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NUMBER 13-02-499-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
DANIEL SOLIS REYNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
M E M O R A N D U M O P I N I O N
Before Justices Hinojosa, Rodriguez, and Wittig
Opinion by Justice Wittig
A jury found appellant, Daniel Reyna, guilty of two counts of misusing official information,[1] two counts of tampering with governmental records,[2] and one count of securing execution of a document by deception.[3] Appellant appeals these convictions in three issues. We affirm the judgment of the trial court below.
I. Background
Appellant was the city administrator for the City of Los Fresnos. As city administrator, appellant was in charge of the day-to-day operations of the City. Appellant=s position allowed him access to the City=s funds, thus entitling him to hire contractors to perform various work projects for the different departments under appellant=s supervision. Around October 2001, appellant contracted with Armando Ramirez to pave a tennis court that also doubled as a basketball court, which the City owned. Ramirez was also awarded a city contract to build a dog pound for the City. The evidence showed that Ramirez either completed or substantially completed the work on the court. The evidence also showed that Ramirez performed work to build the pound; however, there was contradictory testimony as to the sufficiency and quality of Ramirez=s work. Nonetheless, the evidence showed that the paving of the court was not accounted for in the general budget. Appellant took funds from a reservoir account under the City=s Parks and Recreation Department to finance the paving of the court. The evidence also showed that Ramirez received more money than was budgeted for the building of the pound. Furthermore, the evidence showed that appellant did not abide by the City=s competitive bidding policy in procuring the work for Ramirez.
Appellant=s arrangement with Ramirez came to light in the fall of 2001. Michael Meyn, a resident of the City, filed an Open Records request[4] to view the public records for the work done to the court. The Abids@ which appellant turned over to Meyn pursuant to the request were forged bid proposals from at least two companies. The bid proposal from Ramirez=s company may have also been forged. Meyn immediately realized the bid documents were false, as they were all written on the same invoice pad, and the respective companies= letterheads were simply photocopied from their advertisements in the phonebook. In order to substantiate his suspicions, Meyn telephoned these respective companies and confirmed that they had not placed any bids with the City for work projects. Meyn then reported this information to the appropriate authorities who subsequently prosecuted appellant.
II. Legal Sufficiency
Appellant=s first issue is that the evidence is legally insufficient to sustain a guilty verdict of the offenses of misuse of official information, tampering with governmental records, and securing execution of a document by deception. When an appellate court reviews a conviction for legal sufficiency, the court views the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S.307, 319 (1979)). An appellate court considers all evidence presented at trial, but may not re-weigh the evidence and substitute its judgment for that of the jury. See King, 29 S.W.3d at 562. We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
a. Misuse of Official Information
For the offense of misuse of official information, the State was required to prove beyond a reasonable doubt the elements of the Texas Penal Code section 39.06. Therefore, the State had to prove beyond a reasonable doubt that appellant (1) was a public servant, (2) he relied on information to which he had access by virtue of his office, (3) the information had not been made public, and (4) he acquired or helped another acquire a pecuniary interest because of the information.[5]
The evidence, when viewed in the light most favorable to a guilty verdict, shows that appellant was undeniably a public servant. A public servant is not specifically defined in section 39 of the penal code, but the jury charge defined public servant as Aa person elected, selected, appointed, employed, or otherwise designated as . . . (a) an officer, employee, or agent of [the] government . . . .@ Thus, there is no serious contention that appellant, as city administrator, was not a public servant per the definition in section 39.06 of the Texas Penal Code.
Additionally, the evidence shows that appellant relied on information to which he had access to by virtue of his position, which had not been made available to the public, in order to gain a pecuniary advantage or to help another person gain a pecuniary advantage. The evidence showed that as part of his official duties, appellant had access to bids submitted to the City for various work projects, in particular, the bids for the pavement of the court. The evidence also showed that appellant controlled the bid process with respect to the pavement on the courts and the building of the pound.
The evidence also shows that appellant forged the bids from two other companies to create an appearance that he was following the City=s bidding policy. Then, based on these sham bids, appellant was able to ensure that Ramirez=s bid was the lowest and, therefore, winning bid. Thus, appellant and Ramirez relied on the information, which appellant had access to by virtue of his office, in order to manipulate the bidding process.
Appellant contends, however, that he cannot be found guilty of the offense of misusing official information because the bids were public information, which eliminates the essential element that the information not be generally accessible to the public. Appellant asserts that the bids would later be made available to the public, to Meyn in particular, by virtue of an Open Records request, and therefore, the element that the information had not been made public is wanting. Appellant, however, fails to note the purpose of competitive bidding is to keep the bids and the information therein secret, before the winning or lowest bid is awarded. At the moment appellant fabricated the bids, the bids should not have been public information. In fact, both the City=s policy and section 522.104 of the government code specifically exempt from public disclosure any information that would give advantage to a competitor or bidder if released. Thus, during the bidding process itself, which was controlled by appellant, other bids are prohibited from disclosure by law, and therefore, the public does not have access to them.
Finally, the last element, which requires someone to gain a pecuniary advantage, is clearly met. Ramirez inured a pecuniary benefit by receiving contract work from appellant. Thus, appellant=s forged bids insured that Ramirez would gain the contract work and a profit from performing the work. Additionally, the State presented evidence that showed that appellant personally cashed the checks made out to Armando Ramirez Construction, and thus, he profited directly from the scheme. Accordingly, we conclude, there is legally sufficient evidence to show that the State proved beyond a reasonable doubt all of the essential elements that appellant committed the crime of misusing official information.
b. Tampering with Governmental Records
Appellant contends that the evidence regarding tampering with governmental records was legally insufficient because the State failed to prove that he made, presented, or used any record, document or thing with knowledge that it was false or that he acted with intent that the item(s) be taken as a genuine governmental record.
The jury convicted appellant of two counts of tampering with a government record in violation of section 37.10[6] of the penal code.[7] Specifically, the jury found that a bid in the amount of $12,305, purporting to come from Mission Paving Co., Inc., and a bid in the amount of $11,987, purporting to come from R&R Paving Co., were governmental records that had been tampered with.
When viewing the evidence in the light most favorable to the verdict, the State proved, beyond a reasonable doubt, that appellant intentionally and knowingly falsified the two bid amounts from Mission and R&R. These bids then were used as a genuine record or document in the bidding process for the asphalt work on the court. Employees from both companies, who controlled their respective company=s bidding or had personal knowledge of the projects on which their companies submitted a bid, testified that Mission and R&R never submitted bids to perform work on the courts in the City. They testified that their respective companies never made either a written, electronic, or telephone bid.
Additionally, the evidence established that appellant presented the bids to the City Finance Director, Candy Medina, as part of the City=s competitive bidding policy, in order to acquire checks to pay for the project. Furthermore, the evidence showed that appellant tendered the falsified bids to Meyn in response to his Open Records request. Thus, appellant attempted to pass these false bids as genuine governmental records to Medina and Meyn, when in fact they were forged documents, not genuine records. Therefore, the evidence, when viewed in the light most favorable to the verdict, proves that appellant made, presented, and used documents under circumstances showing that he had knowledge of their falsity and the intent that they be taken as genuine governmental records. Accordingly, there is legally sufficient evidence to show that the State proved beyond a reasonable doubt all of the essential elements that appellant committed two offenses of tampering with governmental records.
c. Securing Execution of Document by Deception
Finally, appellant argues that the State failed to provide legally sufficient evidence to prove the essential elements of the offense of securing execution of a document by deception as proscribed in section 32.46 of the Texas Penal Code. [8]
When viewing the evidence in the light most favorable to the verdict, the evidence shows that appellant requested that the City=s finance director, Candy Medina, execute checks payable to Armando Ramirez Construction. Medina testified that she requested appellant provide proper documentation, namely the bids of three companies pursuant to the City=s policy on competitive bidding, in order to issue such checks. The State argued that since appellant did not have three bona fide bid proposals, he forged the proposals from Mission and R&R in order to procure checks from Medina.
Medina testified that she would not have executed the checks if she believed the documentation provided by appellant was not true. Thus, appellant=s actions directly and proximately caused Medina to execute checks she would not have otherwise executed. Moreover, Los Fresnos Mayor Manuel Abrego testified that he would not have authorized his signature, which was also needed in order to execute the checks, if he knew the bids were improper. Therefore, appellant=s feigned bids created a false impression that the bidding process for the work projects was proper. This caused others to execute checks that they otherwise would not have. Thus, when viewing the evidence in the light most favorable to the verdict, the evidence proves beyond a reasonable doubt that appellant was guilty of securing execution of a document by deception.
When viewing the evidence in the light most favorable to the verdict, we find that a rational trier of facts could have found the essential elements of the above mentioned offenses beyond a reasonable doubt. Accordingly, we overrule appellant=s first issue that the evidence was legally insufficient to sustain a guilty verdict of the offenses of misuse of official information, tampering with a governmental record, and securing execution of document by deception.
III. Factual Sufficiency
Finding the evidence legally sufficient, we proceed to appellant=s factual sufficiency claims. Appellant asserts that the evidence is factually insufficient to sustain a guilty verdict of the above mentioned crimes. Under a factual sufficiency standard of review, the appellate court reviews Aall the evidence, both for and against the finding,@ to see if the evidence demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury=s determination. See King, 29 S.W.3d at 563 (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc)). The reviewing court is not free to set aside a verdict merely because it feels that a different result is more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Thus, the reviewing court is to take a neutral approach when reviewing the evidence and can only reverse the fact finder if it is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@ See Thompson v. State, 93 S.W.3d 16, 21 (Tex. Crim. App. 2001). Finally, a decision is not manifestly unjust, shocking to the conscience, or clearly biased merely because the fact finder resolved conflicting views of the evidence in the State=s favor. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We are mindful of the jury=s unique role as fact finder and their power and duty to resolve conflicts in the evidence. See Johnson, 23 S.W.3d at 9; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (ruling that questions regarding credibility of witnesses and weight to be given to their testimony are to be resolved by the finder of facts); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). We must assume that the jury resolved all conflicts and inferences in favor of the verdict, and we must defer to them the powers to do so. See Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc). We also apply a hypothetically correct jury charge analytical construct in the context of a factual sufficiency review. See Adi v. State. 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d).
The State=s evidence was thoroughly discussed above. We now turn and examine the appellant=s proffered evidence at trial. Appellant called four witnesses to testify on his behalf. None of these witnesses offered testimony to disprove or counter the State=s claim that appellant fabricated the bids from Mission and R&R. In fact, the first two of appellant=s witnesses merely testified as to the accuracy or credibility of Meyn=s testimony. However, Meyn only unraveled appellant=s scheme when he requested to view the public documents for the work project. Whether Meyn previously knew of or heard of appellant, as appellant=s witnesses contended contrary to what Meyn stated, is irrelevant as to appellant=s guilt of the crimes. Furthermore, appellant=s last two witnesses merely testified that Ramirez did other contract projects for the City and that appellant previously owned a business before becoming the city administrator. These two witnesses did not offer anything to contradict or counter appellant=s role in the scheme.
Therefore, in this case, the same facts that make the evidence legally sufficient also make it factually sufficient. The evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, appellant=s second issue is overruled.
IV. Search and Seizure
In appellant=s third issue, he asserts that the trial court erred by admitting into evidence various items that were obtained at his office and from inside his desk without a search warrant or consent.[9] Appellant asserts that his rights under both the federal and state constitutions have been violated.
The proper harm analysis in reviewing a case when evidence is obtained from an illegal search or seizure is a constitutional analysis. See Bumper v. North Carolina, 391 U.S. 543, 550 (1968); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Thus, when a trial court errs in denying a motion to suppress evidence that was illegally obtained, an appellate court must reverse unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a); Hernandez, 60 S.W.3d at 108.
In this case, we hold that regardless of whether there was a constitutional violation, the trial court=s admission of seven exhibits constituted harmless error. The evidence which appellant objected to were State=s Exhibits 39 through 45. These exhibits consist of an official record for appellant=s business, a written quote and proposal from appellant=s business, and three blank checks from appellant=s defunct business account. These exhibits were not at issue in this trial because they were irrelevant to the question of whether appellant manufactured bid documents that were used to procure work for his friend and acquired checks for those work projects. Further, the evidence adduced at trial demonstrated appellant provided false bids to the City=s finance director in order to procure the execution of certain checks, and appellant tendered these same manufactured bids to Meyn and held them out to be genuine governmental records. Thus, there was ample evidence, both legal and factual, to convict appellant of the aforementioned crimes, with or without the admission of these objectionable items. Appellant=s issue on this ground is overruled.
V. Conclusion
In sum, we hold that there was both legally and factually sufficient evidence to convict appellant of the crimes with which he was charged and that the admission of evidence seized from his office constituted harmless error. Accordingly, we affirm the judgment of the trial court.
Don Wittig
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 5th day of January, 2006.
[1]Tex. Pen. Code Ann. ' 39.06 (Vernon 2004).
[2]Tex. Pen. Code Ann. ' 37.10 (Vernon 2004).
[3]Tex. Pen. Code Ann. ' 32.46 (Vernon 2004).
[4]See Tex. Gov=t Code Ann. ' 552 (Vernon 2004).
[5]Section 39.06 requires the following elements:
a. A public servant commits an offense if, in reliance on information to which he has access by virtue of his office or employment and that has not been made public, he:
1. acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by the information; . . .
d. In this section, information that has not been made public means any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code.
Tex. Pen. Code Ann. ' 39.06 (Vernon 2004).
[6]Section 37.10 of the penal code states the following:
2. A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
See Tex. Pen. Code Ann. ' 37.10 (Vernon Supp. 2004-05).
[7]The jury also found appellant not guilty on two other counts of the offense of tampering with governmental records with respect to bids or quotes for the contract on the dog pound.
[8]Section 32.46 provides as follows:
(a) A person commits an offense if, with intent to defraud or harm any person, he, by deception:
(1) causes another to sign or execute any document affecting propertyor service or the pecuniary interest of any person . . .
(d) In this section, Adeception@ has the meaning assigned by Section 31.01.
See Tex. Pen. Code Ann. ' 32.46 (Vernon Supp. 2004-05).
Section 31.01 (1) of the Texas Penal Code defines Adeception@ to mean, among other things:
(A) 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 [or];
(B) 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.
See Tex. Pen. Code Ann. ' 31.01(1) (Vernon Supp. 2004-05).
[9]Ordinarily, when an appellate court reviews a trial court=s ruling on a motion to suppress evidence, the reviewing court Agives almost total deference to a trial court=s determination of historical facts@ and reviews the court=s application of the law of search and seizure de novo. O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)); see also State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). However, in this case we do not address whether the search and seizure was constitutional. Instead, as discussed below, we hold that it was harmless error to admit the challenged evidence, if indeed it should have been excluded.