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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00135-CR
______________________________
ZAKEE KALEEM ABDULLAH, A/K/A ROBERT WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 11F0008-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Following a bench trial, Zakee Kaleem Abdullah, also known as Robert White, was convicted of theft in an amount of $1,500.00 or more, but less than $20,000.00 and was sentenced to two years’ imprisonment in state jail. Abdullah challenges the legal sufficiency of the evidence supporting his conviction and complains that the trial court erred in failing to grant his motion to quash the indictment. We hold that Abdullah’s conviction was supported by legally sufficient evidence, find that denial of his motion to quash was harmless, and affirm the judgment of the trial court.
I. Abdullah’s Conviction Was Supported by Legally Sufficient Evidence
A. Standard of Review
In reviewing the legal sufficiency of the evidence in this bench trial, we review all the evidence in the light most favorable to the verdict to determine whether any rational judge could have found the essential elements of the charged offense of theft beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (4–1–4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the fact-finder “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).
B. Factual Background
Rosie L. Duckett sustained an injury at work, which required surgery. Duckett began seeking legal advice for a worker’s compensation claim. A long-time acquaintance who worked at a law firm referred her to White, a false name used by Abdullah throughout his dealings with Duckett.[1] Duckett believed that Abdullah was an attorney and requested his legal assistance. Duckett paid Abdullah $2,000.00 upon his promise that he would assist her in filing a worker’s compensation claim and $1,500.00 for his legal assistance in filing a medical malpractice lawsuit. A written agreement between Abdullah and Duckett assured that the money would be returned if the worker’s compensation claim was unsuccessful.
After the passage of approximately nine months, it became clear to Duckett that her claims were not being pursued, and she made a demand for the return of her money. Abdullah told Duckett that he would return $1,500.00 of her money on a set date. That date passed, but the money was not returned. Instead, Duckett received a letter from Abdullah stating that he “was caught comming [sic] through Harris County with drugs cocaine” and that the money had been confiscated during the drug bust. Abdullah informed Duckett that he was “behind bars again,” and pleaded for her to send him an additional $100.00. Becoming concerned, Duckett took this letter to the police station. Abdullah had not been arrested. Instead, Duckett learned that Abdullah was a convicted felon out on parole during the time he promised to pursue her claims. Detective Kim Weaver testified that Duckett had been scammed.
C. Analysis
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. This standard applies “to all trials, whether to the bench or to the jury.” Id.
The indictment alleged that Abdullah
unlawfully appropriate[d], by acquiring or otherwise exercising control over property, to-wit: U.S. Currency, of the value of $1,500 or more but less than $20,000, from Rosie Duckett the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property.
Under the general theft statute through which Abdullah was charged, the State had the burden to establish that (1) Abdullah, (2) with intent to deprive the owner (Duckett) of property, (3) unlawfully appropriated property, (4) without the effective consent of the owner. Tex. Penal Code Ann. § 31.03 (West Supp. 2011); Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref’d). Appropriate means “to acquire or otherwise exercise control over property other than real property.” Tex. Penal Code Ann. § 31.01(4)(B) (West Supp. 2011). The Texas Penal Code provides that consent is ineffective if “induced by deception . . . .” Tex. Penal Code Ann. § 31.01(3)(A) (West Supp. 2011). Deception includes “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)(B) (West Supp. 2011).
Abdullah argues that the evidence was insufficient to demonstrate that the currency was taken without Duckett’s consent. He points to Duckett’s testimony stating she gave Abdullah the money freely and voluntarily pursuant to the signed agreements in exchange for “preparation of … worker’s compensation” and “legal assistance.” To demonstrate that he completed his end of the bargain, Abdullah cites to Duckett’s testimony that the worker’s compensation claim “was filed, but I didn’t get no response on it.” He had also sent Duckett’s doctor a settlement agreement, which was rejected.
Abdullah was a convicted felon on parole. Duckett was introduced to Abdullah through an acquaintance who worked at a law firm. She mistakenly believed Abdullah was an attorney with that law firm and requested his legal assistance. Abdullah’s written agreement to provide legal services failed to correct her impression. Based upon Abdullah’s misrepresentation as to “who he was and what his ability was to have helped,” Duckett agreed to hire him. She testified she had been deceived by Abdullah. Further, Abdullah was prohibited by law from attempting to obtain an economic benefit for himself by contracting to represent Duckett for actions involving her personal injuries.[2] We find the evidence legally sufficient to demonstrate that Duckett’s consent to pay the money was ineffective due to Abdullah’s deception.
Yet, “a claim of theft made in connection with a contract requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property.” Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref’d). Neither the mere failure to perform a contract nor the mere failure “to return or pay back money after failing to perform a contract, for the performance of which the money was paid in advance,” are sufficient to establish guilt of theft. Phares v. State, 301 S.W.3d 348, 352 (Tex. App.—Beaumont 2009, pet. ref’d). When alleging theft in connection with a contract, the State “must prove the defendant did not perform the contract and knew he was not entitled to the money, not merely that there is a dispute about the amount rightfully owed.” Jacobs v. State, 230 S.W.3d 225, 229 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
Abdullah was to assist in filing a medical malpractice lawsuit. He was also required to achieve a successful outcome for Duckett on her worker’s compensation or would face the obligation to return her money. There is nothing in the record indicating that the medical malpractice action was filed, and a successful outcome with the worker’s compensation claim was not achieved. Nonetheless, Abdullah did not return Duckett’s money when asked. Instead, Abdullah sent Duckett a letter claiming that the money was confiscated as a result of a drug bust, when, in fact, Abdullah had not been arrested. A fact-finder could have determined that Abdullah’s letter was simply an attempt to avoid returning money which he knew he was not entitled to. Thus, the evidence was legally sufficient for a fact-finder to determine beyond a reasonable doubt that Abdullah, without effective consent, acquired Duckett’s money with intent to deprive her of it.
Abdullah argues that theft by deception was not charged in the indictment, and a conviction based on this theory violated his due process rights. However, because the State did not allege any particular statutory manner of commission, the hypothetically correct jury charge included all alternative methods of commission contained in the theft statute, including theft by deception. See Geick v. State, 349 S.W.3d 542, 546 (Tex. Crim. App. 2011); Higginbotham v. State, No. 06-11-00094-CR, 2011 WL 6187139, at *1 n.1 (Tex. App.—Texarkana Dec. 14, 2011, no pet. h.).
We overrule Abdullah’s first point of error.
II. Abdullah Was Not Harmed by the Overruling of His Motion to Quash
We review de novo a trial court’s denial of a motion to quash. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Abdullah filed a motion to quash the State’s indictment complaining that he had not received effective notice to prepare his defense “due to the State’s failure to allege in the indictment the method of appropriation.” Abdullah was correct that the indictment did not allege the manner in which he unlawfully appropriated Duckett’s property. As we stated in Askari v. State, Abdullah’s motion to quash triggered “the State’s duty to further specify the manner of the alleged unlawful appropriation.” 129 S.W.3d 160, 166 (Tex. App.—Texarkana 2003, pet. ref’d). “A defendant has a constitutional right to sufficient notice so as to enable him or her to prepare a defense.” Hughen v. State, 265 S.W.3d 473, 481 (Tex. App.—Texarkana 2008), aff’d, 297 S.W.3d 330 (Tex. Crim. App. 2009).
However, “this due-process requirement may be satisfied by means other than language in the charging instrument.” Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003); Hughen, 265 S.W.3d at 481. “When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State’s theory against which he would have to defend.” Kellar, 108 S.W.3d at 313 (Tex. Crim. App. 2003); see Askari, 129 S.W.3d at 166–67.
The record in this case demonstrated Abdullah’s knowledge that the State would use the theory of theft by deception. Months before trial, Abdullah filed a motion “object[ing] to the first indictment to prohibit the State from using theories of effective concent [sic] was induced by deception or coercion.” He also filed a motion reciting that he was charged with “holding one self [sic] out as a lawyer” in another court, and arguing that this charge “should have been included in the original indictment of theft of property; because they are involving the same act.” Because Abdullah was aware that he would be defending the theory of theft by deception through his impersonation of an attorney, we find that the failure to allege the manner of illegal appropriation had no detrimental impact on his ability to present a defense. See Askari, 129 S.W.3d at 167.
We overrule Abdullah’s last point of error.
III. Conclusion
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: January 30, 2012
Date Decided: January 31, 2012
Do Not Publish
[1]While Duckett only knew Abdullah as Robert White, we refer to Abdullah’s real name in the remainder of this opinion.
[2]A person not licensed to practice law commits the crime of unauthorized practice of law if, with intent to obtain an economic benefit, they contract with any person to represent that person with regard to personal causes of action for personal injury or advise any person as to the person’s rights and the advisability of making claims for personal injuries. Tex. Penal Code Ann. § 38.123 (West 2011).
h; mso-pagination:widow-orphan'>A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Craddock v Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. Com. App. 1939).
The issue is whether Haines’ presence on the scheduled August 10, 2010, hearing date amounted to an “appearance” which entitled her to notice of the final hearing in the matter. Whether a party has “appeared” depends on the nature and quality of the party’s activities in the case. See In re Marriage of Runberg, 159 S.W.3d 194, 198 (Tex. App.—Amarillo 2005, no pet.); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ) (citting Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ)). The nature and quality of activities to be considered encompass the filing of written documents, see LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (per curiam), and personal activity. See Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.––Dallas 1998, no pet.); Smith, 672 S.W.2d at 617. “[A] party who examines witnesses or offers testimony has made an appearance for all purposes.” Bradford, 971 S.W.2d at 598. A party agreeing to temporary orders and announcing “ready” has made an appearance. Runberg, 159 S.W.3d at 198. “On the other hand, a party who is a ‘silent figurehead in the courtroom, observing the proceedings without participating,’ has not.” Bradford, 971 S.W.2d at 598 (quoting Smith, 672 S.W.2d at 617).
There was no sworn testimony taken at the August 10 setting, but there were statements made to the trial court. It is apparent from the record that Haines conferred with the Blacks’ counsel; the record reflects that the Blacks’ counsel told the trial court that Haines “doesn’t wish to relinquish custody or grant full access and that sort of thing at this point in time.” Haines then explained to the court that she had been approved for free legal assistance and had scheduled an appointment to meet with her legal aid attorney the day following the scheduled hearing. Haines asked the trial court for (and was granted) a continuance of the hearing, which was rescheduled for two days later.
While Haines neither announced “ready” nor examined a witness at the original time set for hearing of the temporary orders, her denial of the Blacks’ requested relief was explained on the record, and she directly participated in the hearing by answering the trial court’s questions, seeking a continuance, and explaining why a continuance was needed. We find that her actions amount to participation in the hearing; therefore, her presence at and her conduct at the hearing amounts to an “appearance,” although she filed no written response. Once a party has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the Federal Constitution. LBL Oil Co., 777 S.W.2d at 390–91; see also Tex. R. Civ. P. 245
Although she was entitled to notice of the setting of the final hearing, Haines received no actual or constructive notice of it; as a result, she has met the first prong of the Craddock test. See Craddock, 133 S.W.2d at 126. If a defendant did not receive actual or constructive notice of trial, due process prevents the application of the second and third prongs of the Craddock test. See Runberg, 159 S.W.3d at 199–200 (citing Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988)). Because we find that Haines made an appearance, due process entitled her to notice of the final hearing. See LBL Oil Co., 777 S.W.2d at 390–91; see also Coastal Banc SSB v. Helle, 48 S.W.3d 796, 798, 801 (Tex. App.—Corpus Christi 2001, pet. denied) (reversing default judgment against defendant who appeared at temporary injunction hearing but not given notice of default judgment hearing).
Accordingly, we reverse the trial court’s final order, set aside the default judgment, and remand to the trial court for a new trial.
Bailey C. Moseley
Justice
Date Submitted: May 11, 2011
Date Decided: May 27, 2011
[1]Geraldine, Jimmy, and Angela are collectively referred to herein as “the Blacks.”
[2]N.L.D.’s father, Robert Lee Dobbins, was incarcerated at the time the petition was filed. After receiving service, he filed a written answer, consenting to the Blacks’ petition. The final order appointed him as possessory conservator.
[3]In her motion to set aside the default judgment, she alleged that while driving to the hearing, her car broke down and when she called the court to inform them of her situation, she was told that the hearing would be reset.
[4]At trial, Haines failed to raise the issue of standing, however, standing, as a necessary component of a court’s subject-matter jurisdiction, cannot be conferred by consent or waiver, and may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993).
[5]There is no pleading or evidence that the Blacks have standing under the general standing provisions of Section 102.003 of the Texas Family Code.