She also said that Evans was the only person in the body shop who had the authority to request checks be written.

Alexander's staff also testified that there were no freight documents pertaining to parts from Baxter and Auto Trim. They testified the freight documents in their records accounted for all parts in their invoices except for the parts supposedly supplied by Baxter and Auto Trim. They said that, though they would not necessarily have freight documents for parts purchased locally, the addresses they had for Baxter and Auto Trim were in Dallas and Waco, respectively. There was testimony that, nevertheless, at least one check to Baxter was deposited the day it was written, which was difficult to square with Alexander's location in San Angelo and Baxter's Dallas address. Contrary to the addresses for Baxter and Auto Trim given to Alexander's company, however, assumed-name certificates filed in Tom Green County as well as signature cards for the Baxter and Auto Trim's bank accounts in San Angelo banks showed the addresses of the two companies were the same as Evans's San Angelo residence.

Alexander's staff said that, when they originally expressed concern to Evans about the growing levels of accounts receivable, Evans produced a representative from an insurance company (first by phone and then in person) who blamed the slowdowns in payments on restructuring in the insurance company's claims handling organization, new computers, new employees, and general bureaucratic inefficiencies. When continued problems prompted further inquiry independent of Evans, other Alexander employees were unable to locate this representative (though they could not say certainly that he did not work for the insurance company).

Evans tried to undercut the State's evidence through cross-examination and other witnesses. Alexander employees admitted that sometimes cars carried as "work in process" were not in the shop because they were awaiting towing or otherwise in the customers' possession. Artzel, who assessed Alexander's records to explain many of the discrepancies, admitted that she had no formal training as a mechanic or appraiser. Alexander employees conceded that discrepancies between estimates, original repair orders, and invoices can occur absent fraud because some problems with damaged cars only become apparent after work begins. A former body-shop employee explained that sometimes cars that were considered totaled--based on estimates involving new parts--would nevertheless be repaired with used parts; he estimated that the Alexander body shop used an average of two clips per month, and as many as five clips some months.

On appeal, Evans also emphasizes the absence of certain evidence. He points to the lack of definitive proof that parts ordered from Baxter and Auto Trim were not installed and that the customers' insurance companies never reimbursed Alexander for the payments to Baxter and Auto Trim. He argues that there was no showing that the alleged thefts rendered the body shop unprofitable, as he argues theft on such a scale should have done.

We conclude that the evidence is legally and factually sufficient to support the convictions. Even with the contrary evidence, the jury could have chosen to rely on evidence that Evans directed that Alexander's money be sent to Baxter and Auto Trim, companies that he controlled, for parts that Alexander never received. Whether customers' insurance companies paid duplicative claims for nonexistent parts has no bearing on the theft charge; (4) the question is whether Evans deprived Alexander of money in exchange for parts he never intended to deliver. From the evidence, the jury could have concluded that Evans acquired the funds sent to Baxter and Auto Trim, through himself and Rachella Evans, whatever her connection to him. Though Alexander gave Evans authority to purchase parts, the jury could conclude that Alexander never consented to receive no parts for his money. The total claimed losses of more than $250,000 satisfies the amounts alleged to have been stolen; the aggregate of the lower ends of the ranges charged is $120,000 and the upper-end aggregate is $300,000. (5)

Evans's argument regarding the absence of evidence of unprofitability of the body shop does not withstand scrutiny. Huge losses from theft can coexist with immense profitability. More critically, however, the enterprise's profitability is irrelevant; the law does not distinguish between theft from successful and theft from unsuccessful enterprises. Further, the theft would not have affected the shop's profitability because the amounts stolen were carried as accounts receivable. The absence of a deficit is also explainable from an accounting perspective; after the theft came to light, Alexander collected on an insurance policy that covered most of the losses. The cash almost entirely replaced the accounts receivable in the asset column, cushioning the company from suffering a large loss. We resolve issues three and four in favor of the judgments.

Having resolved all issues in favor of the judgments, we affirm the judgments.





Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed on Both Causes

Filed: July 26, 2001

Do Not Publish

1. Which documents Evans challenges on appeal is not clear. The record references in his brief to "several instances of inconsistent information on various forms on Appellant's personnel file" do not correspond to instances in which Evans made objections at trial. It is not clear that Evans has preserved the error presented or presents the error he preserved. See Tex. R. App. P. 33.1(a), 38.1(h); Tex. R. Evid. 103. We will nonetheless consider generally the personnel documents referring to the identity of Rachella Leggett and Tina Evans admitted over Evans's objection.

2. For purposes of this opinion, the relevant staff includes chief financial officer Mark Cobb, former general manager Ted d'Atri, office manager Emma Allen, and body-shop office worker Evona Artzel. These staff members' testimony overlapped significantly and consistently.

3. "Totaled" cars are those declared complete losses because the repairs would be too costly compared to the value of the vehicle.

4. The only indications in the record (e.g., testimony regarding accounts receivable pending for unusual and disturbing periods, plus some actually rejected claims) are that these claims were not paid by the customers' insurers.

5. The charges alleged several individual transactions. Evans does not challenge the evidence to support any particular transaction.

mily: Times New Roman"> On appeal, Evans also emphasizes the absence of certain evidence. He points to the lack of definitive proof that parts ordered from Baxter and Auto Trim were not installed and that the customers' insurance companies never reimbursed Alexander for the payments to Baxter and Auto Trim. He argues that there was no showing that the alleged thefts rendered the body shop unprofitable, as he argues theft on such a scale should have done.

We conclude that the evidence is legally and factually sufficient to support the convictions. Even with the contrary evidence, the jury could have chosen to rely on evidence that Evans directed that Alexander's money be sent to Baxter and Auto Trim, companies that he controlled, for parts that Alexander never received. Whether customers' insurance companies paid duplicative claims for nonexistent parts has no bearing on the theft charge; (4) the question is whether Evans deprived Alexander of money in exchange for parts he never intended to deliver. From the evidence, the jury could have concluded that Evans acquired the funds sent to Baxter and Auto Trim, through himself and Rachella Evans, whatever her connection to him. Though Alexander gave Evans authority to purchase parts, the jury could conclude that Alexander never consented to receive no parts for his money. The total claimed losses of more than $250,000 satisfies the amounts alleged to have been stolen; the aggregate of the lower ends of the ranges charged is $120,000 and the upper-end aggregate is $300,000. (5)

Evans's argument regarding the absence of evidence of unprofitability of the body shop does not withstand scrutiny. Huge losses from theft can coexist with immense profitability. More critically, however, the enterprise's profitability is irrelevant; the law does not distinguish between theft from successful and theft from unsuccessful enterprises. Further, the theft would not have affected the shop's profitability because the amounts stolen were carried as accounts receivable. The absence of a deficit is also explainable from an accounting perspective; after the theft came to light, Alexander collected on an insurance policy that covered most of the losses. The cash almost entirely replaced the accounts receivable in the asset column, cushioning the company from suffering a large loss. We resolve issues three and four in favor of the judgments.