In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00227-CR ______________________________
BRIAN HILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 15405
Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss
O P I N I O N
On a Saturday evening in January 1994, then fifteen-year-old J. B. was taken to a Paris, Texas, residence by three men: Katong Sanders--a nineteen-year-old male J. B. had previously dated and with whom she had previously had a sexual relationship--the twenty-two- or twenty-three-year-old Brian Hill, and Brian's nineteen-year-old brother, Terrell Hill. (1) Sanders and Terrell had sex with J. B. that night. (2) Though evidence suggests that Hill at least tried some form of sexual encounter with J. B., it also suggested that Hill was unable to attain enough of an erection to be able to achieve much, if any, penetration.
Initially charged in 1994 with sexual assault, Hill was finally tried in the Fall of 2005 on an amended indictment for sexual assault of a child, was convicted of the lesser-included offense of attempted sexual assault of a child, and was sentenced to three years' confinement, which was "stacked" on an existing sentence.
Hill asserts on appeal that stacking his sentence was improper and that he was improperly denied his right to a speedy trial. We affirm the judgment of the trial court because we hold (1) the trial court's oral stacking pronouncement and its written stacking order were not at variance, (2) the trial court did not abuse its discretion in using the phrase "ceased to operate" in its stacking order, and (3) Hill was not deprived of his right to a speedy trial.
(1) The Trial Court's Oral Stacking Pronouncement and Its Written Stacking Order Were Not at Variance
Hill asserts that the trial court's oral pronouncement of sentence cumulation and its written cumulation order were fatally at variance. (3) We disagree.
On the day of trial, the State filed a written motion asking that any sentence imposed due to the current trial be stacked with Hill's previous sentence for which he was "currently on parole," the previous sentence was identified as "Cause No. 13164 . . . the offense of Delivery of a Controlled Substance."
After the jury had returned its punishment verdict and had been discharged, the State reminded the trial court of its pending motion to cumulate. Defense counsel asked that the current sentence not be stacked "with [Hill's] prior conviction in '91." In further dialogue with the trial court, defense counsel estimated that, if Hill's parole was revoked, he would have about ten years more to serve on the prior sentence. The State argued that the sentences should be served separately. The trial court agreed: "All right. The Court then will grant the motion to run the sentences consecutively. It will be accumulated [sic] in addition to his other time." The trial court further pronounced that the sentence will "run consecutive with whatever charge he is now being held on."
The written judgment included this cumulation order:
The court orders that the sentence in this conviction shall run consecutively and shall begin only when the judgment and sentence in the following case has ceased to operate. Cause Number 13164, Delivery of Controlled Substance Group 1 < 28 Grams, which Defendant was convicted of on March 18, 1991 and sentenced to 15 years in the Texas Department of Criminal Justice Institutional Division.
Taking out of context one part of the trial court's oral pronouncement of sentence-- "consecutive with whatever charge he is now being held on"--Hill argues the oral pronouncement is at variance with the written order of cumulation. But, in making the argument, Hill overlooks the other utterances of the trial court and the context within which those utterances occurred. And the context of the oral pronouncement makes clear that all understood the pronouncement to be what was ultimately incorporated into the written order.
As can be seen from the above recitation of that context, the State had filed a written motion identifying the sentence on which it was requesting the current sentence be stacked. The dialogue among counsel and the trial court immediately before sentencing makes clear that all understood the identity of the existing sentence onto which the new sentence would be stacked--in fact, there was reference to only one prior sentence pending. There was no variance.
Hill cites various cases which found oral cumulation orders too vague to be enforced. See Olivas v. State, No. 10-03-00092-CR, 2005 Tex. App. LEXIS 608 (Tex. App.--Waco Jan. 26, 2005, no pet.) (not designated for publication) ("stacked on top of any other sentence [defendant was] required to serve"); Colliflower v. State, No. 2-03-366-CR, 2004 Tex. App. LEXIS 10467 (Tex. App.--Fort Worth Nov. 18, 2004, pet. granted) (not designated for publication) (sentence stacked on "whatever exists in your other cases that are pending"); Odlozelik v. State, 837 S.W.2d 825 (Tex. App.--Tyler 1992, no pet.) ("sentence ordered herein . . . shall run consecutive with any other sentence now being served"). In each case, however, the trial court's oral pronouncement of sentence cumulation was a general statement intended to pick up any prior sentence, or multiple prior sentences without specifying which. In none was a prior sentence identified. Here, the context of the trial court's oral pronouncement made clear the identity of Hill's single prior sentence onto which the trial court stacked the new sentence.
To be valid, an order directing sentences to be stacked need only "be sufficiently specific to allow the Texas Department of Criminal Justice-Institutional Division . . . to identify the prior with which the newer conviction is cumulated." Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998). The written cumulation order is sufficiently specific, (4)
and the oral and written orders are not at variance.
We overrule Hill's argument to the contrary.
(2) The Trial Court Did Not Abuse Its Discretion in Using the Phrase "Ceased to Operate" in its Stacking Order
Hill also attacks the sentence cumulation order on the basis that, because he was on parole from his prior sentence, that prior sentence had "ceased to operate" and thus was not capable of being used to stack with the new sentence. Therefore, argues Hill, the trial court abused its discretion in stacking the sentences. Again, we disagree.
Hill premises his argument on a 2000 opinion of the Texas Court of Criminal Appeals interpreting when a sentence "ceases to operate" within the meaning of paragraph (a) of Article 42.08 of the Texas Code of Criminal Procedure and when a sentence has been "completed" within the meaning of paragraph (b) of that article. See Ex parte Kuester, 21 S.W.3d 264, 266-73 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. Ann. art. 42.08(a), (b) (Vernon 2006). While incarcerated, Kuester struck a correctional officer, for which he was sentenced to four years' confinement, to begin only when his current sentence "ceased to operate." While Kuester construes the phrase as it is used in the statute, the case does not stand for the proposition that a trial court cannot use a former sentence, for which the defendant is on parole, as the base sentence on which to stack a new sentence. In fact, Kuester has no application to this case whatever.
At the time of sentencing, the fact that Hill was on parole under his one prior sentence was clearly understood by both counsel and the trial court. The trial court obviously intended to stack the new sentence onto Hill's prior sentence for which he was on parole. And that result was within the trial court's discretion in ruling whether to stack Hill's sentences. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (explicitly granting trial court discretion to stack). A trial court has the authority to stack a new sentence onto a prior sentence for which the defendant is then on parole. Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.--Amarillo 1993, pet. ref'd); Carpenter v. State, 828 S.W.2d 441, 442 (Tex. App.--Austin 1992, no pet.); Jimenez v. State, 634 S.W.2d 879, 881-82 (Tex. App.--San Antonio 1982, pet. ref'd).
The trial court did not abuse its discretion in stacking Hill's sentence. We overrule this assertion of error.
(3) Hill Was Not Deprived of His Right to a Speedy Trial
Finally, Hill claims that he was denied his right to a speedy trial and that the trial court erred in refusing to dismiss the case against him on that basis. We disagree.
This case is notable for the almost eleven years that elapsed between Hill's October 27, 1994, indictment and his October 11, 2005, trial. The events along the way are numerous:
January 22, 1994 Events occur which result in the charge in this case.
October 27, 1994 Hill is indicted in this case.
November 11, 1994 The State announces "ready" for trial.
December 26, 1994 Hill bonds out of jail.
March 27, 1996 Hill fails to appear at a pretrial hearing; bond is revoked.
November 21, 1997 Hill's retained counsel seeks to withdraw from representing him, asserting that Hill cannot be found and that he apparently has had no contact with "anyone" relative to this case "for almost three years." Motion granted.
August 6, 2004 Hill is arrested for failure to appear.
August 16, 2004 Hill requests defense counsel be appointed.
October 20, 2004 The then State's attorney, that is, the County Attorney of Lamar County, files a motion, based on conflict of interest, that all attorneys in the County Attorney's office of Lamar County be recused and a County Attorney pro tem be appointed from the County Attorney's office of neighboring Red River County. Motion granted.
May 16, 2005 Motion is filed for a different County Attorney pro tem to be appointed, namely Frank Long, without elaboration on the reason for the second appointment. Motion granted.
May 2005 Hill is tried and acquitted on a charge of failure to appear.
July 6, 2005 Hill files motion to be given a speedy trial on this charge or that this case be dismissed because of delay.
September 26, 2005 Pretrial hearing; (5) trial court grants Hill's motion for speedy trial.
October 11, 2005 Hill is tried and convicted on this charge.
Hill's motion for a speedy trial prays that "he be granted a speedy trial . . . or that [the] indictment be dismissed and that [Hill] be released from confinement." Hill did not bring his speedy trial motion before the trial court, but, on September 26, 2005, at a hearing set to consider the State's motion to amend the indictment, the trial court took it up sua sponte, immediately ordering a speedy trial for Hill, without further hearing. Hill was tried within approximately two weeks after that order. Thus, Hill received one form of the relief he requested. Thus, no error is shown, and nothing is presented for our review. See Cline v. State, 685 S.W.2d 760, 762 (Tex. App.--Houston [1st Dist.] 1985, no pet.).
Even if Hill's motion for speedy trial had sought only, or initially, a dismissal--that is, even if it had not sought just a speedy trial or had asked for a speedy trial only in the alternative that dismissal was denied--error would not have been shown.
At the September 26 hearing, Hill made no argument and tendered no evidence in support of his motion for speedy trial, except that the trial court noted the long delay in the case and Hill noted that his speedy trial motion had been on file for approximately two months. In assessing a speedy trial claim on appeal, we are not to consider arguments that are made for the first time on appeal and must base our assessment in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Because there were no arguments or evidence before the trial court in support of the motion for speedy trial, we must overrule this point of error.
Even considering the merits of Hill's speedy trial claim, the claim must fail.
"The Sixth Amendment to the United States Constitution guarantees the accused's right to a speedy trial." Zamorano v. State, 84 S.W.3d 643, 647 n.5 (Tex. Crim. App. 2002) (citing Barker v. Wingo, 407 U.S. 514, 515 (1972); Dickey v. Florida, 398 U.S. 30, 37 (1970); Smith v. Hooey, 393 U.S. 374, 377-78 (1969); Klopfer v. N. Carolina, 386 U.S. 213, 223 (1967)); State v. Fisher, 198 S.W.3d 332, 336 (Tex. App.--Texarkana 2006, pet. ref'd). "In addition, Article I, § 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy and public trial." Zamorano, 84 S.W.3d at 647 n.6; Fisher, 198 S.W.3d at 336.
When faced with a claim that an appellant's speedy trial right has been abridged, we are to evaluate, under the totality of the circumstances, Barker's four-part test: "the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused." Fisher, 198 S.W.3d at 336; Ex parte Martin, 33 S.W.3d 843, 845 (Tex. App.--Austin 2000), pet. dism'd, improvidently granted, 46 S.W.3d 932 (Tex. Crim. App. 2001); see also Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003). Based on the facts of the case, we assign varying weights to the Barker factors, and determine whether, taken together, they weigh either for or against finding a speedy trial violation. Fisher, 198 S.W.3d at 337. We also note that "[n]o one factor possesses talismanic qualities . . . ." Zamorano, 84 S.W.3d at 648 (quoting Barker, 407 U.S. at 533).
In our review, we defer to the trial court in its evaluation of factual issues and in drawing inferences from the facts. Kelly v. State, 163 S.W.3d 722, 726-27 (Tex. Crim. App. 2005). We review legal questions de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). The balancing test as a whole is purely a legal question. Id. We are to review the trial court's ruling on a motion to dismiss for want of a speedy trial in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313. And, the appellate court must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).
(a) The Length of the Delay
We measure the delay from the defendant's arrest or formal accusation. Shaw, 117 S.W.3d at 889 (citing United States v. Marion, 404 U.S. 307, 313 (1971)). Because this delay of approximately eleven years is presumptively prejudicial, the Barker inquiry would be clearly triggered. See Barker, 407 U.S. at 530; see also State v. Owens, 778 S.W.2d 135, 136-38 (Tex. App.--Houston [1st Dist.] 1989, pet. ref'd) (seven-month delay established prima facie showing).
Between the date of the indictment and the date of Hill's failure to appear, approximately seventeen months elapsed, Hill being incarcerated for only two of those months. Thereafter, for a period of approximately eight years and five months, Hill had absented himself and was not located. During that time, he suffered no incarceration connected with this case. Two months later came the initial recusal motion, followed seven months after that by the second motion to appoint a county attorney pro tem and the trial on Hill's related charge for failure to appear. Then, two months elapsed before Hill filed his motion for speedy trial, which was heard by the trial court approximately two and one-half months thereafter. From the time the trial court was made aware of the delays and granted the motion for speedy trial, only two more weeks elapsed before trial.
In summary, of the approximately 132 months of delay between Hill's indictment and his trial, Hill was incarcerated for sixteen months, legally free from custody for fifteen months, and absent without permission for 101 months. We weigh this factor moderately against the State.
(b) The State's Reason for the Delay
The second factor we consider is the justification the State offers for the delay. Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 648, 649-50. During the thirty-one months Hill was either incarcerated or properly bonded out of custody, there were two motions to change the attorney representing the State in this case and a trial on Hill's related charge of failure to appear. Then, of course, there was the substantial hiatus--101 months--during which Hill's location was not known. There are numerous factors justifying the significant delay. While admittedly the record is not well developed here due to the trial court's quick grant of a speedy trial without much of a hearing, the State was not given an opportunity to provide its reasons for delay at the hearing. We weigh the record on this factor slightly in favor of the State.
(c) Hill's Assertion of His Speedy Trial Right
Next, we consider the timeliness of Hill's assertion of his right to a speedy trial. Barker, 407 U.S. at 529, 531-32; Zamorano, 84 S.W.3d at 648, 651-52. Hill filed his motion for speedy trial after approximately 129 months had passed following his indictment, and approximately three months before his trial. Even then, he did not urge the motion to the trial court, but waited for the trial court to raise it at a hearing set for another purpose. And, at that hearing, Hill provided no evidence and made little or no argument in support of his speedy trial motion. We weigh this factor heavily against Hill.
(d) Prejudice Caused by the Delay
The final factor we consider is the extent to which there is evidence Hill was prejudiced by the State's delay. See Barker, 407 U.S. at 531-32; Zamorano, 84 S.W.3d at 648, 652-54. "Prejudice . . . should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect": "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532. Impairment of the defense is the most important of the three interests "because the inability of a defendant adequately to prepare his [or her] case skews the fairness of the entire system." Id.
Aside from approximately sixteen months of incarceration, much of which could also be attributed to Hill's other charge (failure to appear), there is no evidence of prejudice. We weigh this factor moderately against Hill.
(e) Weighing the Barker Factors
After individually assessing the four Barker factors, we consider them in the aggregate, along with any other relevant circumstances known to us. Id. at 533; Zamorano, 84 S.W.3d at 648, 654-55. We evaluate the strength of each Barker factor and balance the respective strengths of those factors against the relative weights of the remaining factors "in light of the conduct of both the prosecution and the defendant." Zamorano, 84 S.W.3d at 648; see also Barker, 407 U.S. at 530. While the delay was extensive, the vast majority of that delay was caused by Hill's absenting himself. The record contains a number of elements tending to justify much of the other delay. Hill asserted the right only at the last minute, only gently, and was granted a trial promptly thereafter. No prejudice appears other than incarceration, much of which is also attributable to another charge.
Hill was not denied his right to a speedy trial.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 11, 2006
Date Decided: January 11, 2007
Publish
1. For clarity, we will refer to Terrell Hill by his first name. Appellant Brian Hill will be referenced by use of his last name.
2. Earlier that afternoon, J. B. had agreed to meet with Sanders that evening. J. B. testified that, during the earlier conversation, Sanders had suggested that J. B. have sex with him and with some male friends of his that night but, in varying testimony, J. B. told Sanders she did not want to do that, or she would think about it, or "whatever." After going to the movies that evening, J. B. and a girlfriend met Sanders outside the theater and entered a car with Sanders, Hill, and Terrell. The car was owned and driven by Hill. After taking J. B.'s girlfriend directly home at her request, the four stopped at a gasoline station to "fill up" the car, at which time Sanders gave J. B. a quarter and directed her to call her parents to tell them she was running errands with her girlfriend's sister and would be home as soon as she was finished--admittedly a false story. After J. B. completed the call, the four proceeded to a residence owned by Hill and Terrell's mother, who was known to be at work at the time. There, the three men pursued their desires against J. B.
3. Hill does not argue that the written order contains insufficient information to make it a valid order, but asserts simply that the oral and written cumulation orders are at fatal variance. In citing cases with vague oral pronouncements, Hill inserts the element of vagueness into this point of error.
4. The Texas Court of Criminal Appeals recommends that a cumulation order identify the prior conviction onto which a new sentence is being stacked, by providing five pieces of information about that prior conviction: (1) the trial court case number, (2) the name of the trial court, (3) the conviction date, (4) the length of the sentence, and (5) the offense. Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984); Ward v. State, 523 S.W.2d 681 (Tex. Crim. App. 1975). But omitting one or more of those will not invalidate a cumulation order if the remaining identification of the prior conviction is sufficiently specific to give notice, both to the defendant and to the Texas Department of Corrections, of the base sentence onto which the new sentence is being stacked. Williams, 675 S.W.2d at 764. Here, the written order contained four of the five elements and, thus, was sufficient. Hill does not claim otherwise.
5. The trial court's comments during the hearing suggest that September 26 was the first time the trial court became aware of the existence or age of the case.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00052-CR
______________________________
JOHN RAYMOND CROSS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 22783
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
John Raymond Cross, a retired officer of the Texas Department of Public Safety, developed a gambling problem in his retirement years. To finance his gambling, Cross Aborrowed@ $128,952.00[1]from Thomas Hale Glover, a retired physician who was over sixty-five years of age. Cross misrepresented to Glover that the money was actually being used to finance two business ventures that would benefit Glovers home town of Deport, Texas. As a result, Cross was convicted by a jury for theft of property in excess of $100,000.00 but less than $200,000.00 from an elderly individual[2] and sentenced to twenty years imprisonment in the Texas Department of Criminal JusticeInstitutional Division. Cross appeals, complaining that the indictment was defective and that the evidence was legally and factually insufficient to support the verdict. We affirm the judgment of the trial court because (1) the indictment is without fundamental defect, (2) complaint of any nonfundamental error in the indictment is waived, and (3) the evidence is legally and factually sufficient to support the verdict.
Glover met Cross at church, but later developed a personal relationship with him in 2005, after Glover became ill with cancer. Early on, Cross ran errands for Glover and helped with household chores. Then, in July 2006, Cross approached Glover about a business venture involving the development of a door striker plate Cross invented, for which Cross indicated he had received a patent. In fact, no patent had been issued.
Glover agreed to make an interest-free loan to Cross to help finance the venture; he expected to be repaid. The initial $500.00 loan was made July 14, 2006. Other loans were made thereafter, mostly in larger amounts. Glover continued to make interest-free loans to Cross through March 2008, when the transactions were discovered by Glovers niece. During a range of months, on average, Glover wrote checks to Cross totaling $8,000.00 per month.[3] The only documentation of the loans are entries made by Glover in his day planner for the years 2007 through March 2008, indicating amounts paid to Cross, along with copies of the canceled checks.
At some point, Cross told Glover that Cross was paid $200,000.00 for his interest in the door striker venture, but he no longer had the money because a lawyer in the Dallas area had stolen it. In fact, Cross was never paid anything for the door striker venture.[4]
During the same time period, Cross approached Glover with a second business venture in need of financing, a trolling motor manufacturing business. Cross told Glover that he planned to develop a trolling motor he invented and that he would build a small plant in south Deport that would employ twelve to fifteen people. Cross managed to obtain money on a regular, ongoing basis from Glover for this venture through a chain of misrepresentations, beginning with a request for funds to obtain a patent on the trolling motor.[5] Next, Cross requested funding for an engineer, and thereafter requested funds to purchase equipment to manufacture the parts for the motor. In time, Cross invented more falsehoods to explain his need for additional funding,[6] when in fact, the representations about the trolling motor venture were entirely fabricated. There was no trolling motor business in need of financing; instead, the money Glover loaned to Cross was used by Cross for gambling.
Cross told Glover he could not repay the loans right away because the trolling motor equipment had been sabotaged. Cross maintained that he filed a lawsuit in Oklahoma to recover his losses and led Glover to believe that he recovered a large sum of money from the lawsuit. Cross explained to Glover that, because the money was in a bank in Oklahoma, it would be awhile before he could get it. Glover received no further reports on the status of these alleged funds before the discovery of Cross scheme.
Glover was motivated to finance Cross business ventures by Glovers love for his hometown of Deport. Glover worked for thirty years to build up the city, only to see it decline in his later years. Cross led Glover to believe that his business ventures would bring jobs and prosperity back to the city, which was experiencing rapid economic decline. Cross looked Glover in the eye, shook his hand, and told Glover that he would repay him. Glover believed Cross would keep his word.
Cross house of cards came tumbling down when Betsy and Jerome Chapman (Glovers niece and her husband) became concerned on discovering that Glover was involved in a business venture with Cross. The Chapmans confronted Cross regarding the alleged business venture and became convinced that Glover was being defrauded. Two days later, Cross visited Jerome Chapman at Chapmans place of business and admitted to Chapman that everything he told the Chapmans about the invention was a liethere was no patent and there was no invention.[7] Cross simply took Glovers money. Thereafter, the Chapmans reported Cross to law enforcement.
(1) The Indictment Is Without Fundamental Defect
An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. Tex. Const. art. V, § 12(b).
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Because this issue is based on undisputed facts, we will review de novo this issue of law. See generally Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Brossette v. State, 99 S.W.3d 277, 280 (Tex. App.Texarkana 2003, pet. dismd, untimely filed). Cross alleges that, because the indictment summarily alleges unlawful appropriation, rather than specifying the precise manner of unlawful appropriation,[8] the indictment is fundamentally defective. In support of this position, Cross relies on Johnson v. State, 547 S.W.2d 599 (Tex. Crim. App. 1977). In that case, the indictment alleged unlawful appropriation, but failed to specify the manner of unlawful appropriation, in accordance with Section 31.03 of the Texas Penal Code. The court concluded that, because the indictment failed to allege the specific type of theft, the indictment was fundamentally defective. Id. at 60001.
Article V, Section 12 of the Texas Constitution was amended in 1985, after the decision in Johnson, to provide that the presentation of an indictment vests the trial court with jurisdiction over the case. See Tex. Const. art. V, § 12; see also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990). A defendant waives any defect of form or substance in an indictment if no objection is made before the date trial commences. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).
Not all indictment defects are matters of substance such that a defendant must object to them before trial or lose the right to complain on appeal. Defects that render the instrument a nonindictment are of the type that would render it impossible for the defendant to know the offense with which he or she has been charged. See Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997); Mantooth v. State, 269 S.W.3d 68, 72 (Tex. App.Texarkana 2008, no pet.). Conversely, a charging instrument vests jurisdiction in the trial court, and thus must be objected to before trial, when the instrument is clear enough in its language that the defendant can identify the offense alleged. Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007).
The complained-of indictment in this case states, in pertinent part, that:
JOHN RAYMOND CROSS in Lamar County, Texas, anterior to the presentment of this Indictment, did then and there unlawfully appropriate, by acquiring or otherwise exercising control over property, to-wit: United States money, of the value of $100,000 or more but less than $200,000 with intent to deprive the owner, Thomas Glover, a person 65 years of age or older, of the property and all of the said property was obtained pursuant to one scheme or continuing course of conduct which began on or about July 1, 2006 and continued until on or about April 1, 2008.
Even though the indictment does not state the specific manner of unlawful appropriation, it charges unlawful appropriation of funds with sufficient detail to permit identification of the penal statute under which the State intended to prosecute.[9] Thus, the States indictment did not contain fundamental error. See Mantooth, 269 S.W.3d at 72.
(2) Complaint of any Nonfundamental Error in the Indictment is Waived
To preserve a complaint for appellate review, a party must generally have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a). More specifically, Article 1.14(b) of the Texas Code of Criminal Procedure provides:
If the defendant does not object to a defect, error or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. . . .
Tex. Code Crim. Proc. Ann. art 1.14(b).
Because Cross failed to object to the indictment, he waived his right to complain on appeal of any nonfundamental defect. The indictment here alleges that Cross unlawfully appropriated personal property with the intent to deprive the owner of the property. The State therefore alleged all that is necessary to give Cross notice of the crime of which he was accused. It is not necessary for the State to plead the manner of acquisition or the circumstances surrounding the offense. Berg v. State, 747 S.W.2d 800, 809 (Tex. Crim. App. 1984); Askari v. State, 129 S.W.3d 160, 165 (Tex. App.Texarkana 2003, pet. refd).
(3) The Evidence Is Legally and Factually Sufficient to Support the Verdict
In his second and third points of error, Cross contends the evidence is legally and factually insufficient because the evidence establishes only that, based on Cross misrepresentations, Glover did not charge interest on the loans. In other words, Cross misrepresentations induced Glover only to extend the loans free of interest; the misrepresentations did not induce Glover to extend the loans in the first instance. Cross contends this to be the case because Glover never testified that Cross use of the money was a material factor in making the loans. That is, Glover never testified that, had Cross borrowed the money for some other reason, such as making improvements to his home,[10] Glover would not have loaned Cross the money.
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
When conducting a factual sufficiency review, all evidence is viewed in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We are to determine if the evidence supporting the verdict, although legally sufficient, is nevertheless so weak that the verdict is clearly wrong or manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 41415.
While a factual sufficiency review allows a very limited degree of second-guessing the jury, the review should be deferential, with a high level of skepticism about the jurys verdict before a reversal can occur. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson, 204 S.W.3d at 417.
The legal and factual sufficiency of the evidence should be measured by the elements of the offense as defined by a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik, 953 S.W.2d at 240. Cross does not argue that the charge is incorrect or not one authorized by the indictment, and it tracks the indictment and the statute that criminalizes the conduct involved.
a. Evidence of Deception
The jury was charged to determine whether Cross, pursuant to one scheme or continuing course of conduct,[11] committed the offense of theft by unlawfully appropriating property with the intent to deprive the owner, Glover, a person sixty-five years of age or older. The jury was instructed that appropriation of property is unlawful if it is without the owners effective consent; that consent was not effective if induced by deception or coercion. Tex. Penal Code Ann. § 31.01(3) (Vernon Supp. 2009); § 31.03.
Deception was defined in the charge as:
creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.
Tex. Penal Code Ann. § 31.01(1)(A), (B).
Thus, we must determine whether the evidence is legally and factually sufficient to prove that (1) Cross created a false impression of fact, which Cross did not believe, and which was likely to affect Glovers judgment in extending the loan, or (2) Cross failed to correct a false impression of fact that he created, which Cross no longer believed to be true, and which was likely to affect Glovers judgment in extending the loan. Bruni v. State, 669 S.W.2d 829, 831 (Tex. App.Austin 1984, no pet.). The thrust of Cross argument is that Cross misrepresentations did not induce Glover to extend the loans to Cross, but only to make them interest free.
This case shares many similarities with that of King. In that case, the evidence showed that King deceived four individuals by representing that their money would be used for the sole purpose of preparing portfolios of their start-up businesses to present to investors in order to obtain financing. Instead of preparing and presenting portfolios to investors, King used the funds he collected for the sole purpose of paying his personal expenses and making purchases of items for his personal benefit, including payment of his personal credit card account, while representing to his clients that their money was being used for the purpose of obtaining millions of dollars in financing for their fledgling businesses. In doing so, King created a false impression of fact that affected the judgment of the four complainants. Id. at 14.
In King, the court held that, based on these facts, a rational fact-finder could have found that King had no intention of fulfilling his obligations to his clients; his promises and assurances to perform were merely a ruse to accomplish theft by deception. Id. at 15. Here, as in King, the record is replete with deception. Cross argues that the following testimony by Glover establishes that Cross misrepresentations induced only the interest-free aspect of the loans, rather than inducing Glovers decision to make the loans:
Q. [BY THE STATE] Okay. Why did you give him - - if this was some kind of business arrangement and he was going to repay you, why was it, Doctor, that you gave him an interest-free loan?
A. The city of Deport, thats the love of my life. It is currently having a tough time economically, its declining rapidly. I dont think theres more than one or two retail outlets in downtown Deport anymore. Deport had a thriving community at one time, especially when I was working. When you work for 30 years to build up something, and then you have to stand by and watch it decline, thats painful.
Q. So the interest-free loan was to help him build a business and attract business to Deport?
A. Yes, to encourage him. When I hear someone wants to help Deport, well, I want to help them help Deport.
Q. All right.
A. The interest-free - - I didnt feel like charging him any interest on these loans because I was just thrilled that somebody was trying to do something to help Deport.
In contrast, the evidence of deception squelches the notion that there was a lack of inducement by deception to make the loans. Sergeant Ted Gibson, an investigator for the Lamar County Sheriffs office, testified that Glover gave Cross $129,000.00 to finance his two fledgling businesses. Glover testified that he paid $128,952.00 to Cross to develop the door striker business and the trolling motor business.
b. The Door Striker Venture
In July 2006, Cross told Glover he invented and patented a door striker mechanism, but needed funds to develop the business.[12] On July 14, 2006, Glover wrote a check to Cross in the amount of $500.00. Glover could not recall exactly how much money he gave Cross for the door striker business, because Cross began to request funds to finance the trolling motor business very soon after the initial $500.00 check was written. The record is clear that the first $500.00 was given for the door striker business, followed soon thereafter by Cross= first request for funds to finance the trolling motor business.[13] Once Cross began requesting funds to finance the trolling motor business, there is no evidence that he continued to request funds from Glover for the door striker business.[14] The record indicates that, indeed, Cross was a member of a partnership, the purpose of which was to develop an adjustable strike plate.[15] While Cross told Glover this invention was patented when in fact it was not, there is no evidence that Glover specifically relied on this misrepresentation when he made the $500.00 loan to Cross. If the initial $500.00 loan is therefore removed from the equation, there remains in excess of $128,000.00 that Glover nevertheless paid Cross for the trolling motor venture.[16]
We further observe that additional misrepresentations regarding repayment of funds intended to finance the door striker venture,[17] in addition to the myriad misrepresentations regarding the trolling motor venture, are reflective of Cross= lack of intention to repay these funds at the time he received them. See, e.g., Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.Houston [1st Dist.] 1994, pet. ref=d).
c. Trolling for Money
Myriad misrepresentations flowed from Cross to Glover regarding the alleged trolling motor business. First, Cross told Glover he had an invention for a trolling motor that would make a lot of moneywhich would help the city of Deport because Cross would build a small plant in Deport to employ twelve to fifteen people initiallybut needed money for a patent search. Cross told Glover he needed additional money to apply for a patent after the patent search was completed, including money for related legal fees. Cross then required money to pay an engineer to draw up specifications from which the motor could be manufactured. Because all of this would cost so much money, Cross intended to seek corporate backing from the Indian Nation in Oklahoma. Cross then found Asomeone@ in the Sherman/Denison area who reportedly had agreed to manufacture a large piece of very expensive equipment necessary for Cross to build the motors. As all of this was ongoing, Cross reported that he had unfortunately been stopped by the Oklahoma Highway Patrol, because he did not have a permit to do business in Oklahoma. Cross related to Glover that he would need money for such a permit. Thereafter, Cross told Glover that the motor manufacturing business was doing well and that he should not worry about getting his money. In the interim, however, something had gone wrong with the trolling motor manufacturing business in Oklahoma, and Cross told Glover he needed to retrieve his equipment from the Indian Nation quickly, and needed money to do so.
Cross then told Glover that he was meeting a representative from the Yamaha Corporation in the Marshall/Longview area because Yamaha was interested in backing him, but Cross needed money to get the equipment down to Marshall. In reporting to Glover on the meeting with the Yamaha representatives, Cross indicated that, as he was demonstrating the motor, it began to emit smoke and fire. Glover was advised that the motor had been sabotaged by the Indian Nation representative because he was angry with Cross for taking his business elsewhere. Cross told Glover that he filed a lawsuit in Oklahoma to recover his losses on the motor and that he recovered quite a large sum. Because this money was in an Oklahoma bank, Cross told Glover he could not pay it back on time because he could not get Ahold@ of it.
The record shows that each of these statements was false. Cross admitted to Chapman that everything he told Chapman about the invention was a lie; he did not have a patent or any paperwork. He had simply taken the money. Cross admitted to Gibson that the trolling motor business was a complete fabrication. Cross explained to Gibson that he obtained money from Glover because he, Cross, was hooked on gambling. Glover testified, Of course, I know now that it was all a pack of lies. But I didnt know it then. Further, Glover testified to the following during trial:
Q. [BY THE STATE] Doctor, can you tell us how much money you gave to Mr. Cross over that period from July 2006 to March of 2008?
A. $128,952.00
Q. Dr. Glover, if you had learned that this defendant never had a trolling motor business, would you have given him the money?
A. No.
Q. Dr. Glover, if you had learned that this defendant never sold his interest in the door striking business, and never got $200,000 for that, or whatever it was, would you have loaned him that money?
A. No.
Q. Do you feel like you were deceived?
A. Oh, I was deceived all right.
This testimony establishes Glovers reliance on Cross misrepresentations as an inducement to make the loans, interest-free or otherwise, thus fulfilling the requirements of Section 31.01(1)(A) of the Texas Penal Code. We do not find the statute to allow the fine distinctions Cross asserts here. The statute is violated when the actor makes a false impression of fact, that the actor knows to be false, that is likely to affect the judgment of another in the transaction. Tex. Penal Code Ann. § 31.01. Cross misrepresentations meet this requirement, and were merely a ruse to accomplish theft by deception. See King, 17 S.W.3d at 15. There is ample evidence of deception in the record, which we find to be both legally and factually sufficient to support the jurys finding that Cross created false impressions of fact that were likely to affect Glovers judgment in extending loans to Cross. We overrule points of error numbers two and three.
We find no fundamental error in the indictment and find a failure to preserve error with respect to nonfundamental defects therein. Further, and after reviewing the record in the light most favorable to the verdict, we find that the evidence was sufficient to support Cross= conviction. A rational juror could have found that Cross had no intention of fulfilling his obligations under the agreements with Glover.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 20, 2010
Date Decided: February 9, 2010
Do Not Publish
[1]Glover also loaned Cross money to help pay for medical bills, but these amounts are not included in the figure listed above.
[2]See Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2009).
[3]Cross lured Glover into a second alleged business venture involving a trolling motor manufacturing business. It is not clear how the money was segregated between the two alleged business ventures.
[4]Dave Stevens was a business partner of Cross in the door striker venture. Stevens testified that he, Cross, and some others had registered the business name Adjustable Strike Defense and formed a general partnership to obtain a patent for an adjustable strike plate. After trying for several years to obtain a patent, the partnership was informed that the design could not be patented. Cross helped finance the patent search in 2000 or 2001, but was not involved in financing this project in 200607. In early 2006, a Frank Garen came on board and took care of the financing with the attorney. Cross played no role in financing after 2001.
[5]As was true of the door striker venture, Cross and Glover did not execute documents to formalize financing for the trolling motor business.
[6]Included were requests to fund (1) the purchase of or fabrication of trailers to haul heavy manufacturing equipment, (2) a permit to do business in Oklahoma, (3) a fine for transporting equipment without a proper permit, (4) a redesign of the motor to bring it up to engineering specifications, and (5) the transport of equipment from Oklahoma to Texas.
[7]The record does not specify whether Cross was referring to the door striker or trolling motor venture; however, the context of the testimony seems to indicate that reference was made to the trolling motor venture.
[8]Cross points out that Section 31.03 of the Texas Penal Code provides for three types of unlawful appropriation:
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owners effective consent;
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.
Tex. Penal Code Ann § 31.03.
[9]We note that the first page of the two-page indictment contains the following language:
CHARGE
THEFT OR [sic] PROPERTY MORE THAN $100,000
BUT LESS THAN $200,000 ELDERLY
TEXAS PENAL CODE, SECTION 31.03
[10]The record contains evidence that certain improvements were made to Cross house during the relevant time period. In the spring of 2007, Cross put new siding on his house and added new windows to the front of the house. New cabinetry and kitchen appliances were also added. In addition, Cross acquired two new boats in late 2006 or early 2007 and, in 2007, Cross acquired a new Jeep.
[11]Where amounts are obtained [by theft] 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 the offense. Tex. Penal Code Ann. § 31.09 (Vernon 2003); King v. State, 17 S.W.3d 7, 13 (Tex. App.Houston [14th Dist.] 2000, pet. refd).
[12]In fact, the door striker mechanism was never patented.
[13]Glover did not provide a precise date he began giving Cross money for the trolling motor business.
[14]The following is a breakdown of funds Glover paid to Cross for the years 20062008: funds paid in 2006 totalled $7,675.00, funds paid in 2007 totalled $96,151.00, and funds paid in 2008 totalled $25,126.00.
[15]A strike plate attaches to a doorframe to reinforce the door jam to keep the door from opening. The adjustable striker plate takes into account door movement which causes a misalignment of the door throw or dead bolt and the traditional striker plate.
[16]The testimony regarding the precise amount of money paid by Glover to Cross for each venture is not clearly defined. We do know, however, that requests for money to fund the trolling motor venture came very soon after the initial $500.00 payment by Glover. The most conservative approach would call for timing the financing of the door striker venture to the date Glover clearly relates to that business. On March 2, 2007, Glover wrote a check to Cross in the amount of $1,700.00. While this may or may not have been the first check Glover wrote to Cross for the trolling motor business, this is the first check the record reflects to have been written in support of the trolling motor business. Therefore, even if all of the funds paid by Glover through February 2007 were discounted for evidentiary purposesthus providing Cross with every conceivable benefit of the doubt regarding his intentions to repay funds received to finance the door striker venturewe, nevertheless, are left with an amount in excess of $116,000.00 paid to Cross for the trolling motor venture. This figure fits within the range set forth in the indictment.
[17]Cross told Glover that the door striker business was going to be a success; that someone offered him money for it; that he was paid approximately $200,000.00 for the sale of the door striker business; that he could not pay Glover back because a lawyer had taken the money; and that he was going to get the money from the lawyer, but the lawyer had stolen it. Cross then told Glover that the FBI was using that money to perform their projects, so Cross could not get his hands on the money. Regarding these misrepresentations, Gibson testified that Cross told him the door striker business didnt work out. Cross never assisted with the financing of the door striker business after 2001. Rather, Cross attributed all of the money he had taken from Glover to gambling.