NO. 10-90-021-CR
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
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ROBERT J. WILSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
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From 18th Judicial District Court
Johnson County, Texas
Trial Court # 26214
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CONCURRING OPINION
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The State alleged in the indictment that Appellant "unlawfully and intentionally, with intent to defraud and harm another, [made] a writing so that it purported to be the act of Roland Walden, who did not authorize the act and said writing was a release of lien." Appellant tried to quash the indictment on the ground that he could not prepare an adequate defense without "fair notice . . . of who was defrauded or harmed." His first point is based on the denial of the motion to quash.
The majority disposes of this point with the following comments:
There were only three possible persons (or entities), which could have been harmed by the forgery of the release of the first lien--or which [Appellant] could have "intended be harmed" by the forgery of the release of the first lien: the Burleson Bank, which purchased the second lien note from [Appellant] believing it to be a first lien and relying that the original first lien in favor of the Joshua Bank had been released; the Joshua Bank which owned the first lien, and which the forged released purported to release; and the Title Company who assumed or would assume that the first lien had been released upon their examination of the County Clerk's records. [Appellant] was a lawyer; was the obligor on the first lien note to the Joshua Bank; was the beneficiary of the second lien note to himself; had to be aware of the foregoing; and could not be surprised by evidence thereof.
We do not think that [Appellant] was denied any requisite item of notice; but assuming, without deciding, that he was so denied, that denial, under this record, could in no way prejudice his substantial rights, by impacting his ability to prepare a defense. Article 21.19 C.C.P.; Janecka v. State, Ct.Crim.Appls, 739 S.W.2d 813, 819; Adams v. State, Ct.Crim.Appls, 707 S.W.2d 900, 903.
The majority correctly states the two-pronged test for reversible error: (1) whether Appellant was denied some requisite item of notice; and, if so, (2) whether that denial prejudiced his substantial rights by impacting his ability to prepare a defense. See Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 1989); Janecka v. State, 739 S.W.2d 813, 820-21 (Tex. Crim. App. 1987). Although I agree with the disposition of the first point and the appeal, I write a concurring opinion because I disagree with the majority's analysis.
Essentially, the majority holds that Appellant was not denied a requisite item of notice because: (1) he was a lawyer; (2) only three entities could have been harmed by the forged release, i.e., two banks and a title insurance company; and (3) he had to know that information and could not be surprised by its proof. Adequate notice from which to prepare a defense must come from the charging instrument itself. Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App. 1985). One cannot simply say, as does the majority, that Appellant was not entitled to the information because he had to know the facts. See id.
A person commits an offense if he forges a writing with the intent to defraud or harm another. Tex. Penal Code Ann. § 32.21(b) (Vernon 1989). To obtain a conviction the State had to prove beyond a reasonable doubt that Appellant intended to defraud or harm another person or entity by forging the release of lien. The State could not discharge its burden of proof without necessarily establishing the identity of the other person or entity. Based on the analysis in Janecka, I believe that Appellant was denied a requisite item of notice and that the court erred when it refused to quash the indictment on that ground. See Janecka, 739 S.W.2d at 820.
Whether that denial prejudiced Appellant's substantial rights by impacting his ability to prepare a defense, the second prong of the test for reversible error, requires an examination of the record. See id. My disagreement with the majority opinion is in its failure to adequately discuss the facts in ruling on the second prong.
The crux of Appellant's trial strategy was to admit that he forged the release of lien but deny that he intended to harm or defraud anyone. He claimed that he forged and filed the release with the intent to facilitate paying his debts, not with the intent to defraud or harm anyone else. One cannot read the record without concluding that Appellant's intent was the most critical issue to the defense and the pivotal issue in the case from the State's viewpoint.
Appellant emphasized the importance of the intent element during voir dire, attempted to show through cross-examination of the State's witnesses that no one had lost any money as a result of the forgery, and testified to his lack of intent to harm or defraud when he forged the release. Two officers of the Burleson bank stated that they did not believe Appellant intended to harm anyone when he forged the release, but surmised that was merely trying to pay his debts. Appellant argued that the banks and the title company could not have been harmed because the forged release was a legal "nullity." He made two motions for an instructed verdict based on the State's failure to prove that he intended to defraud or harm another by forging the release. Countering this argument, the State pointed out in its cross-examination of Appellant that "somebody" had to lose if he was to gain from the forgery. The president of the Burleson bank admitted that the bank paid more for the Schneider note, thinking it was a first-lien note, than it would have if it had known the release was a forgery. The State also argued that Appellant knew the banks and the title company were harmed by the forgery because he had offered to indemnify them in his letter admitting the forgery.
Despite the critical importance of the intent element, the record does not reflect that Appellant's defense was hampered or impacted in any way by the court's error in not requiring the State to name the persons or entities that he intended to defraud or harm by forging the release. Appellant's letter admitting the forgery conclusively shows that he knew that only three entities could have been harmed by the forgery: both banks and the title company. See id. at 821. Considering the record as a whole, Appellant's defense did not hinge on the identity of those intended to be defrauded or harmed as much as it did on the fact that no one had been defrauded or harmed by the forgery. See id. Appellant has not demonstrated from the record that his defense would have been facilitated or made any easier if the State had been required to allege in the indictment the identity of those intended to be defrauded or harmed.
Although the court erred, in my opinion, when it denied Appellant an item of notice required to prepare his defense, that denial did not prejudice his substantial rights by impacting his ability to prepare a adequate defense. See id. For these reasons, I concur in the disposition of the first point and the appeal.
BOB L. THOMAS
Chief Justice
Opinion delivered and filed February 14, 1991
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that resulted in a credit to Berry's account was sufficient evidence to prove the amount was owed. Berry then had the burden of disproving the correctness of this amount. See Palmer v. Kamin, 238 S.W.2d 216, 217 (Tex. Civ. App.—Austin 1951, writ ref'd). Berry failed to meet this burden. Therefore, there was sufficient evidence for the court to conclude the amount was owed.
Berry further contends that, even if Federal has proved the three elements required, the evidence is still insufficient with regard to the amount owed because Federal attached only 48 of the 124 invoices to Federal's petition. Berry claims that in a case in which a plaintiff attaches to its petition invoices allegedly due, the accounts attached to the petition control rather than the allegations in the petition. However, the cases that Berry relies upon are cases on a sworn account in which the judge must depend upon only what is in the petition and is attached to the petition when deciding whether to grant summary judgment. See, e.g., Dean v. K-C Fuel Co., 524 S.W.2d 805 (Tex. Civ. App.—Austin 1975, no writ); W.A. Williams Constr. Co. v. C.W. Hubbard Electric Co., 658 S.W.2d 796 (Tex. App.—Beaumont 1983, no writ); Gallini v. Whelan, 625 S.W.2d 755 (Tex. App.—San Antonio 1981, no writ). This is not a suit on a sworn account, but a common-law suit on account. The court considered the evidence presented at trial rather than the invoices attached to the petition to make its decision. Therefore, the invoices attached to Federal's petition are not controlling. The evidence presented at trial is sufficient to support the finding that Berry owed Federal $91,500.12. The first point is overruled.
In his second point, Berry contends that the court erred in finding that there was no supply contract between Federal and Berry. Berry contends that the letter from Stuart to Berry, dated November 4, 1987, was a contract. The letter stated that Federal would supply Berry a minimum of 1,000 tons per month of oilfield barite. To have a contract, there must be either mutuality of obligations or valid consideration. Texas Gas Utility Co. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). The consideration or obligation may consist of either a benefit to the promisor or a detriment to the promisee. Tripp Village Joint Venture v. MBank Lincoln Centre, 774 S.W.2d 746, 749 (Tex. App.—Dallas 1987, writ denied). Berry claims the mutuality of obligations of the contract were that Federal would supply Berry a minimum of 1,000 tons of barite per month and, in return, Berry would purchase all of his materials from Federal. Berry's obligation is not stated in the letter. The letter also does not indicate a time and place for delivery. The letter, therefore, is not a complete contract and parol evidence may be considered to determine the intent of the parties. Shwiff v. Priest, 650 S.W.2d 894, 900 (Tex. App.—San Antonio 1983, writ ref'd. n.r.e.) To prove mutuality of obligations, Berry testified that at the time the letter was written, he agreed to purchase all his materials from Federal. However, conflicting testimony regarding the agreement was introduced by Berry's own fact witness, Robert Minyard. Minyard, who had worked for Oilfield Distribution Services, Inc., testified that Berry purchased various products, including barite, from Oilfield during 1987 and 1988. As a result, the court could have chosen not to believe Berry's testimony regarding his agreement to purchase barite only from Federal. From Minyard's testimony the court could have concluded that there was no agreement by Berry to purchase only from Federal, as Berry purchased from companies other than Federal after the letter was written. Without the mutuality of obligations, the letter was not a contract. There was sufficient evidence for the court to conclude that there was no mutuality of obligations and, therefore, no contract. Point two is overruled.
Having overruled points one and two, we need not consider Berry's remaining points. There was sufficient evidence for the court to find that Berry owed Federal $91,500.12. for goods sold and delivered and that no supply contract existed between Berry and Federal.
We affirm the judgment.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed February 3, 1993
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